Ward v. Atlantic Coast Line Railroad Company

• Decision Date: 12 March 1959
• Docket Number: No. 17166.,17166.
• Citation: 265 F.2d 75
• Parties: Raymond P. WARD, Appellant, v. ATLANTIC COAST LINE RAILROAD COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

265 F.2d 75 (1959)

Raymond P. WARD, Appellant, v. ATLANTIC COAST LINE RAILROAD COMPANY, Appellee.

No. 17166.

United States Court of Appeals Fifth Circuit.

March 12, 1959.

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Neal P. Rutledge, Earl Faircloth, Miami, Fla., for appellant.

Sam T. Dell, Jr., Gainesville, Fla., Lazonby, Dell, Graham & Willcox, Gainesville, Fla., of counsel, for appellee.

Before RIVES, TUTTLE and CAMERON, Circuit Judges.

TUTTLE, Circuit Judge.

This is an appeal by the plaintiff from a judgment following a jury's verdict for the defendant in an action under the Federal Employers' Liability Act, 45 U. S.C.A. §§ 51-60, for damages for personal injuries allegedly caused by the negligence of his alleged employer, the railroad defendant.

Before we can consider the merits of the appeal we must pass upon appellee's motion to dismiss for failure to file timely notice of appeal.

Judgment was entered against appellant in the United States district court in Gainesville, Florida, on December 5, 1957. According to appellant's uncontroverted affidavits, appellant's counsel in Miami, Florida, mailed a notice of appeal by air mail to the clerk of the district court in Gainesville, depositing it in a United States mail depository at about 5:00 P.M. on January 2, 1958. The clerk's office in Gainesville has only one employee, the deputy clerk. She was absent from the office on annual leave on January 2 and 3, 1958, and the office was therefore not open on those days. The office was also closed the following day, Saturday, January 4, 1958. It had been regularly closed on Saturdays since February 13, 1956, due to the fact that in order to keep the office open six days a week with only one employee it would have been necessary for her to work more than the forty hours of a federal employee's regular work-week.

Since no one was there to open the mail until Monday, January 6, appellant's notice of appeal was not marked as received and filed by the clerk's office until that date, which was one day after the time for filing notice of appeal had expired.¹

Appellant's affidavits assert that the notice should, in the ordinary course of air mail delivery, have arrived at the post office in Gainesville on Friday morning, January 3, and if so it would have been received in the clerk's office, located in the post office (or received in the post office box which appellant states is maintained by the clerk), during regular business hours on January 3 if the office had been open as required by F.R.Civ. P. rule 77(c), 28 U.S.C.A.² His affidavits further assert that if, contrary to the best recollection of the clerk who mailed it, the notice was sent by regular mail rather than by air mail, then the notice of appeal would have been received during business hours on Saturday, January 4. Appellant contends that Rule 77(c) required the Gainesville office to be open on Saturday mornings, which were regular business hours in that community; and that appellant's counsel had a right to assume that the clerk was complying with this requirement.

Accepting these uncontroverted facts as true, we conclude that appellant is entitled to the presumption that his notice of appeal was placed in the post office box of the clerk of the district court within the required time, notwithstanding the failure of the clerk or his deputy manually to take possession of and mark the notice "filed" until Monday, January 6, 1958. Being in the custody of the clerk, it met the requirement³ that it be "actually" received in the clerk's office within the thirty-day period.

In so ruling we do not depart from the well-established principle that the jurisdictional⁴ requirement that notice be filed within thirty days is not met by deposit of notice in the mail in time for it to reach the clerk's office in the usual course of mail delivery within the time allowed.⁵ The distinction here is that the failure to mark the notice "filed" can be attributed to the absence of the clerk, whereas in the usual case such failure is taken to indicate that it was not actually in the custody of the clerk.

Nor do we pass upon the correctness of the rule applied in Casalduc v. Diaz, 1 Cir., 117 F.2d 915, cited by appellee. In that case the appellant's counsel swore that he had slipped a notice of appeal under the clerk's door after business hours. The court held that the notice had not been placed in the actual custody of the clerk by this action and therefore it had not been filed according to law. The court clearly believed that the attempted filing had taken place after business hours on the last day of the legal period. Under such circumstances, it stated that the proper procedure for counsel to follow was to seek out the clerk or deputy clerk and to deliver the notice to him personally. We are not presented with such circumstances here. We have concluded that the notice was placed in the clerk's post office box during regular business hours on a day of the week when the clerk's office was regularly open for business. We see no reason to require counsel in another city to take affirmative steps to learn whether anyone was in the office during such hours and if no one was in the office, to seek out the clerk or his deputy.

We hold nothing more than this: It is the time when the clerk receives actual custody of the notice which determines whether this court has jurisdiction over the appeal,⁶ and under circumstances such as are present in this case, the notice may be received in the clerk's custody and control even though it has not yet been manually handled and marked "filed" by the clerk or his deputy.

We turn to a consideration of the merits of this appeal.

The trial below produced conflicts in the evidence relating to several major issues, but only one of these issues is argued on appeal. This is the issue as to whether appellant was working as appellee's employee when his injury allegedly occurred. He was allegedly injured while working on a privately owned siding which was connected with appellee's tracks. The siding was built by the defendant railroad for the primary use, and at the expense, of a turpentine company which owned the land on which it lay, but during the season when watermelons were harvested in that neighborhood the siding was also, by permission of the owner, used to load cars with watermelons, which would be shipped on appellee's tracks. It was stipulated by the parties that the siding was used in interstate commerce.

The turpentine company had agreed with the railroad that it, the turpentine company, would maintain and repair the side tracks so as to conform to the railroad's maintenance and safety specifications. Appellee's track foreman in charge of the section of appellee's track which connected with the turpentine company's siding was, according to appellee's rule book, responsible "for the proper inspection and safety of tracks, bridges and trestles (including those privately owned), culverts and station grounds" within this section. However, he testified that his duty with respect to private tracks was limited to inspection and did not include the duty of maintenance which he had with respect to the railroad's own tracks. This was reiterated by the testimony of the superintendent of the local district of the Atlantic Coast Line Railroad.

The foreman, I. H. Keene, inspected the siding shortly before the day of the accident here involved and he found that the track needed repair. He informed the turpentine company's president, D. P. McKenzie, about these findings, and as was customary, McKenzie asked Keene if he would see that the tracks were fixed so as to meet the railroad's regulations. Keene agreed to do this, and on Friday, May 21, 1954, after his repair crew had finished its regular, five-day, forty-hour work-week, he asked the crew, which included appellant as its apprentice foreman, if it would like to repair the McKenzie siding the following day, for which it would be paid at overtime rates. The crew agreed to do it, and the next day, Saturday, the men reported to work at the railroad's tool shed at their usual reporting time, took their regular railroad tools, and proceeded to the McKenzie siding, where they began replacing some defective ties. McKenzie was present when the men arrived at the job site, but he left soon thereafter and the work was carried out under foreman Keene's direction. In the course of this work, appellant allegedly received the injury which is the subject of this action.

Pointing to these facts, appellant says the injury occurred in the course of his employment by appellee and he asserts that appellee cannot avoid liability for it by means of any arrangement with McKenzie governing maintenance of the siding. Appellee contends, on the other hand, that the rest of the facts of the case support a finding that appellant was working for McKenzie and not for appellee.

The facts relied upon by appellee include the following: It was admitted that this siding was owned by the turpentine company, not by appellee. It was stated without contradiction by the witness Keene that he had no duty to keep privately owned sidings in repair.⁷ Appellee's other witnesses testified that the railroad company itself had no such duty.

Keene testified that he and his crew had repaired private tracks on numerous occasions and that they had never done it on a regular work day; it had always been on Saturday, their day off. Appellee's witnesses admitted that appellee's management knew of this practice whereby the railroad's employees, using the railroad's tools, repaired privately-owned sidings on their day off; but they testified that no one connected with appellee's management had ordered Keene to make these repairs.

Keene testified, and it may be taken as true, that the crew's regular Atlantic Coast Line wages were paid twice monthly by Atlantic Coast Line checks, but when it worked on...