Joint Council Dining Car Employees Local 370 v. Delaware, L. & W. R.

See case details

LAURO v. UNITED STATES

No. 272, Docket 20185

Circuit Court of Appeals, Second Circuit

July 15, 1946

162 F.2d 32

been granted by the Supreme Court of the United States,

American Stevedores, Inc., v. Porello, 66 S.Ct. 1013, to review the decree entered by this court in the case of

Pоrello v. United States and American Stevedores, Inc., 2 Cir., 153 F.2d 605, and it also appearing to the court by an inspection of the transcript of the record upon the appeal in this cause, and as a result of the briefs and argument submitted by the proctors fоr the parties, that a question arises in this cause which was involved in the decision in the last mentioned cause:

Now therefore, this court hereby certifies to the Supreme Court of the United States the following question of law concerning which it desires the instructiоns of the Supreme Court for the proper decision of the appeal herein, under the following facts:

On May 27, 1943, Peter Lauro died as a result of injuries suffered by him on May 26, 1943, while he was employed by Marra Bros., contracting stevedores, on board respоndent‘s vessel, designated as No. 596, which vessel was docked at Pier 4, Staten Island, New York. The death was caused by personal injuries suffered by Lauro when he fell from a hatch cover on the vessel‘s main deck into the hold. At the time of the accident, the vessеl, No. 596, was owned by the United States of America, respondent, and had been allocated by the respondent to the United States Army. It was being loaded with cargo which was owned by the United States, and which consisted of Army and Navy property and Lend-Lease material which was being shipped to North Africa. Marra Bros., the employer of the deceased, was hired by the United States Army to load the vessel.

Thereafter, Lauro‘s widow filed a libel in the United States District Court for the Eastern District of New York against United States of America to recover damages under the Public Vessels Act of 1925, 46 U.S.C.A. § 781, for wrongfully causing Lauro‘s death. In this proceeding the District Court rendered a decree awarding damages to the libelant in the sum of $25,000. From this decree an appeal was taken to this court, and the cause came on for argument on March 12, 1946. On this appeal, the respondent-appellant, contended that the said Public Vessels Act of 1925 provided a remedy against the United States for damage to property only, but not for damаge to a person or damage arising by reason of the death of a human being. The question thus arising is as follows:

Does the word “damages,” as it appears in the following sentence of the Public Vessels Act of 1925, 46 U.S.C.A. § 781:

“A libel in personam in admiralty may be brought against the United States, or a petition impleading the United States, for damages caused by a public vessel of the United States, and for compensation for towage and salvage services, including contract salvage, rendered to a public vessel оf the United States: Provided, That the cause of action arose after the 6th day of April, 1920.”

mean damages to property only, or does it mean, as well, damages under Sections 130 to 134 of the Decedent Estate Law of the State of New York, Consol. Laws, c. 13, recoverable by a personal representative because of the death of a human being? Which ‍‌‌‌‌‌​​​‌​‌​‌​​‌‌​‌‌​​​​​‌‌​‌​‌‌‌‌​‌​​‌‌‌​​​‌‌‌‌‍question, arising from the facts aforesaid, is hereby submitted to the Supreme Court.

LEARNED HAND, CLARK, and FRANK, Circuit Judges, concur.

---

JOINT COUNCIL DINING CAR EMPLOYEES LOCAL 370, HOTEL AND RESTAURANT EMPLOYEES INTERNATIONAL ALLIANCE, et al. v. DELAWARE, L. & W. R. CO.

No. 272, Docket 20185.

Circuit Court of Appeals, Second Circuit.

July 15, 1946.

Hope R. Stevens, of New York City, for plaintiffs-appellаnts.

Harold J. Gilmartin, of New York City (Rowland L. Davis, Jr., of New York City, on the brief), for defendant-appellee.

Before CHASE, CLARK, and FRANK, Circuit Judges.

CLARK, Circuit Judge.

This appeal involves an interesting question as to the effect of an express limitation upon a special statutory remedy where failure to institute suit more promptly is sought to be explained as a consequence of the celebration of “V-J Day” authorized by the President of the United States in connection with the victory in the Pacific. The action here is on an award of the Third Division of the National Railroad Adjustment Board made against the defendant railroad. The award appears as an order of the Division of June 11, 1943—made a part of the complaint as an exhibit thereto—which directed the railroad to make reimbursement to certain dining сar employees for free meals required under the employment contract, the payments to be made “on or before August 16, 1943.” The action was actually commenced by filing of the complaint and service of summons on August 17, 1945. This the District Court held not within the twо-year period allowed by the statute. Accordingly it granted the defendant‘s motion under Federal Rules of Civil Procedure, rule 12 (b), 28 U.S.C.A. following section 723c, to dismiss the plaintiffs’ “petition,” i. e., complaint.

The controlling statutory provisions are found in the Railway Labor Act, § 3(p, q), 45 U.S.C.A. § 153(p, q). Subdivision (p) provides that “if a carrier does not comply with an order of a division of the Adjustment Board within the time limit in such order, the petitioner, or any person for whose benefit such order was made, may file” in the appropriate District Court of the United States a petition claiming relief and sеtting forth the division‘s order. After provisions for precedence in trial, for prima facie effect of the division‘s findings and order as evidence of the facts, for the petitioner‘s nonliability for costs, except on appeal, and for allowanсe to him of a reasonable attorney‘s fee in the event of success, the statute empowers the district court to enter such judgment as may be appropriate to enforce or set aside the order. Subdivision (q) then states: “All actions at law based upon the provisions of this section shall be begun within two years from the time the cause of action accrues under the award of the division of the Adjustment Board, and not after.” Here plaintiffs had alleged that by failure of the carrier “to comply with the order within the time limit set in the order, namely, August 16, 1943, a cause of action accrued to the petitioners on said date“; and the trial court, accepting this date, held that the statute permitted of no exception, and hence that the action was begun one day beyond the ultimate time allowed.

From the affidavits of the parties, filed for and available on the hearing of this motion, F.R. 6(d), 43(e);

Samara v. United States, 2 Cir., 129 F.2d 594, 599, certiorari denied

317 U.S. 686, 63 S.Ct. 258, 87 L.Ed. 549, and other cases cited in Second Preliminary Draft of Proposed Amendments to Rules of Civil Procedure, May, 1945, Rule 12(b), note, pp. 14, 15, the facts concerning the institution of suit appear. Thus the affidavit of plaintiffs’ counsel showed that on August 15, 1945, he was reliably informed, after due inquiry, that the District Court was closed and would remain closed through August 16; and that on August 16, there appeared a notice in the New York Law Journal that the court, including the clerk‘s office, would be closed on Thursday, August 16, 1945, the order being signed “By order of the court” in the name of the clerk. Counsel further asserted, on information and belief, that those two days were legal holidays appоinted by the President of the United States as days of public rejoicing and thanksgiving for the victory resulting from the surrender of the Japanese Imperial Government. He made no claim or showing of any actual attempt on those days to deposit the comрlaint in any office in the courthouse or with any of the several judges of the court, with whom filing is now permitted by the terms of the rules. F.R. 5(e);

Casalduc v. Diaz, 1 Cir., 117 F.2d 915, certiorari denied

Casalduc v. Diaz

Gonzalez, 314 U.S. 639, 62 S.Ct. 74, 86 L.Ed. 512. He relies, however, upon F.R. 6(a), providing for the computation of time under the rules, and specifically that portion of the rule which states that when the last day of “any period of time prescribed or allowed by ‍‌‌‌‌‌​​​‌​‌​‌​​‌‌​‌‌​​​​​‌‌​‌​‌‌‌‌​‌​​‌‌‌​​​‌‌‌‌‍these rules, by order of court, or by any applicable statute” is a Sunday or legal holiday, “the period runs until the end of the next day which is neither a Sunday nor a holiday.”

On the issue which was thus presented, the court bеlow held against the plaintiffs both because the rule was not applicable against the statute and because V-J Day was not a legal holiday, citing the interesting discussion on the latter point in 114 N.Y.L.J. 304, Aug. 16, 1945. Without stopping to consider the latter point we may express agreement with the conclusion reached as to the first point. Rule 6(a) is a rule of procedure relating to acts done or proceedings had after the commencement of action and to any statutes expressly applicаble to such proceedings. It is not intended to modify and change existing statutes of limitation. 1 Moore‘s Federal Practice 408;

Wyker v. Willingham, D.C.N.D.Ala., 55 F.Supp. 105; cf. 28 U.S.C.A. § 723b; F.R. 82;

Sibbach v. Wilson & Co., 312 U.S. 1, 10, 655, 61 S.Ct. 422, 85 L.Ed. 479;

Ferd. Mulhens, Inc., v. Higgins, D.C.S.D.N.Y., 55 F.Supp. 42. Without the aid of that rule, the intent of the statute to cut off the statutory right at once upon the termination of the stаted period seems tolerably clear. Though its mandatory language may not be decisive,

A. J. Phillips Co. v. Grand Trunk Western R. Co., 236 U.S. 662, 667, 35 S.Ct. 444, 59 L.Ed. 774, and

Midstate Horticultural Co. v. Pennsylvania R. Co., 320 U.S. 356, 362, 64 S.Ct. 128, 88 L.Ed. 96, yet its design and mode of operation, as stated in

Elgin, J. & E. R. Co. v. Burley, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886, and

Washington Terminal Co. v. Boswell, 75 App.D.C. 1, 124 F.2d 235, 246, 251, affirmed

319 U.S. 732, 63 S.Ct. 1430, 87 L.Ed. 1694, point that same way. This is a part of the Act setting up a spеcially constituted board to deal with the so-called minor disputes of the industry—grievances in the interpretation or application of employment agreements. As an integral part of this system, Congress gave the employees a special аnd favorable statutory remedy, to be exercised within two years “and not after,” a period of enforced inaction for the employer, during which he cannot obtain even a declaration of his rights under the original agreement.

Washington Terminal Co. v. Boswell, supra. We think, therefore, that a court is not justified in finding any exception to, or extension of, this period.

Order of Railroad Telegraphers v. Railway Exp. Agency, 321 U.S. 342, 348, 64 S.Ct. 582, 88 L.Ed. 788;

Central Vermont R. Co. v. White, 238 U.S. 507, 511, ‍‌‌‌‌‌​​​‌​‌​‌​​‌‌​‌‌​​​​​‌‌​‌​‌‌‌‌​‌​​‌‌‌​​​‌‌‌‌‍35 S.Ct. 865, 59 L.Ed. 1433, Ann.Cas. 1916B, 252.

But even though it was accepted below, and in the original argument before us, that plaintiffs had a right оf action as early as August 16, 1943, this deduction seemed to us of doubtful accuracy. The underlying facts, turning upon the division‘s order, were set forth in the complaint; and these facts, rather than some erroneous theory of law or legal conclusion, even though asserted by plaintiffs themselves, must control the disposition of this action.

Ring v. Spina, 2 Cir., 148 F.2d 647, 653;

Gins v. Mauser Plumbing Supply Co., 2 Cir., 148 F.2d 974, 976. Accordingly we asked counsel to discuss this problem in supplementary memoranda; and with them before us we have concluded that the plaintiffs had no right to judicial relief before August 17, 1943. Under the wording of subdivision (p) of the Act quoted above, no petition in the district court is authorized until after the carrier has failed to comply with a division‘s order within the time limit set therein. Cf.

System Federation No. 8 of Railway Employers’ Department of Ameriсan Federation of Labor v. Missouri-Kansas-Texas R. Co. of Texas, D.C.N.D.Tex., 40 F.Supp. 803. Since ordinarily “the law makes no fractions of a day,”

McGill v. Bank of United States, 12 Wheat. 511, 514, 25 U.S. 511, 514, 6 L.Ed 711, it is clear that the defendant carrier had the entire day of August 16, 1943, in which to comply with the award.

Greulich v. Monnin, 142 Ohio St. 113, 50 N.E.2d 310, 149 A.L.R. 477;

Blydenburgh v. Cotheal, 4 N.Y. 418;

Empire Lighting Fixture Co. v. Practical Lighting Fixture Co., 2 Cir., 20 F.2d 295, 297;

Bank оf Alexandria v. Swann, 9 Pet. 33, 46, 34 U.S. 33, 46, 9 L.Ed. 40. Hence not until the next day had the cause “accrued in a shape to be effectually enforced.”

United States v. Wurts, 303 U.S. 414, ‍‌‌‌‌‌​​​‌​‌​‌​​‌‌​‌‌​​​​​‌‌​‌​‌‌‌‌​‌​​‌‌‌​​​‌‌‌‌‍418, 58 S.Ct. 637, 639, 82 L.Ed. 932. Then by familiar principles of computation, plaintiffs’ time for commencing action did not expire until August 17, 1945.

Sheets v. Sеlden‘s Lessee, 2 Wall. 177, 190, 69 U.S. 177, 190, 17 L.Ed. 822;

Burnet v. Willingham Loan & Trust Co., 282 U.S. 437, 51 S.Ct. 185, 75 L.Ed. 448;

Tismer v. New York Edison Co., 228 N.Y. 156, 126 N.E. 729.

The situation required by the statutory language here may be contrasted with that of such ordinary claims as for breach of contract or for tort where the right of action is complete at the time of the breach of duty or payment of money at a certain date where the money may be claimed at once. Cf.

Rawlings v. Ray, 312 U.S. 96, 61 S.Ct. 473, 85 L.Ed. 605; 1 Wood on Limitation, 4th Ed.1916, 189-196; 34 Am.Jur., Limitation of Actions, §§ 113, 137, 160, 251-253. Presumably here an ordinary law action for breach of contract would lie without reference to the award, and subject to ordinary statutes of limitation.

Moore v. Illinois Cent. R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089. But as pointed out in

Order of Railroad Telegraphers v. Railway Exp. Agency, supra, this is an action of statutory origin on a quite different basis. The statutory limitation, like the remainder of the Act, must be construed in an endeavor to effectuate its purpose and intent. Even periods of limitation, however arbitrarily they must be applied when once defined, yield in their definition to the purposes intended, and to a general desire to preserve rights against unexpected and abruрt termination. Compare in general cases cited in 1 Wood, loc. cit. supra;

Dutcher v. Wright, 94 U.S. 553, 24 L.Ed. 130;

Sands v. Lyon, 18 Conn. 18;

Paul v. Stone, 112 Mass. 27;

President, etc., of Portland Bank v. President, etc., of Maine Bank, 11 Mass. 204;

Judd v. Fulton, 10 Barb., N.Y., 117, 4 How. Prac. 298. Here the statutory purpose seems to us clear not to give a right of action to these plaintiffs until August 17, 1943, and hеnce to continue it until August 17, 1945.¹ The action being therefore timely, the District Court should proceed to hear the case as presented.

Reversed and remanded.

FRANK, Circuit Judge (concurring).

As the latter part of the opinion (concerning the date when the claim arose) disposes ‍‌‌‌‌‌​​​‌​‌​‌​​‌‌​‌‌​​​​​‌‌​‌​‌‌‌‌​‌​​‌‌‌​​​‌‌‌‌‍of the casе, I have not considered nor do I join in the earlier part.

---

SHELL DEVELOPMENT CO. v. UNIVERSAL OIL PRODUCTS CO., and three other cases.

Nos. 9118-9121.

Circuit Court of Appeals, Third Circuit.

Argued May 24, 1946.

Decided Sept. 5, 1946.

Notes

1

Defendant relies upon

Acheson Graphite Co. v. Mellon, D.C.W.D.N.Y., 21 F.2d 562, and

Chesapeake & O. R. Co. v. Walton, 4 Cir., 99 F.2d 270; but these decisions actually sustain delayed actions to enforce reparations orders under the Interstate Commerce Act § 16, as amended, 49 U.S.C.A. § 16, by holding the limitatiоn period to run from the date fixed in the order for payment, rather than from the date of the order itself—a point made quite clear in the Act here in issue. Reliance on such general language as that the time “is computable from the time the money is to be paid, and not from the date of the order,” is hardly justifiable; the expression is quite imprecise in itself and, moreover, deals with differently worded legislation.

Case Details

Case Name: Joint Council Dining Car Employees Local 370 v. Delaware, L. & W. R.

Court Name: Court of Appeals for the Second Circuit

Date Published: Jul 15, 1946

Citation: 157 F.2d 417

Docket Number: 272, Docket 20185

Court Abbreviation: 2d Cir.