U.S. Court of Appeals for the Second Circuit, 1961

John C. Starnes v. Pennsylvania Railroad Company

U.S. Court of Appeals for the Second Circuit · Decided October 31, 1961 · Clark, Waterman, Moore

295 F.2d 704; 5 Fed. R. Serv. 2d 422; 1961 U.S. App. LEXIS 3314 (Federal Reporter, Second Series)

Counsel

Raymond Val Wayne, Jr., New York Oity (Bromsen & Gammerman, New York City, on the brief), for plaintiff-appellant., David J. Mountan, Jr., of Conboy, Hewitt, O’Brien & Boardman, New York City (James S. Rowen, of Conboy, Hewitt, O’Brien & Boardman, New York City, on the brief), for defendant-appellee.

Cases that cite this one

5 later published cases cite this decision.

Susie Ann Graham v. The Pennsylvania Railroad and the Washington Terminal Company (D.C. Cir. 1965)
Al-Jundi v. Estate of Rockefeller (District Court, W.D. New York 1990)
National Equipment Rental, Ltd. v. Whitecraft Unlimited, Inc. (District Court, E.D. New York 1977)
Eastern Credit Association, Inc. v. Braxton's Estate (D.C. 1965)
Turnbaugh v. Pennsylvania Railroad (District Court, E.D. Pennsylvania 1963)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion

PER CURIAM.

In a reasoned opinion, D.C.E.D.N.Y., 26 F.R.D. 625, Judge Mishler held that this FELA action must fail, since the plaintiff employee died after bringing the action and his widow as administratrix failed to seek substitution as plaintiff within the two-year period required by Fed.R.Civ.P. 25(a). We sustained this rule as valid in Iovino v. Waterson, 2 Cir., 274 F.2d 41, 79 A.L.R.2d 519, certiorari denied Carlin, Adm’x v. Iovino, 362 U.S. 949, 80 S.Ct. 860, 4 L. Ed.2d 867; and although there and in Bush v. Remington Rand, Inc., 2 Cir., 213 F.2d 456, certiorari denied Remington Rand, Inc. v. Bush, 348 U.S. 861, 75 S.Ct. 85, 99 L.Ed. 679, we held that a defendant by affirmative action might estop himself from relying on the defense, there is no basis here where defendant did nothing for such a claim. Consequently we are constrained to agree with Judge Mishler’s disposition of the case. We realize that the rule is a harsh one and that several attempts have been made to effect its amelioration; indeed it is currently under study by the present Advisory Committee on Rules of Civil Procedure. But while it stands we must enforce it.

Affirmed.

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