Summary
dismissing FELA complaint where it "appear[ed] from the face of the complaint that the plaintiffs cause of action arose more than fourteen years before the suit was commenced," because it is "incumbent upon one suing under the act to allege and prove that his cause of action was brought within the time limited"
Summary of this case from Granfield v. CSX Transportation, Inc.Opinion
No. 8179.
Submitted on briefs December 11, 1942.
Decided December 16, 1942. Rehearing Denied January 8, 1943.
Appeal from the District Court of the United States for the District of New Jersey; Thomas F. Meaney, Judge.
Suit under the Federal Employers' Liability Act by Laurie J. Carpenter against the Erie Railroad Company. From a judgment dismissing the complaint, plaintiff appeals.
Affirmed.
Laurie J. Carpenter, of New York City, pro se, for appellant.
Charles W. Broadhurst, of Jersey City, N.J. (Collins Corbin and Edward A. Markley, all of Jersey City, N.J., on the brief), for appellee.
Before MARIS, JONES, and GOODRICH, Circuit Judges.
In this suit brought by an injured employee against a railroad company under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., it appears from the face of the complaint that the plaintiff's cause of action arose more than fourteen years before the suit was commenced. Since compliance with the two years limitation provided by Section 56 of the act is a condition precedent to recovery (Wabash Ry. Co. v. Bridal, 8 Cir., 1938, 94 F.2d 117) and it is, therefore, incumbent upon one suing under the act to allege and prove that his cause of action was brought within the time limited (American R. Co. of Porto Rico v. Coronas, 1 Cir., 1916, 230 F. 545) the district court had no alternative but to dismiss the complaint. Its judgment is accordingly affirmed.