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FRABUTT v. NEW YORK

May 25, 1949

FRABUTT
v.
NEW YORK, CHICAGO & ST. LOUIS R. CO.



The opinion of the court was delivered by: GOURLEY

Under international law existence of a state of war between two countries or powers is effective to suspend running of statutes of limitations as between citizens of such countries or powers at war, and suspends statutes against alien enemies resident in enemy territory; and rule is applicable whether limitation in particular statute is considered to be limitation of right or liability, or of remedy.

This is a proceeding under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., to recover damages for the death of Berardino Campagna who was an employee of The New York, Chicago & St. Louis Railroad Company, a corporation, the defendant.

 Berardino Campagna met his death on the 31st day of December, 1942. His wife and four children were non-resident aliens, residing in the Kingdom of Italy.

 Pasquale Frabotto was appointed Administrator of said estate on January 4, 1943, and on February 11, 1946, Ernest Frabutt was appoint Administrator d.b.n., or substitute representative of said estate. Ernest Frabutt, Administrator d.b.n. of the Estate of Berardino Campagna, deceased, brought this action in behalf of the widow and four children, as well as in behalf of the estate, on July 12, 1948.

 This matter comes before the Court on motion of defendant for summary judgment filed under the provisions of Rule 56(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., in which it is alleged:

 '1. That the Complaint fails to state a claim against defendant upon which relief can be granted.

 '2. There is no allegation in the pleadings that this action was commenced within three years from the date the cause of action accrued.'

 The defendant contends:

 1. That since the cause of action arose on December 31, 1942, and suit was not filed until July 12, 1948, the proceeding is barred by the three year statute of limitations in the Federal Employers' Liability Act. 45 U.S.C.A. § 56.

 (a) That because a state of war existed between the United States of America and the Kingdom of Italy for the period from December 11, 1941 until September 6, 1947 has no materiality in the consideration of the question which exists.

 (b) That the non-resident aliens could have instituted an action during the war between the two countries but if in the interest of the security of this democracy it was believed that the action should be suspended, such action would have been proper.

 The plaintiff contends:

 1. That under the provisions of Section 2(b) of the Trading with the Enemy Act, 40 Stat. 411, 50 U.S.C.A.Appendix, § 2(b), an enemy is defined to include the government of any nation with which the United States is at war.

 2. That under the provisions of Section 7(b) of the Trading with the Enemy Act, it is provided, inter alia, 'Nothing in this Act shall be deemed to authorize the prosecution of any suit or action at law or in equity in any court within the United States by an enemy or ally of an enemy prior to the end of the war, * * * .'

 3. That under the provision of the Trading with the Enemy Act a non-resident enemy alien may not institute a cause of action in any court of the United States during the period that this country is at war with any other nation.

 4. That the administrator who brings the action on behalf of the widow and children of the deceased is only a nominal party plaintiff; he acts solely in a fiduciary capacity in behalf of the dependents of the deceased and, as a result thereof, the administrator could not have instituted an ...


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