Petitioners Brief — Still v. Norfolk & Western Railway Co.

Supreme Court brief1961

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OCTOBER TERM. 1.01

No. 1S

BRIEF FOR PETITIONER

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INDEX

SUBJECT INDEX

Brier For Petitioner:

RI NN oa neceescanccmemncaptorntrioiortanaeabens

Jurisdiction ......... S eestac iadiocap acelcuomhncies ot aba aaa eas om

OE MII eee a epee ee aes

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Argument:

I. The trial court disregarded the evidence in

directing a verdict for respondent —..............

A. Whether petitioner misrepresented as to

material facts with knowledge of their fal-

sity and with intent to deceive were ques-

UNS Be ee Se hace

B. It was for theajury to decide whether peti-

tioner’s employment was because of respon-

dent’s reliance on his representations ........

(1) Petitioner’s employment in 1958 was

not in reliance on his 1951 application

(2) Respondent knew or should have

known of petitioner’s condition ........ ...

(3) Respondent did not rely on petitioner’s

representations when it hired him in

NOL te cores RR ie each SGC Lake MARIA

I]. The trial court erroneously interpreted the

law in directing a verdict for respondent ........

Ne eA re Cees. 2 ead. Bin B82

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ii INDEX

CITATIONS

CASES:

Page

Andrus v. St. Louis Smelting d& Refining Co..

130 U.S. 643 24+

Arnold v. Panhandle y; A Ry., 353 U S. 360 | 13

Badey v. Central Vt. Ry., 319 EP Se | | Seti es 9,13

Baker v. Texas d Pac. Ry., 399 U.S. 227 ............ 18, 33

Blantow v. Northern Pac. Pag 215 Minn. 442,

10 N.W.9d 382 (1943) ooo cc cccecesesseee 29, 39, 40, 41

Boshaw v. J. J. Newberry Co., 259 Mich. 333,

Oe Fak a EE etre eae eine oe aeetccmnaees 35, 38

Butler vo. Whiteman, 356 U.S. 271 ..... rebel scene ay 13

Carter v. Peoriad P.U. Ry., 275 Ul. App. 298

yee RRS TP aks aL Sa ieee pei feos Panes. habs ee 29, 39, 40

Casso v. Pennsylvania RR. 219 F.2d 303 (3rd

er I ae ee re "...24, 29, 39, 40, 41

Chiodo v. Whitehead d& Kales Co., 327 Mich. 499, :

> Dh eB a.) Uaioe time anmenyee 26

Clark v. Unton Pac. R.R., 70 Ida. 70, 211 P. 2c

UME ties acee 4D, 24, 39, 41

Dathoff Const. Co. v. Block, 157 Fed. 227 (8th

Os ih oer ie am aaecineeeiesees suas 25

Davis v. Virginian R.R. Co., 7) fae «ea eanhe te 13

Dawson v. Texas d& Pac. Ry. Co., 123 Tex. 191,

70 S.W.2ea 392 (1954), cert. rulers 293 U.S

aan apical eu oti ciaeaaehaionaensick 39, 49

Deen v. Gulf, C. € §. F. Ry., 353 US . 925 Scien 13

Dice v. Akron, C. & ¥. RR, 342 U.S. 359 east 13

Edwards v. United States, 140 F.2d 526 (6th Cir.

| ARR a hat eats BE li de 2 ahs nce 0 OE Dae 7 OS SE ; ee

Ellis v. Union Pac. R.R., 329 U.S. 649 oo... 13

Eresafe v. New York, N. H. & H. R.R., 250 F.2d

UG TN a aa arteteeacttce ys crceaccnncaavnsns 39, 40

Ettelson v. Metropolitan Life Ins. Co., 164 F. 2d

ee Ca ee ee ee 21

Farnsworth v. Duffner, 142 US. 43 0... meee oras 23

Farrar v. Churchill, 135 U.S. 609 | yoo... 13- 14, 24

Ferguson v. Moore-McCormack Lines, 352 U.S.

ae eet ee er ee eee ee 13

Ferguson v. St. Louts-S. F. Ry., 356 U.S. 41 ........ 13

INDEX lil

Page

Fort Worth @ D.C. Ry. v. Griffith, 27 S.W.2d

ak CRORE, Civ: Aw. TODD): ooo nnccoviciccs scot, 37, 39, 40, 41

Ganga v. Ford Motor Co., 250 Mich. 247, 230

Bc MO NMED ice nsshnistens descsncciienic .....34, 38, 39, 40, 41

Gibson v. Thompson, PAS 13

Gunning v. Cooley, 282- U.S. 90 occ cece tees 12

IToneycutt v. Wabash Ry., 355 U.S. 424 0000000... 13

Hull v. Philadelphia d R. Ry., 252 U.S. 478 ........ 32, 33

Inman v. Baltimore & O. R.R., 361 U.S. 138 ........ 13

Kansas City M. & O. Ry. v. Estes, 203 S.W. 1155

(Tex. Civ. App. 1918), aff'd, 228 S.W. 1087

LS AREER ie aaa tun Cink Betas sade Ne laeies 26

Kernan v. American Dredging Co., 355 U.S. 426 32

Laughter v. Powell, 219 N.C. 689, 14 S.E.2d 826,

136 A.L.R. 1116 (1941), cert. denied, 314 U.S.

iy i AS ALLE Bia CREE ERO UR ERO REF Bg MEETS aed 33, 38, 40

Lavender v. Kurn, 327 U.S. 643.000.0000... 13

Lehigh Zinc & lron Co. v. Bamford, 150 U.S. 665 22

Long v. Big Horn Construction Co., 75 Wyo. 276,

Bt i a. | emer ances 38, 40, 41, 42

Matthews v. Atchison, T. d& S. F. Ry., 54 Cal.

App.2d 549, 129 P.2d 435 (Super. Ct. 1942) .... 15, 39,

40, 41, 42

McBride v. Toledo Terminal R.R., 354 U.S. 517 13.

Michalic v. Cleveland Tankers, Inc., 364 U.S. 325 13

Minneapolis, St. P. d S. Ste. M. R.R. v. Borum,

OE oer ee 29, 36, 37, 41

Minneapolis, St. P. & S. Ste. M. Ry. v. Rock,

ok TR Sicepenetcmine hae unrt va One eam alent 10, 11, 25,

29, 34, 35, 36, 37, 38, 41

Moore v. Terminal R.R. Ass'n, 358 U.S. 31 ........ 13

Moulor v. American Life Ins. Co., 111 U.S. 335 21

Newkirk v. Los Angeles Junction Ry., 21 Cal.2d

wey eae ee Gee (IEE oo ce 38-39, 40

Norfolk @ W. Ry. Co. v. McKenzie, 116 F.2d 632

Ce i eee 15

Pay yne v. Daugherty, 283 Fed. 353 (8th Cir.

WS ote er ess en eee 11, 33, 34, 36

Phillips v. Southern He Co., 14 Cal. App.2d

454, 58 P.2d 688 (App. Div. 1986) 000000... 39, 40, 41

INDEX

Plick v. Toye Bros. Auto & Tarwab Co. 13 La.

App. 025, 127 Se. oY (130) _ 36, 37, 39, 40

Powers v. Michigan Cent. RR. 268 Ul. App. 493

(19) ...:... 3,

Prudential Ins. Co. v. Gourley, 267 F.2d 156 (oth

Cit. Tee) ........2..

Qualls v. Atchison, T. & S. F. Ry. W2 Cal. App.

7, 296 P. 645 (App. Div. 1931) 36, 39,

age

“41

Ringhiser v. Chesapeake & O. Ry., 354 U.S. 901 1

Ritter v. Mutual Life Ins. Co., 169 U.S. 139 37

Robinson v. Baltimore & O- R.R., 237 US. 84 |. 33

Rogers v. Missour? Pac. R.R.. 352 UoS. 500 |. 13

Sentilles v. Inter-Caribbean Corp., 361 U.S. 107 13

Shappirio v. Goldberg, 192 U.S. 232 . 24, 25

Shelton v. United States, 169 F.2d 665 (DC.

Cir. 1948), cert. denied, 335 U.S. 834 15

Slaughter’s Adm’r v. Gerson, 80 U.S. (13 Wall.)

FER RSW AIS SRP. J sta wa RA 24

Sonnentheil v. Moerlei im oe Ce., 173 US.

Southern Dev. Co aS . Sil a, 125 US. 247 14, 22, 24

- Southern Pac. Co. v. Libbey, 199 F.2d 341 (9th

PY sce cs rele nSep ca 4]

Stinson v. Atiantic Coast Line R. R., 395 U.S. 62 13

Talarowski v. Pennsylvania R.R., 135 F. Supp.

Oe te ee ee ne . 39, 41

Tennant v. Peorta d PLU. Ry.. 321 US. 29 | 13

Teras d N. O. R.R. vv. Webster, 123 Tex. 197, 70

S.W.2d 394 (1934), cert. denied, 293 U.S. 580 37.

39, 40

Thomson v. Tezas & Pac. Ry., 353 U.S. 926 13

United States v. ison 136 F.2d 823 (9th Cir.

1943) . ar 22

‘United States Bank v. . Owens, 27 US. (2 Pet.)

| __att aeRER erate 37

Wedb v. Illinois Cent. R.R., 352 US. o12 13

White v. Thompson, i81 Kan. 485, 312 P.2d 612

\ ; eee _ 89, 40

Wiukerson v. Mct ‘arthy, 336 U.S. 53 12

INDEX Vv

Page

STATUTES:

28 U.S.C. 6925713) (1959) 2

45 U.S.C. 551 (1959) (Federal Employe rs* Lia-

bility Act) — NA CEL?

45 U.S.C. (55 (1959) ean 3

32 Stat. 232 | Sy oe a 32.

MIscELLANEOUS:

Annot., Misrepresentations in Seeking Employ-

ment, 116 A.L.R. 1116 (1942) | SoA eed ROR 49

Copp, How Best to Check Up Applications for

Tram and Switching Service—What Safe-

guards Should Be Employed, Thirty-eighth

Annual Meeting of the Association of Rail-

way Claim Agents, 81, 82 (1927) |. J 30

DePareq, A Decade of Progress Under the Fed-

eral Employers’ Liability Act, 18 Law and

Contemp. Prob. 257 at 260 (1953) 13

Griffith, The Vindication of a National Public

Policy Under the Federal Employers’ Liability

Act, 18 Law and Contemp. Prob. 160 (1953) 32

1 Harper and James, ‘Torts (1956)

y7.12 . 24

$7.13 25

Merrill, Misrepre sentation to Secure Employ.

ment, 14 Minn. L. Rev. 646 (1930) _ pi 35

43 Harv. i. meow. 269 (2900) ............................... . &

28 Mieh. L.. Bev. 357 (1990) 35

14 Minn. L. Rev. 98 (1930) | 35

— 69 Harv. L. Rev. 1441, ‘1447 (1956) . 13

3 Pomeroy, Equity Jurisprudence, (899 (5th

ed. 1941) |. as 34

Prosser, Torts (2d ed. 1955)

ee NES be 14

‘sg f<. 4%

Rates of Pay aad Re -gulations, Norfolk & ‘West-

ern Ry. Co., Revised Dee. 27, 1943 0... 29

2 Restatement of Contracts $475 34

vi INDEX

Tate, The Phu sical Fitness and Judicious Selec-

tion of New Employees, 32 The Bulletin, The

Association of Railway Claim Agents, 291-299

(Jan. 1948) So aT ORY pee tn ON be ede

5 Williston, Contracts (rev. a 1937)

BO ER aN RE A CORA RUE BUI Ot ed SNOT Or PRN at

i Giles Roane 2 Sen ea EE aA em CPI Sree

X-rays of the Spine in Pre-Employment and

Periodic Examinations, Proceedings the

Thirty-seventh Annual Meeting of the Med-

ical and Surgical Section, Association of

American Railroads, 45-54, 61, 62 (1957) ........

33, 34

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1961 ~

No. 48

Cari STILL,

Petitioner,

Norro_k & Western Railway Compaxy,

Respondent.

ON WRIT OF CERTIORARI TT’ THE SUPREME COURT

OF APPEALS OF THE STATZ OF WEST VIRGINIA

BRIEF FOR PETITIONER

Opinions Below

The judgment of the Circuit Court of Mercer County,

West Virginia is unreported. It is printed at pages 19 and

465 of the Transcript of Record. A petition for Writ of

Error and Supersedeas was filed in the Supreme Court of

Appeals of West Virginia but denied by that court without

opinion. The Clerk's memorandum of the court's judgment

is printed at page 510 of the Transcript of Record.

Jurisdiction

The judgment of the Supreme Court of Appeals of West

Virginia was entered Septeinber 12, 1960 (R. 510). By

Order dated Devetmber 1, 1960, the time for filing petition

for writ of certiorar) was extended by the Chief Justice

to and including February 10, 1961 (R. 511). The Petition

for a Writ of Certiorari was filed February 10, 1961, and

was granted April 17, 1961 (R. 512). Petitioner's Motiop

for Leave to Proceed in Forma Pauperis was granted June

19, 1961 (R. 512).

The jurisdiction of this Court is inveked under 28 U.S.C.

$1257(3) (1959).

Statutes Involved

45 U.S.C2 951 (1959) (Federal Employers’ Liability Aet) :

“Liability of common carners by railroad, in inter-

state or forengn commerce, for injuries to employees

from negligence; definition of employees.

“Every common carrier by railroad while engaging

in commerce between any of the several States or Ter-

riiories, or between any of the States.and Territogies,

or between the District of Columbia and any of the

States or Territories, or between the District of

Columbia or any of the States or Territories and any

foreign nation or nations, shall be liable in damages

to any person suffering injury while he is employed

by such carrier in such commerce, or, in case of the

death of such employee, to his or her personal repre-

sentative, for the benefit of the surviving widew or

husband and children of such employee; and, if none,

then of such employee's parents; and, if none, then of

the next of kin dependent upon such employee, for

such injury or death resulting in whole or in part

from the negligence of any of the officers, agents, or

employees of such carrier, or by reason of any defect

or insufficiency, due to its negligence, in its cars, en-

gines, appliances, machinery, track, roadbed, works,

boats, wharves, or other equipment.

“Any employee of a carrier, any part of whose duties

as such employee shall be the furtherance of interstate

or foreign commerce; or shall, in any way directly or

closely and substantially, affect such commerce as

above set forth shall, for the purposes of this chapter,

be considered as being emploved by such carrier in

such commerce and shall be considered as entitled to

the benefits of this chapter.”

45 U.S.C. $55 (1959) :

“Contract, rule, regulation, or device exempting from

liability ; set off.

“Any contract, rule, regulation, or device whatso-

ever, the purpose or intent of which shall be to enable

any common carrier to exempt itself from any liability

created by this chapter, shall to that extent be void:

Provided, That in any action brought ajainst any such

common carrier under or by virtue of ary of the pro-

visions of this chapter, such common carrier may set

off therein any sum it has contributed or paid to any

insurance, relief benefit, or indemnity that may have

been paid to the injured employee or the person en-

titled thereto on account of the injury or death for

which said action was brought.”

Questions Presented

1. In a Federal Employers’ Liability Act case, did the

trial court err in directing a verdict for the respondent

railroad on the ground that the petitioner employee, be-

cause of alleged misrepresentations relating to his health

and physical condition, made wh.-n he applied for employ-

ment, failed to achieve the status of an employee where:

(a) The evidence corroborated petitioner’s testimony

that he had not intended to mislead or misrepresent any-

thing to respondent, and the evidence supported the con-

clusion that he had not misl¢a or misrepresented.

(b) Petitioner worked satisfactorily for respondent for

more than 5 years prior to the accident;

than 6 years prior to the accident, during which period

respondent had fired and rehired petitioner after more than

n vear's absence;

(d) The principal alleged misrepresentation related to a

pre-existing physical condition which was plainly visible

when petitioner was examined and approved by respon-

dent’s examining physician who by his own admission was

overworked at the time of the examination;

(e) Except for such physical. examination, respondent

made no investigation of petitioner's application, even

though the most cursery investigation would have disclosed

the condition now claimed to have been concealed; and

(f) Considerations of public policy militate in favor of

recovery by the petitioner and against absolving respon-

dent of responsibility for its negligence.

2. Assuming an employee obtains a job with a railroad

by fraudulently concealing an abnormality in his back, but

is physically examined by the carrier and does nothing to

limit or interfere with such examination and investigation

as the carrier chooses to make, performs his duties satis-

factorily for a number of years, and is wnereafter injured

as the result of the carrier's negligence, is he an employee

entitled to the protection of the FELA?

Statement

This is an action for personal injuries brought under the

Federal Employers’ Liability Act by a brakeman injured

in a collision between a train and a railroad car on which

he was riding (R. 1). At the conclusion of the evidence the

trial court directed a verdict for respondent, on the ground

that petitioner's employment contract was void because

procured by fraud (R. 473).

Petitioner was permanently injured on January 23, 1958,

in an accident which occurred shortly after midnight, in

respondent's yard at Bluefield, West Virginia, in the course

of a switching operation. Cars were being detached from

a train of approximately 69 cars, which was being pushed

on a “lead track” in a westerly direction by an engine at

the east end (K. 84, 134, 148, 346). As the train moved,

cars were separated or “cut” from it after it passed the

“hump”, the highest point in the yard, from which the

tracks sloped to the east and west (R. 84, 96, 116, 147);

after being uncoupled, the “cut” descended by gravity to

its designated side track (R. 149). The cut cars were

supposed to roll away from the train (R. 355, 362).

At the time of the accident,: petitioner was stafdiny on

a small, exposed platform at the rear of a 70-ton coal

hopper which had been “cut”; unfit for further service, it

was being switched to a shop track for ultimate junking

(R. 67, 106, 132, 153, 161, 354, 365). Petitioner could brake

but not accelerate (R. 159).

One group of cars had been cut from the train just ahead

of the car petitioner was riding (R. 157, 359). Soon after

his car rolled free, but unexpectedly and contrary to the

established procedure, it was overtaken and violently re-

coupled by the train (R. 86, 99, 117, 131, 139, 355, 360). The

recoupling, followed by a sudden halt, caused a whiplike,

jerking reaction which threw petitioner heavily against his

car; almost over into it; his side, from waist to knee,

struck a steel rim (R. 85, 87, 92, 98, 117, 132, 163, 271, 273,

366).

The switching operation was directed by a brakeman

acting at the time as an extra conductor (R. 354). He

called the designated side track to the brakeman as his

ear or cars rolled by (R. 1), 354), and controlled the

movement of the train by throwing signal lights on several

boards located throughout the vard (R. 85, 96, 115, 149).

The conductor, whose duty was to prevent recoupling

(R. 92, 98, 159, 360), realized a collision was impending but

did not warn petitioner, though he was able to do so (R. 119,

355-358, 363-368). He testified that he delayed signalling

the engineer to stop, since every stop slowed up the switch-

ing operation (R. 355, 364). There was evidence too that

the engineer was known to be inefficient and that he failed

to abide the signal thrown by the conductor (R. 87, 97,

99, 110-112, 122, 258, 162, 197, 268, 350, 370, 453).

Petitioner suffered severe and permanent injury as a

result of the accident.

His physical fitness prior to the accident is well demon-

\§trated by his employment record. A Negro, aged 31-at

ithe time of the accident, petitioner was a manual laborer.

He did not complete high school (R. 200, 479). He had

his first job, at 18, in the coal mines (R. 202). His next

job was making bomb shells (R. 201), and he apparently

worked a short time for respondent in 1943 (R. 353). When

he was 19 years old, on July 14, 1945, he entered the Army

(R. 201). During basic training as a soldier he experienced

no difficulty performing his duties (R. 204, 206), although

later in the Service he had physical difficulties, as the re-

sult of which he was given an Honorable Discharge on

January 31, 1946, pursugnt to a Certificate of Disability

(R. 201, 208; Def. Ex. 3; R. 213, 477; Def. Ex. 12; R. 304,

493). After working thereafter, for about two years, as

a janitor (R. 142, 216), he again worked briefly for re-

spondent (R. 353) and then returned to working in the

mines, “where the work is about three times as hard as

the railroad,” dusting the cut, working as a brakeman be-

hind a loading machine, loading coal, laying track and

handling timbers weighing 40 to 50 pounds (R. 142-144,

217). On July 24, 1951, he was employed by respondent

as a brakeman; in October 1956 he was dismissed for de-

serting his crew (R. 144, 293) and in November 1957 he was

reinstated (R. 144, 145, 294). Petitioner experienced no

trouble doing the heavy physical labor which these jobs

required (R. 144-146, 165, 220).

From July 1951 to October 1956 and from November 1957

to January 1958, the periods petitioner worked for respon-

dent as a brakeman, he performed his duties in a satis-

factory manner and was considered a good and competent

brakeman (R. 89, 100, 109, 122, 199, 397). His physical

condition was considered good by his fellow employees and

also by his superiors (R. £9, 110, 122, 199, 397) ; he was one

of the railroad’s strongest and most agile brakemen (R. 110,

194, 196).

The accident brought about a severe and permanent in-

jury to petitioner's spinal column, a marked slipping or

dislocation of his vertebra, with injury to the interver-

tebral dise (R. 54, 55, 60, 70, 73, 81, 324, 435, 456) and

painful nerve damage (R. 56, 73, 76). Petitioner had a

back deformity, known as spondylolistheais,' which was of

long standing and probably was congenital, and there was

some disagreement as to whether the effect of the accident

was merely to aggravate a quiescent condition without

_affecting the bone structure or to cause a complete dis-

location of the bones involved (R. 60, 79, 80, 81, 244, 324,

434). Butin any event it was clear that petitioner became

totally disabled from performing physical labor, the only

type of work he knew (R. 57-60, 70, 77, 183, 193, 323, 458;

but see 243, 325). The doctors disagreed as to whether an

operation might improve his condition (R. 58, 59, 74, 78,

81, 321, 324). :

' The pain caused petitioner by the accident was vividly

described by a number of witnesses. According to the doc-

tors the trauma affected his spinal nervous system. As a.

result, commencing immediately after the accident, he

suffered from severe pain and limitation of motion (R. 57,

98, 101, 104, 119-121, 132, 135, 165-167, 172, 181, 191). He

continued in pain at the time of the trial; when he was still

required to wear a heavy brace (R. 73, 76, 77, 190, 196, 289)

and was unable to remain still for any extended time

(R. 143, 155, 194).

Respondent took the position at the trial that since peti-

tioner worked, “in a sense, of course, he was an employee”

(R. 46), but because of his fraud no valid agreement ex-

? Spondylolisthesis was defined at the trial as a slipping forward

of one vertebra on another. In this case the evidence was that peti-

tioner’s fifth lumbar vertebra, the one just above the pelvis, was

slipped forward on his sacrum (R. 55, 56, 62, 70, 71, 235, 239, 442).

isted and he could not maintain an action under the FELA’

(R. 29, 35). At the conclusion of the evidence respondent

moved for a directed verdict (R. 462).

Despite petitioner's categorical denial of intent to mia-

lead or misrepresent (R, 460) and evidence corroborating

his denial, the trial co pted respondent's theory and

directed a verdict for resporident (R. 19-22, 465-474).

Summary of Argument

Petitioner is a manual] laborer. Hired by respondent in

1951 as a brakeman, fired in 1956 for deserting his crew,

and rehired in 1957, he was injured in 1958 in an accident

caused without negligence on his part. During the periods

of his employment his services were satisfactory. As a

result of the accident he suffered a permanent disability

of his lower back, rendering him unable to perform manual

labor.

Respondent claimed petitioner was not an employee be-

cause he falsely answered a number of questions when he

applied for work in 1951. It claimed essentially that he

concealed the fact that he had a congenital defect at the

point of his back where he was disabled. The trial court

directed a verdict for respondent on this issue. In so doing

it deprived petitioner of a goodly portion of the relief

which Congress afforded railroad workers under the FELA.

Bailey v. Central Vt. Ry., 319 U.S. 350, 354.

* This defense was injected for the first time on October 5, 1959,

the day the trial commenced, notwithstanding an oral stipulation

between the parties on August 10, 1959, and a written stipulation

filed on September 10, 1959, that petitioner was an employee (R. 40,

22, 41, 18), and the fact that counsel for respondent had some of

the information upon which the plea was based when he made the

August 10, 1959, stipulation at pre-trial and had additional infor-

mation at least a week before the si a 422, 456, 463).

There was evidence that petitioner had trouble with his

back prior to 1951, but the proof was persuasive that he

did not understand its nature, and thought he had recovered

from it. As to each question which respondent claimed

petitioner answered fraudulently, there was an explana-

tion, corroborated by other testimony and evidence, rea-

-gonably eliminating any inference that he answered falsely

or with intent to deceive.

Moreover, the evidence strongly suggested, indeed estab-

lished, that petitioner’s employment in January 1958, the

time of the accident, was not in reliance on his 1951 ap-

plication. He had been fired and rehired in the interim,

without reliance on his 1951 statements. Further the con-

clusion was inescapable that when he was employed in 1951,

there was no reliance on the representations respondent

claims to have been false. Respondent, desy ite petitioner’s

representations, insisted on having him thoroughly ex-

amined by its own physician. The doctor, however, failed

to discover the obvious abnormality in petitioner’s spine,

which was visible without X-ray.

Further, though the most cursory investigation by re-

spoadent, such as examination of his certificate of dis-

charge from the United States Army or a telephone call

to the local VA doctor whom petitioner gave as reference,

would have disclosed his condition, no investigation what-

ever was made. By this inexcusable disregard of its un-

questioned duty to exercise care in hiring fit people, Min-

neapolis, St. P. d S. Ste. M. Ry. v. Rock, 279 U.S. 410,

respondent had imputed to it the knowledge which it would

have acquired by such inquiry and therefore cannot be said

to have relied on petitioner’s representations.

Petitioner therefore urges that the trial court erred by

taking these issues from the jury. But even assuming the

evidence had been such as to justify a finding that peti-

tioner obtained employment by fraud, he nevertheless was

an employee entitled to the protection of the FELA. That

he was in fact an employee is not disputed. If he per-

petrated a fraud on respondent, it was at most as induce-

ment to the contract, which may have entitled respondent

to rescind, but which did not affect his status at the time

of the accident. Payne v. Daugherty, 283 Fed. 353 (8th Cir.

1922).

To deprive petitioner of the benefits of the FELA, there-

fore, there must be found to exist some consideration of

overriding importance, some factor which reasonably might

be said to overcome the purpose of the FELA to protect

those who work in a hazardous, public service industry.

No such factor appears in this case.

Relying on Minneapolis v. Rock, supra, respondent argues

petitioner’s fraud was such a factor. But that case in-

volved a physically unfit employee who fraudulently ar-

ranged for someone else to take the required physical

examination which he had failed. By avoiding the exam-

ination he prevented the railroad from physically examin-

ing him and thus from exercising care in hiring fit em-

ployees, which it was duty bound to do, and he thereby

violated the public policy of the FELA.

Petitioner’s fraud, if conceded (and it is not conceded),

was not of this nature. It is undisputed that he submitted

himself to pliysical examination and to such investigation

as respondent desired to make. Moreover, he worked sat-

isfactorily for more than 5 years prior to the accident and

his condition, allegedly concealed, in no way contributed

to the accident. It cannot be said any consideration of

public policy would justify a limitation of the os

to which he was entitled as an employee.

On the contrary, to deprive petitioner of his rights under

the FELA would run contrary to the purpose of the Act

to promote safety by stimulating carriers to exercise care

in hiring fit workers. Minneapolis v. Rock, supra. In this

case respondent's negligence caused petitioner's injury. To

absolve respondent of responsibility when it had full op-

portunity to examine and investigate petitioner and to learn

of the condition of which it now complains would give re-

spondent a windfall it does not deserve and would in fact

encourage lax hiring procedures in the industry.

For these reasons petitioner maintains this case should

be reversed and remanded for a new trial, with instruc-

tions to the trial court to entertain favorably a motion

by petitioner to strike the defense of fraud heretofore in-

terposed by respondent.

ARGUMENT

The Trial Court Disregarded the Evidence in Directing

a Verdict for Respondent.

A. Whether petitioner misrepresented as to material

facts with knowledge of their falsity and with intent

to deceive were questions for the jury.

Petitioner was deprived of his right to trial by jury.

guaranteed by the FELA, when the trial court purported

to resolve factual issues against him by directing a verdict

for respondent. In its consideration of the Motion for Di-

rected Verdict, the trial court was bound, after considering

the evidence in the light most favorable to petitioner, Gun-

ning v. Cooley, 281 U.S. 90, to determine whether or not,

with reason, a conclusion favorable to petitioner might be

drawn on the factual issues. Only if reasonable men could

not reach differing conclusions on an issue may it be taken

from the jury.’ Moreover, the court’s action is to be re

viewed in light of the admonition that the right to trial by

jury “is part and parcel of the remedy afforded railroad

workers under the Employers Liability Act,” and to de-

prive “these workers of the benefit of a jury trial in close

or doubtful cases is to take away a goodly portion of the

relief which Congress has afforded them.” Bailey v. Central

Vt. Ry., 319 U.S. 350, 354.

These principles apply not only to questions of negli-

gence and causation but to al! factual issues, Tennant v.

Peoria d P. U. Ry., 321 U.S. 29, 35, including fraud in

procurement of a release from an employee, Dice v. Akron,

C. @ Y¥. R.R., 342 U.S. 359, 363, and whether an injured

worker was an employee of a railroad or of a company

which contracted to do certain work on its roadbed, Baker

v. Texas d Pac. Ry., 359 U.S. 227, 228, and including too,

therefore, the issues involved in respondent’s claim of fraud.

Frand is never presumed, and where it is alleged the

facts sustaining it must be clearly made out. “Farrar vy.

* Michalic v. Cleveland Tankers, Inc., 3640.8. 325; Davis v. Vir-

gimtian R.R., 361 U.S. 354, 356; Sentilles v. Inter-Caribbean Corp.,

361 US. 107, 110; Inman v. Baltimore & O. R.R., 361 U.S. 138, 140;

Baker v. Tezas & Pac. Ry., 359 U.S. 227, 228; ‘Moore v. Terminal

BB. Ass’n, 358 U.S. 31; Butier v. Whiteman, 356 U.S. 271; Fer-

guson v. St. Louis-&. F. Ry., 356 U.S. 41; Honeycutt v. Wabash Ry.,

355 U.S. 424; Stinson v. Atlantic Coast Line B.R., 355 U.8. 62

Gibson v. Thompson, 355 US. 18; McBride v. Toledo Terminal RR

354 U.S. 517; Ringhiser v. Chesapeake & O. Ry., 354 U.8. 901; Deen

v. Gulf, C.& 8. F. Ry., 353 U.S. 925; Thomson v. Texas & Pac. Ry.,

353 U.S. 926; Arnold v. Panhandle & 8. F. Ry., 353 U.S. 360; Webb

v. TUsnois Cent. R.R., 352 U.S. 512, 516; Ferguson v. j voonat a

mack Lines, 352 US. 521, 523; Rogers v. Missouri Pac. R.R., 352

U.S. 500, 506; Wilkerson v. McCarthy, 336 U.8. 53; Ellis v. Union

Pac. U.S. 649; Lavender v. Kurn, 327 US. 645; Tennant

v. Peoria & P.U. Ry., $21 US. 29; DeParcg, A Decade of Progress

Under the Federal Employers’ Liability Act, 18 Law and Contemp.

Prob. 257, 260 (1953) ; Note, 69 Harv. L. L. Rev. 1441, 1447 (1956).

1é

Churchill, 135 U.S. 609, 615. To support its claim respon-

dent had the burden of showing by clear and decisive proof

that petitioner had made a false representation with intent

to deceive; that the representation was not actually be-

lieved by petitioner, on reasonable grounds, to be true; that

it was acted on by respondent to his damage, and that in so

acting respondent was ignorant of its falsity, and reason-

ably believed it to be true. Southern Dev. Co. v. Silva, 125

U.S. 247; Prosser, Torts §86 at 523 and 527 (2d ed. 1955).

Each of these elements involved factual determinations,

peculiarly within the province of the jury. Sonnenthei v.

Moerlein Brewing Co., 172 U.S. 401, 410.

Petitioner categorically denied any intention to mislead

or misrepresent (R. 460) and, as we will demonstrate, his

testimony and other evidence at the trial substantially

corroborated his denial.

The record established without contradiction, and respon-

dent conceded, that petitioner was in fact an employee. He

worked as a brakeman for respondent from 1957 to 1958,

having previously worked in the same capacity from 1951

to 1956. He performed all the duties of such an employee,

ran all the risks, received all the benefits, and was in every

way indistinguishable from other employees.

Yet the trial court ruled that he was not an employeé

(R. 473). This anomaly it justified by finding that peti-

tioner knew he had spondylolisthesis because he had been

hospitalized in the Army and in January, 1946, was dis-

charged on account of it, and had applied for VA benefits.

By reasoning which it did not explain the court then stated

it thought petitioner had a duty to reveal the condition,

and if it had been known respondent would not have hired

him. Although it did not so state, the court apparently

rejected all petitioner's testimony because it thought peti-

tioner “lied completely all through this case” * (R. 472).

Respondent's essential ciaim is that petitioner misrepre-

sented his back condition. It points to a number of ques-

tions which it says were falsely answered by petitioner in

order to conceal this condition (R. 29-35). Some of these

questions were in petitioner’s application for employment*

(Def. Ex. 4; R. 225, 480). Others were claimed to have

been orally answered by him on questioning by respon-

‘If, as its language suggests, the court rejected all petitioner's

testimony because it thought he lied, this was a flagrant disregard

of the requirement that notwithstanding contradictions or incon-

sistencies in the testimony of a witness, its weight and credibility

are for the jury. Shelton v. United States, 169 F.2d 665, 667 (D.C.

Cir. 1948), cert. denied, 335 U.S. 834; Norfolk & W. Ry. v. Mc-

Kensie, 116 F.2d 632, 635 (6th Cir. 1941) ; Matthews v. Atchison,

T. @ 8. F. Ry., 54 Cal. App.2d 549, 555, 129 P.2d 435, 440 (Super.

Ct. 1942): Clark v. Unston Pac. R.R., 70 Ida. 70, 211 P.2d 402

(1949).

* The questions and answers in the application for employment

were as follows (R. 480) :

“10. Give record of all previous employment in date order (include

service with this Company, if any)

— — or —

To Reason for

—_. Where Employed Occupation Mo Yr. Mo. Yr. Leaving

Peerless Vivien,W. Va. Miner, 111948 71951 To get job

Coal Co. ; Brakemar with Rad .

11. Give Military service and state whether honorably or

dishonorably discharged cr given a medica) discharge.

Army. honorable discharged {sic}.

14. Have you ever been injured! if so when and at what place! Vo

How did it occur?

Extent of injuries!

17. What is the general condition of your health at present! Good”

dent’s examining physician who testified he made notations

of petitioner's answers* (Def. Ex. 5; BR. 249, 483).

In answer to Question No. 10 on petitiorer’s 1951 appli-

cation, relating to previous employment, including service

with respondent, he listed Peerless Coal Co., from Novem-

ber, 1948 to ‘July, 1951 and stated that he ieft “to get job

with Railroad”. “

At the trial petitioner testified that in addition to Peer-

less Coal Co., he had previously worked for a number of

companies, some of which ke recalled and some of which

he could not (R. 202, 217-220). He explained that in the

application he listed only Peerless Coal Co. as previous

employment because “your previous employment, the way

I understand it, is the job you had before you came there”

(R. 226, 227), and asked his cross-examiner, “you mean I

should put ddwn when I used to deliver papers and every-

thing?” (R. 227).

The record also disclosed that when petitioner applied

for employment with respondent in 1948, he listed U.S.

Coal and Coke, and Vera Pocahontas as prior employers

* The questions and answers claimed to have been given orally

were as follows (R. 483) :

“Have you ever had:

Rheumatiom No

A medical discharge from the military service! No (Honorable )

Have you ever had a long or serious ilincss! No

What injuries have you ever received! No

Have you ever had Tumor, Ulcer, Physical Defect or

been operated upon! No

If former employee, when employed! No previous employment

Have you ever been previously examined for employment,

if so, when, where, and by whom was examination made!

If rejected, state cause of rejection. None”

(R. 487). Since respondent did not produce petitioner's

1943 application, the information he furnished at that time

was not révealed.

As to his service with respondent, also referred to by

Question No. 10, petitioner in his answer to Question No. 13,

implied he had previously worked for respondent.’ At the

trial he remembered having been accepted for employment

by respondent on an occasion prior to 1951, but did not

remember when (R. 221, 222, 250, 255, 256, 264); he said

he did not accept the job, which was as a laborer, because

he wanted to be a brakeman (R. 256, 264, 265). Respondent

introduced evidence that petitioner had applied for employ-

ment and had been physically examined and accepted in

1943 (Def. Ex. 8; R. 257, 491) and also in 1948 (Def. Ex. 6;

R. 251, 486; Def. Ex. 7; R. 255, 488) and that on each occa-

sion he had been given credit for a few hours on the job,

entitling him on one occasion to $8.80 and on the other to

$2.97 (R. 352, 353). ; ,

To Question No. 11 asking whether he had been honor-

ably or dishonorably discharged or given a medical dis-

charge from the Service, petitioner answered “honorable

discharged” [sic]. Even though petitioner's certificate of

“Honorable Discharge” was in evidence (Def. Ex. 3; R.

213, 477), respondent claims petitioner's statement that he

had an honorable discharge from Military Service was

false. To support this claim it points to the statement on

the back of the Honorable Discharge certificate (R. 479),

effective January 31, 1946, that the “Reason And Authority

For Separation” was a Certificate of Disability for Dis-

*“13. In connection with any previous application for employ-

ment were you subjected to a physical examination? Yes

If so, when, where, and by whom was examination made!

If rejected, state cause of rejection:

Dr. Murray Excepted” [sic]

charge; this Certificate stated that petitioner had spondy-

lolisthesis, manifested by chronic pain in lower back (Def.

Ex. 12; R. 304, 493).

In answer to Question No. 14, relating to injuries, peti-

tioner stated he had never been injured (R. 481). At the

trial he testified that he had no personal recollection but

had been told by his mother that he had been in a childhood

automobile accident (R. 209, 228, 253, 260). He understood

that in the accident he hurt his side and believed he broke

his ribs (R. 141, 142, 209), but that he “wasn’t hurting”

at the time he applied in 1951 (R. 228).

According to the Anny and VA records petitioner stated

while in the Army in 1946 and later to the VA that in

1941 he was “in automobile accident, acquired painful back,

laid [sic] to sleep in special position on abdomen for 3 mon.

because of pain” (Def. Ex. 18; R. 311, 500), and he had

- “pains in my right side, come from where I have had my

ribs broken (last of 1941); has got bad since I have been

in the Army” (Def. Ex. 13; R. 261, 305, 306, 495).

There was testimony by a doctor that X-ray of peti-

tioner’s ribs revealed no significant changes; that his ribs

‘had nothing to do with petitioner’s back condition (R. 75).

By Queetion No. 17, petitioner was asked: “What is the

general condition of vour health at present!” He answered

“Good” (R. 482).

All the evidence which we outline in this brief, relating

to petitioner’s health, including his employment record,

prior and subsequent to his application, may be said to

bear upon petitioner's statement that his health was good

in July, 1951.

Aside from the answers furnished by petitioner in his

application, respondent claimed that he gave false infor-

mation to its examining doctor. Petitioner denied that re-

spondent’s physician asked him the questions and that he

gave the answers recorded by the physician (R. 247-249).

He stated that the physician examined and spoke to five or

six other men at the same time (R. 223, 224). He admitted

that his signature appeared on the card bearing the doctor’s

notations but explained that he signed a number of papers

(R. 144, 248, 249) and said “they give us a bunch of papers

to sign and tell us to go down and mark up for work”

(R. 247).

In contrast, respondent’s physician stated he had no per-

sonal recollection of petitioner or of examining him in

1951; he relied solely on his records (R. 408, 411). Ex-

plaining an admitted error in the date of the document on

which he noted petitioner’s alleged answers, he testified

that at the time of the examination “I was being crowded;

I had more than J could do” (R. 408). There was thus

created an issue as to whether petitioner gave the medical

examiner the information noted by him.

Even accepting the doctor’s testimony, the evidence

nevertheless furnished legitimate explanation of peti-

tioner’s answers. The information allegedly given by him

was that he had never had a medical discharge from the

military service, or received injuries, and that he had not

previously been employed or examined by respondent.’

Respondent also claimed petitioner falsely told the medical

_ examiner that he never had rheumatism, a long or serious

illness, or physical defect (R. 29 et seq.).

In his 1948 application for employment, following which

he was employed by respondent, petitioner stated he had

had rheumatism (R. 489). Moreover, the evidence, which

revealed that he wxs confused as to whether he had rheu-

* Questions dealing with these items also appeared in petitioner's

application for employment and have been discussed.

matic fever of rheumatism, tended to show that he had

suffered from such an ailment in 1941 or 1942 (R. 258, 261,

495), which he understood might have settled in his back

(R. 262), but that the doctor who treated him “told me that

I would probably outgrow it, and when my back quit hurting

me, I thought I had outgrown it, and I haven't had any more

trouble out of it until I got this lick” (R. 259, 280).

, The plausibility of petitioner's testimony that he did not

- know he had a physical defect (R. 262) was reinforced by

that of the doctors who agreed that spondylolisthesis is

often congenital, and asymptomatic, and that many persons

go through life without knowing they have it (R. 55, 79,

236, 240, 319, 322, 323, 442); that they are able to perform

the most strenuous physical labor without limitation

(R. 55, 57, 63, 320). Asked if his Certificate of Disability

for Discharge from the Army was for spondylolisthesis,

petitioner said “I don’t know what I got it for. I know I

got a C.D.D., a disability discharge, and this ‘spondylo’

thing, I don’t know what you are talking about . . . I can’t

even say that word” (R. 214, 262).

Other evidence too cerroborated petitioner’s statement.

For example, after his Army discharge, he received, for

aggravation of this condition, a small pension (R. 142, 230;

Def. Ex. 16; R. 309, 498), which he understood was for his

side (R. 216, 228), and which was later terminated as

“clearly and unmistakably erroneous” (R. 231; Def. Ex. 17;

R. 310, 499); he was officially advised that his condition

was “not a disability under the law” (R. 500). When cross-

examined as to why his pension was stopped, petitioner

answered: “They told me I was well” (R. 231). “I was

under the impression I was well. I wasn’t hurting” (R. 232,

228).

There was evidence that in 1947 petitioner, because he

was having back pain, sought but was refused hospital

treatment from the VA (R. 299, 317). In December, 1950,

he again applied to the VA for similar care. At that time

the VA caused him to be examined by Dr. Higginbotham,

of Bluefield, West Virginia (Def. Ex. 14; R. 308, 497, fol.

1688) (whose name he gave as reference when he applied

for work), and though there was a diagnosis that he prob-

ably had spondylolisthesis, thereafter he was advised that

the medical findings failed to show need for such hospital

treatment or domiciliary care (Def. Ex. 15; R. 309, 497).

There was evidence that petitioner was in an Army hos-

pital from January 10, 1946, to January 30, 1946, because

he complained of a pain in his side and lower back and

right side (R. 208, 211, 214). He stated he had been put

in a ward “nothing like a hospital you have here . .. we

walked around and shot pool] . . . whatever recreation they

have on the ward... ,” (R. 215).

On this record there was no justification for depriving

petitioner of his right to have the jury decide whether with

intent to deceive respondent he had falsely stated a ma-

terial fact which he believed to be true. Reasonably the

jury may have concluded that petitioner had not made any

representation n: . actually believed by him, on reasonable

grounds, to be true; that he answered all questions in good

faith and to the best of his belief.’

There can be no doubt of his statement that he had re-

ceived an honorable discharge. That he understood han

*In Moulor v. American Life Ins. Co., 111 U.S. 335, 346, involv-

ing a claim by the beneficiary of a life insurance pvlicy, it

appeared that in applying for insurance the insured had not dis

closed one or more ailments which he had, but there was a question

as to whether he knew he had them. The Court held that not

absolute accuracy, but good faith was required in ora the

dition should have veen submitted to the jury as part of pp

tion whether he made “fair and true answers”. See also Ettelson v.

Metropolitan Life Ins. Co., 164 F. 2d 660, 665 (3rd Cir. 1947).

question regarding previous employment to refer only to

his last employer was a reasonable explanation and that

he intended no deceit was evidenced by his indication that

he had been examined previously and by his listing other

employers in an earlier application to respondent. His

failure to list an injury in a childhood automobile accident,

of which he had no independent recollection and from which

he had recovered, seems hardly deceitful. There can be no

serious complaint of his statement that the condition of

his health at present was gaod; considering how long it had

been since he had difficulty with his back, it would appear

unreasonable otherwise to characterize the present condi-

tion of his health. Satisfactory performance of the duties

of a brakeman for so many years following his application

additionally confirmed the honesty of this opinion. See

Edwards v. United States, 140 F.2d 526, 531 (6th Cir. 1944).

If he did not tell the medical examiner that he had had

rheumatism and assuming rheumatism and rheumatic fever

are the same, the jury nevertheless may have found no

fraudulent intent in this answer, in light of his having re-

ported such a history in his 1948 application and his belief

that he had recovered. See Prudential Ins. Co. v. Gourley,

267 F.2d 156, 458 (5th Cir. 1959); United States v. Kelley,

136 F.2d 823, 827 (9th Cir. 1943).

Reasonabiy too the jury may have concluded that no

question asked petitioner to disclose his back trouble. Some

of respondent's questions were so genera! as to be mislead-

ing, some were ambiguous, and some sought opinions,”* not

facts. No question specifically asked for the information,

nor did any question seek the names of doctors who had

on which a claim of fraud may be premised. Lehigh Zinc & Iron

Co. v. Bamford, 150 U.S. 665, 673; Southern Dev. Co. v. Silva, 125

U.S. 247, 250. In doubtful cases, whether a representation is one

of fact or an expression of opinion is a question for the jury. 5

Williston, Contracts §1491 (rev. ed. 1937).

treated petitioner or hospitals in which he had been con-

fined. The question regarding injuries did not call for the

information about his back, since the ailment was con-

genital; the query as to the general condition of his health

at present surely did not, since it was not troubling him.

If petitioner reasonably was justified in his opinion that he

never had a long or serious illness, that question did not call

for the disclosure; and if petitioner, as he testified with

reasonable support from the VA records," did not know

he had a “physical defect,” that question did not.

For these reasons we submit the court had no right to

rule as matter of law that petitioner made any false rep-

resentation as to a material fact with knowledge of its

falsity and with intent to deceive.

B. It was for the jury to decide whether petitioner’s em-

ployment was because of respondent’s reliance on his

representations. :

Aside from the issues involving the truthfulness of pe-

titioner’s statements and his knowledge and intent, which

are discussed in the preceding section, the record presented

for the jury a number of questions relating to respondent’s

conduct. .

There was, for example, ample justification in the evi-

dence for a reasonable finding that respondent’s employ-

ment of petitioner at the time of the accident was not

because of any reliance respondent had placed on his 1951

application. On the contrary the weight of the evidence was

that the 1951 employment had been terminated in 1956, and

In support of petitioner's justification for relying on his

advice from the VA that his condition was “not a disability under

the law”. and that medical findings showed no need for hospital or

domiciliary case, see United States v. Kelley, 136 F.2d 823, 827

(9th Cir. 1943).

petitioner had been rehired in 1957, without reference to

his 1951 application. Further, there was persuasive proof

that respondent had or should have had notice of peti-

tioner’s back condition before it hired him in 1951, and that

in any event it placed no reliance in 1951 on petitioner’s

claimed misrepresentations.

As we have stated, it was necessary for respondent, in

order to support its defenge of fraud, to establish by clear

and convincing proof that it relied on petitioner’s repre-

sentations to its damage, and that it reasonably believed

his representations to be true, Southern Dev. Co. v. Silva,

125 U.S. 247, 250, and whether there was such reliance was

a question for the jury, Clark v. Union Pac. R.R., 70 Ida.

70, 74, 211 P.2d 402, 405 (1949); Prosser, Torts §89 at 551

(2d ed. 1955). |

It is well settled moreover that respondent’s reliance

must have been justifiable. There may be imputed to it

“‘*knowledge of the result, which upon due inquiry, [it]

... Ought to have obtained, and thus the notion of reliance

on the representations made to him may be excluded.’”

Farvar v. Churchill, 135 U.S. 609, 616. Respondent will not

be relieved of the consequences of its own inattention and

carelessness; it may not put faith in representations the

falsity of which, with reasonable care, it would have dis-

covered ; it cannot close its eyes to avoid discovery of the

truth. Andrus v. St. Louis Smelting € Refining Co., 130

U.S. 643; Slaughter’s Adm’r v. Gerson, 80 U.S. (13 Wail.)

379, 383; Casso v. Pennsylvania R.R., 219 F.2d 303 (3rd

Cir. 1955); 1 Harper and James, Torts §7.12 (1956).

Where prudence dictates investigation, the complaining

victim is required to investigate. Shappirio v. Goldberg,

192 U.8. 232. A fortiori he must do so if he has discovered

something which should serve as a warning that he is

being deceived. For this reason it is essential to consider

the special knowledge and experience of the one claiming

fraud. Dalhoff Const. Co. v. Block, 157 Fed. 227 (8th Cir.

1907); Prosser, a at n. 8; 1 Harper and

James, Torts §7.13 at 584 (1956). And the duty to in-

vestigate applicants for employment is greater for inter-

state carriers than for many other employers, for they

“owe a duty to their patrons as well as to those engaged

in the operation of their railroads to take care to employ

only those who are careful and competent to do the work

assigned to them and to exclude the unfit from their

service.” Minneapolis, St. P. d& Ste. M. Ry. v. Rock, 279

U.S. 410, 413.

On the other hand it is well settled that if one makes an

investigation it may be reasonable to infer that he did not

rely on the misrepresentations; the fact that he was un-

willing to accept the statement without verification evi-

dences that he did not believe it. Shapjartio v. Goldberg,

192 U.S. 232, 241; Farnsworth v. Duffner, 142 U.S. 43, 47.

The question of reliance and all the related, issues sug-

gested by this résumé of elementary legal principles were

raised by the evidence in this case, and each was a question

for the jury. The trial court gave no consideratiou to any

of these issues. _

(1) Petitioner’s employment in 1958 was not in reliance

on his 1951 application.

Respondent fired petitioner in November, 1956, for de-

serting his crew and failing properly to perform his duties

(R. 436; Pl. Ex. 22; R. 454, 475). In November, 1957, peti-

tioner was reinstated, with his seniority unimpaired, but he

was required to sign a waiver of_all monetary or other

claims, including those for time lost as a result of his dis-

charge, and vacation rights (R. 436 et seq.; Pl. Ex. 21;

R. 454, 474; Pl. Ex. 23; R. 455, 476). According to testi-

mony offered by respondent, when petitioner returned to

respondent's employment in 1957, he was not physically

examined, except as to vision (though there was a require-

ment that his hearing also be examined) (R. 419-424; Def.

Ex. 32, R. 420, 510). And the evidence was that there was

no record of any exumination of petitioner, except as to

vision (R. 437). Petitioner, however, testified he was physi-

cally examined (R. 145) and there was testimony by an-

other employee who also had been discharged and later

rehired, that the latter underwent a 30 minute physical

examination (R. 382, fol. 1105).

From this it appears either that petitioner was examined

and the results withheld, which surely would justify an

inference that the examination revealed his defect, or that

he was not examined, which would have constituted such

gross carelessness on respondent's part as to defeat its

defense. In either event the jury would have been justified,

though the trial court ignored the issue, in finding no con-

nection between the 1957 hiring and the 1951 representa-

tion.” ;

(2) Respondent knew or should have known of peti-

tioner’s condition.

Moreover respondent knew, or reasonably should have

known, petitioner had a back deformity, since respondent

did not accept petitioner's representations at face, but

rather subjected him to a careful physical examination,

which should have disclosed the condition.

Petitioner’s spondylolisthesis was marked by an apparent

physical abnormality, which he could not conceal. This con-

1* Similar situations have been considered in other cases, where

it was keld that in the second employment there could be no reliance

on misrepresentation in obtaining the first employment. Chiedo v.

Whitehead & Keles Co., 327 Mich. 499, 42 N.W.2d 238 (1950);

Kansas City M. ¢ O. Ry. v. Estes, 203 <.W. 1155, 1160 (Tex. Civ.

App. 1918), aff'd 228 S.W. 1087 (1921).

dition had existed for many vears (R. 237, 319, 323, 431,

442). It wax the kind of a condition often discovered coin-

cidentally in routine examinations (R. 237). According to

a doctor who examined petitioner at respondent's request

after the accident, the condition was the same at the time

of trial as it was “way back in the middle forties” (R. 241,

243). In 1947, a VA examiner had found a “prominent

sacrum with a hollow back” (R. 316).

After the accident he was found to have a depression,

“a little jog”, in his lower back, which was readily seen

and felt (R. 75, 235, 236, 431). Also the lower curve in

his back was very much more marked than normal (R. 54,

57, 75, 456, 457). To an examining doctor, this indicated

spondylolisthesis, even without X-rays (RB. 57).

Though these indications of spondylolisthesis existed

when petitioner was examined for employment in 1951,

respondent's medical examiner did not note them. Aceord-

ing to him, the physical qualifications for brakemen were

the highest the railroad required and, though “at that time”

respondent made no X-rays in pre-employment examina-

tion (R. 410), he characterized his examination of peti-

tioner as “thorough” (R. 405, 411, 422).. Yet he failed to

detect the obvious symptom of petitioner’s condition (R.

423). Some light may have been shed on this omission by

his testimony that at the time of his examination “I was

being crowded; I had more than I could do” (R. 408).

This evidence amply supported the conclusion that re-

spondent did not rely on petitioner's representations, but

rather on its own examination, and that by that investiga-

'* He also characterized his examination as a screening examina-

tien (R. 410). There was testimony from petitioner and another

examined at the same time that they were stripped (R. 246, 382).

The other worker stated he was requested to bend and touch the

floor and he believed the doctor felt his back (R. 382)

tion it was charged with knowledge of petitioner's back

The jury would have been reasonabie also if it had fouad

that respondent was charged with knowledge of the claimed

fraed by petitioner's prior applications for employment,

which referred to hig having had rheumatism. It may have

found that respondent wa- put on notice too by petitioner's

statement, when asked to state the cause of rejection, if

rejected in connection with previous applications for em-

ployment, that se had been “Excepted”. If respondent’s

testimony is believed, that petitioner’s sick record while

im the service of respondent was marked by extraordinary

absence (BR. 375, 06-608), this too was sufficient to put it on

notice of defective physical condition.

(3) Respondent did not rely on petitioner's representa-

tions when it hired him in 1951.

The record also piainiy excluded the notion that respon-

dent hired petitioner in 1951, in reliance on his representa-

tions. On this issue the only reasonable conclusion from

the evidence was that respondent relied, nut on petitioner's

representations, but on its observation and examination of

petitioner; that its examination was careless; that it shut

ite eyes in order to avoid discovery of the truth, and be

came estopped to claim it was misled.

Respondent's application fori called for petitioner's age,

address, relatives, education, and certain infor mation about

his pliysical history and condition. It also called for ref-

erences which petitioner furnished. On the reverse side of

the form was written: “Thix man has worked in mines and

dropped cars around tipple, aleo neat and clean in appear.

ance” (BR. 463).

Elementary caution dictates some investigation in hiring

any employee. Respondent recognized its duty to take care

to exclude the unfit from its service, Minnecapolts v. Rock,

279 US. 410, 413, by requiring names of former employers

and references, by its insistenes on a “thorough” physical

eXamination and by its rule allowing thirty days for in-

vestigation." In setting different standards for medical

eXaminations, it recognized too that the need to investigate

is especially felt when luring a brakeman entrusted with

the personal safety of himself and others and with the

handling of expensive equipment uw a hazardous industry.

Yet apparentiy it made no investigation, before or after

petitioner was hired, even of the questionable items on

the face of petitioner's application.”

‘* Article 17\¢) of Rates of Pav and Regulations, Norfolk @

Western Ry Co (Rev. 1943). in force at the time petitioner was

hired, specified -

“Applications for employment will be accepted or rejected

within thirty (30) days If not notified within thirty (30)

days, applicant will be considered as accepted”

These regulations were not introduced in evidence, but they were

the subject of agreement between respondent and the Brotherhood

of Railroad Trainmen, and were furnished by respondent to its

~JIn Minneapols, 8t P 4&4 8 Ste M RR + Borum, 261.8. 467,

449, the Court deld. under an identical rule, that the railroad “did

not, without mor>, have the right to remove plaintiff from its service

on account of such misrepresentation |as to |." See Carter v.

Peoria dd PU. Ry.. 275 I. App. 298 (1984); v. Northern

Pac. Ry. 215 Minn. 442, 447, 10 N W.2d 382 385 (1948).

of course, there was no reliance on his application. Casso v. Penn-

sylveme RR. 219 F.2d 303, 304 (3rd Cir. 1955). If, on the other

hand, he left his prior job for a job he did not have, this was

Petitioner also gave as reference the name of Dr. ee.

a doctor who examined for the VA in Bluefield, West Virginia (RB.

482. foil. 1688).

Asked if he had been physically examined in connection with

any previous examination for employment and rejected, petitioner

said “Excepted” (sic) (R. 481)

It is difficult to conceive of any justification for respon-

dent's failure te carry out its duty to make an investigation

of petitioner's application.” If it had, it would have dis-

covered petitioner's condition. In its haste to employ peti-

tioner, respondent hired him on the day he applied in 1961

(BR. 373) and failed even to check its own records (where it

present his “honorable discharge” (which would have dis-

closed the Certificate of Disability for Discharge), nor did

it phone the local VA doctor given as reference (though use

as reference of a dector who examined for the “A sug-

gested some health problem )

To effectuate its duty to exercise care in hiring, respon-

dent relied solely on the physical examination by its medi-

cal examiner. Its insistence on a “thorough” examination

was of course a recognition that good sense forbade blind

reliance on the application, and reasonably suggested re-

spondent was relying on the examination, not the peti-

tioner’s statements. The inadequacy of the exammaticn,"’

Tate, The Pitness end Judicions Selection of New Em

ployees, sugre, at 21

however, demonstrated that though respondent had no in-

tentron of relying on petitioner's representations, the pro-

cedure it set up for investigation was not calculated to

diselose obvious defects such as spondylolisthesis. Whether

this was deliberate or from lack of care, the plain inference

remained that respondent was relying on its investigation,

pot on petitioner's representations.

Respondent is a well established carrier. At its disposal

were extensive rerources for physical examination and in-

vestigation of applicants’ references and prior employers.

Considering its special knowledge and experience, it is in-

congruous indeed to have respondent claim that it was de-

frauded by petitioner, a laborer who submitted himself to

all the examination and investigation requested by respon-

dent, and whose physical defect was apparent on physical

examination and repeatedly referred to in official records

concerning him.

The only reasonable inference from the evidence was not

that respondent was defrauded, but rather that it was care-

less or calculating. The record compels the conclusion that

respondent shirked its duty as an employer, and especially

as a): employer in the dangerous work of railroading. It

therefore was charged with the knowledge that even the

slightest inquiry would be uncovered. On the issue of fraud

in procuring employment, therefore, not respondent, but

petitioner was entitled to a directed verdict.

_ to be inadequate without X-rays. [his was implied by the doctor's

testimony that at the time petitioner was examined in 195] the

railroad did not make X-rays (R. 410). presumably he meant that

as of some subsequent date respondent commenced to X-ray appli-

eants. This is a likely inference, since back X-rays in pre-employ-

ment examinations have been urged as a necessary precaution and

have been required by many carriers. X-rays of the Spine in Pre-

Employment and Periodic Erammations, Proceedings of the

Thirty-seventh Annual Meeting of the Medical and Surgical Sec-

tion, Association of American Railroads, 45-54, 61, 62 (1957).

pat

‘The Trial Court Erroneously Interpreted the Law in

Directing a Verdict for Respondent.

Assuming, but not conceding, that the evidence had been

such as to justify a finding that petitioner obtained employ-

ment by fraud, petitioner nevertheless was entitled to the

protection of the FELA.

Since petitioner.admittedly was hired by respondent and

for more than five years performed his duties satisfactorily,

he surely could not be deprived of the benefits of the law

in the absence of some overriding consideration to the con-

trary. And in appraising his status it is significant that

the FELA was enacted primarily for the benefit of railroad

workers who found themselves without safeguard in the

hazardous industry in which they worked, and that the

statute is to be interpreted liberally for the protection of

~» the workers." Kernan v. American Dredging Co., 355 U.S.

"626, 432; Griffith, The Vindication of a National Public

Policy Under the Federal Employers’ Liability Act, 18 Law

& Contemp. Prob. 160 (1953). Moreover, “employee” is not

carriers, whether or not they emplo in a technical sense.

See dissenting opinion of Mr. Justice in Hull v. Phile-

delphia & BR. By., 252 U.S. 475, 488, in which he said:

used in the Act in any special sense. General principles

apply in determining who is an employee, Baker v. Teras &

Pac. Ry., 359 U.S. 227, 228; Hull v. Philadelphia & R. Ry.,

251 U.S. 475, 479; Robinson v. Baltimore d O. R.R., 237 US.

84, 94.

Respondent argued to the trial court that petitioner was

not entitled to recover because his employment contract

was void, and he therefore was not an employee. If it be

considered, as respondent contends, that petitioner’s em-

ployment in 1958 was pursuant to his 1951 application, the

express terms of that contract plainly signified that his

status was voidable, not void. The application form did not

provide that misrepresentation would void his status as an

employee; it stated that a false statement or misrepresen-

tation would justify dismissal’* (R. 482), and respondent so

construed the contract by its dismissal of petitioner, after

a hearing, in December, 1959, “for falsifying application

for employment as Yard Brakeman and false statements

made in connection with physical examination for employ-

ment, July 24, 1951” (R. 39).

This interpretation by respondent accorded with the well

recognized principle that fraud in the inducement of a con-

tract renders it voidable, not void. And a voidable contract

is operative until rescinded. Payne v. Daugherty, 283 Fed.

353 (8th Cir. 1922); Laughter v. Powell, 219 N.C. 689, 14

S.E.2d 826, 136 A.L.R. 1116 (1941), cert. denied, 314 US.

666: 5 Williston, Contracts 51488 (rev. ed. 1937). It is

only when fraud occurs in the factum, when a contracting

party, through fraud, is led to do something other than

** At the foot of petitioner's 1951 application, above his signature,

appeared the following statement, as part of the printed form (R.

482) :

“TI fully and definitely understand that any false statement or

misrepresentation herein will justify my dismissal from the

service without an investigation hearing, regardless of when

such fact may be discovered by the Company.”

that which he thinks he is doing, that a contract is deemed

void from its inception. 3 Pomeroy, Equity Jurisprudence

§899 at 543, 544 (5th ed. 1941) ; 5 Williston, Contracts $1488

at 4154 (rev. ed. 1937); 2 Restatement of Contracts, §475

at 905 (1932).

These principles are exemplified in Payne v. Daugherty,

283 Fed. 353 (8th Cir., 1922), a personal injury action under

the FELA, resulting from an employee's fall, in which the

court affirmed the exclasion of evidence tendered in sup-

port of a defense that the employee had procured employ-

ment inter alta by concealing a history of epilepsy to which

his fall was attributed. The Court recognized the right of

the railroad to attribute the plaintiff's fall to prior injury

or affliction but held:

“That is far different from permitting a retroactive dis-

solution of the relation of master and servant, by virtue

of the contract, which, even if voidable, was, while it

subsisted, atteuded with the duty, required by law, for

the safety of the latter.... We regard the decisions

such as Lupher v. Atchison, T. & S. F. Ry. Co., 81 Kan.

585, 106 Pac. 284, 25 L. R. A. (N.S.) 707, as declaring

the sound and just rule, namely, that there is liability

to the employee, notwithstanding the inducement to the

contract. Furthennore, this action was brought under

the federal Employers’ Liability Law .. . and the fault

of the defendant was alleged under the Safety Appli-

ance Acts .... And in our opinion we should hold that

the defense urged was not available, in view of the

positive terms of Sections 1 and 5 of the former act.”

283 Fed. at 354.

But respondent contends that Minneapolis v. Rock, 279

U.S. 410, supports its position. Rock's application for em-

ployment was rejected because of his poor physical con-

dition. A few days later he reapplied and, concealing his

true identity, was accepted subject to physical examination.

He procured a friend to take the physical examination and

believing he had examined the petitioner, the examining

physician reported favorably on the application. About

15 months later Rock was injured. He brought suit and

secured a verdict under the FELA. The judgment was

afirmed by a state court, but reversed by this Court.

It has been ably argued that the Rock decision confused

the consequences of fraud in the inducement and fraud in

the factuin and otherwise failed to accord with accepted

judicial rationale and that it should be reversed.” Since it

may be reasoned that the railroad had no intention to con-

tract with Rock, but thought it was hiring the man who took

» “Not only, therefore, is the rule adopted in the Rock Case out

of harmony with the general principles of law governing the

master-servant relationship and with the current of prior decisions

in similar cases; it is also out of harmony with the accepted-judicial

rationale of the employer-employee relationship under the Em-

ployers’ Liability Act and it fails to promote any purposes of

expediency which might justify the departure from logical har-

mony with the course of decision elsewhere ... {T]he purpose of

the Employers’ Liability Act was .. . to place upon the industry

the duty of caring for the human sacrifices to the demands of the

machine age in a manner more satisfactory to modern thought than

that provided by the rules of the common law. Employees, injured

by the employers’ negligence, come under the protection of its

terms. Rock answers to that description, and it seems a perversion

of the purpose of the Act to place him beyond the pale merely

because he lied to get his job.” Merrill, Misrepresentation to Secure

Employment, 14 Minn. L. Rev. 646, 656 (1930) ; see also 43 Harv.

L. Rev. 141 (1930); 28 Mich. L. Rev. 357 (1930); 14 Minn. L.

Rev. 98 (1930).

As stated in Boshaw v. J. J. Newberry Co., 259 Mich. 333, 337,

243 N.W. 46, 47 (1932):

“While in Federal decisions there seems to be ¢ trend to the

contrary (see Minneapolis, etc., R-Co. v. Rock, 279 U.S. 410

{49 Sup. Ct. 363!), the weight of authority in State courts

sustains the right of an employee to compensation notwith-

standing he secured the employment through fraud or misrep-

resentation as to his physical condition, former discharge, age,

etc.”

the physical examination, it may be said also that in Rock

there was fraud in the factum, which would have justified a

finding that the employment contract was void, rather than

voidable. See Qualls v. Atchison, T. @ S. F. Ry., 112 Cal.

App. 7, 17, 296 P. 645, 650 (Aj»p. Div. 1931); Plick v. Toye

Bros. Auto d Taxicab Co., 13 La. App. 525, 537, 127 So. 59,

66 (1938).

Careful reading of Rock, however, establishes that it was

not considered in conventional terms of the effect of fraud

on a contract. There is no suggestion of an intention to

alter the rule of Payne v. Daugherty, 283 Fed. 353 (8th

Cir. 1922). It did not determine that Rock was not an

employee; it held that he was not of right an employee

within the meaning, or entitled to the protection, of the

FELA. Rock was not deprived of the benefits of the FELA

merely because he concealed his physical condition. As the

Court explained in Minneapolis, St. P. d S. Ste. M. R.R.

Co. v. Borum, 286 U.S. 447, 449, Rock was foreclosed be-

cause he obtained employment “by fraudulently evading the

company’s rule requiring applicants to submit to a physical

examination. ...” This evasion was found to be irreconcil-

able with the carrier’s duty to patrons and employees to

take care to employ only competent workers, and conse-

quently with putlic policy. In other words, if the railroad

could not examine Rock, it could not use the care the law

required of it. The Court held:

“The deception by which he subsequently secured em-

ployment set at naught the carrier’s reasonable rule

and practice established to promote the safety of em-

ployees and to protect commerce. It was directly op-

posed to the public interest because calculated to em-

barrass and hinder the carrier in the performance of

its duties and to defeat important purposes sought to

be advanced by the Act. 279 U.S. at 414.

e a & s 3

“Right to recover may not justify [sic] or reasonably

be rested on a foundation so abhorrent to public policy.”

279 U.S. at 415.

The essence of the holding therefore was that an em-

ployee may not recover under the FELA if his employment

is found to be against the public policy inherent in that

Act. Plick v. Toye Bros. Auto & Taxicab Co., 13 La. App.

525, 537, 127 So. 59, 66 (1930); Ganga v. Ford Motor Co.,

250 Mich. 247, 249, 230 N.W. 159 (1930); Tezas € N. O. R.R.

v. Webster, 123 Tex. 197, 70 S.W.2d 394 (1934), cert. denied,

293 U.S. 580; Fort Worth @ D.C. Ry. v. Griffith, 27 S.W.

2d 351, 353 (Tex. Civ. App. 1930). So interpreted Rock

states a well established principle. Ritter v. Mutual Life

Ins. Co., 169 U.S. 139, 154; United States Bank v. Owens,

27 U.S. (2 Pet.) 527, 538.”

21 Soon after Rock this Court decided Minneapolis, St. P. & 8.

Ste. M. R.R. v. Borum, 286 U.S. 447, a personal injury action

under the FELA, defended on the ground that the worker falsely

understated his age. Borum, as we have noted, paraphrased Rock

as holding that one who obtained employment by fraudulently

evading the company’s ruJe requiring applicants to submit to a

physical examination could not maintain an action for injury

under the FELA. The Court noted Borum’s physical fitness, his

7 years of satisfactory service and the fact that neither his age

nor his physical condition contributed to cause his injury. It

deprecated the materiality of his misrepresentation and the rail-

ruad's reliance upon it and was influenced by the point that under

its 30-day rule the railroad could not, without more, remove peti-

tioner from its service for misrepresentation. In the same vein,

it pointed out that his physical condition was not shown to be such

as to make his employment inconsistent with the carrier's discharge

of its duty to select fit employees. On this basis it found the case

not within the rule of Rock. It is apparent therefore that in Borum

there was no purpose to extend the rule of Rock.

This reasoning does not deprive petitioner of his right

to the protection of the FELA. On the contrary it requires

that he be given that protection. If the facts be assumed

against him, he concealed a physical defect, but he did not

“set at naught the carrier’s reasonable rule and practice

established to promote the safety of employees and to pro-

tect commerce.” 279 U.S. at 414. He did not make it im-

possible for the carrier to examine him and to carry out

its duty to exercise cAre in hiring. Un the contrary he sub-

mitted himself to such physical examination as respondent

chose to give and afforded it full opportunity to exercise all

the care it chose to exercise in selecting him. And, as we

have established, even the most cursory investigation would

have uncovered what is now claimed to have been a fraud.

To deprive petitioner of the protection of the FELA

would not, in the language of Rock, stimulate carriers to

proper performance of their duty to exercise care in hiring.

Such an extension of the rule would negate the very phi-

losophy which Rock protects. It would put a premium on

laxity. It would encourage a carrier to minimize its care in

hiring, secure in the hope that, if an injury occurred, it

might discover some misrepresentation, and in the knowl-

edge that such evidence would preclude relief. The purpose

of the FELA requires that petitioner not be deprived of

the protection of that Act.

Since Rock was decided it has been discussed in a number

of cases dealing with fraud in procuring employment as a

defense to personal injury proceedings by employees.” In

*? In a number of these cases the only claimed misrepresentation

related to the age of the employee, which was understated in

Boshaw v. J. J. Newberry Co., 259 Mich. 333, 243 N.W. 46 (1932) ;

Gange v. Ford Motor Co., 250 Mich. 247, 230 N.W. 159 (1930) ;

Laughter v. Powell, 219 N.C. 689, 14 8.E.2d 826, 136 A.L.R. 1116

(1941), cert. dented, 314 U.S. 666, and overstated in v. Big

Horn Construction Cu., 75 Wyo. 276, 295 P.2d 750 (1956); New-

general they have followed the traditional reasoning that

misrepresentation in procuring employment may give rise

to a right of rescission by the employer, but does not void

his status.” In some the misrepresentation has been found

kirk v. Los Angeles Junction Ry., 21 Cal.2d 308 at 320, 131 P.2d

535 at 543 (1942); Matthews v. Atchison, T. & S. FP. Ry., 54 Cal.

App.2d 549, 129 P.2d 435 (Super. Ct. 1942); Powers v. Michigan

Cent. R.R., 268 Ill. App. 493 (1932) ; Plick v. Toye Bros. Auto &

Tarwab Co., 13 La. App. 525, 127 So. 59 (1930). In some, other

information has been involved, such as name or identity: Eresafe

v. New York, N. H. & H. R.R., 250 F.2d 619 (2nd Cir. 1957);

Matthews v. Atchison, T. d& S. F. Ry., supra; Phillips v. Southern

Pac. Co., 14 Cal. App.2d 454, 58 P.2d 688 (App. Div. 1936) ;

Plick v. Toye Bros. Auto & Taricab Co., supra; Ganga v. Ford

Motor Co., supra; prior employment, discharge by prior employer,

references, and claims against prior employers: Eresafe v. New

York, N. H. & H. R.R., supra; Matthews v. Atchison, T. & 8. FP.

Ry., supra; Phillips v. Southern Pac. Co., supra; Qualls vy. Atchison,

T. ad 8. F. Ry., 112 Cal. App. 7, 16-18, 296 P. 645 (App. Div. 1931) ;

Powers v. Michigan Cent. R.R., supra; Dawson v. Tezas & Pac.

Ry. Co., 123 Tex. 191, 70 S.W.2d 392 (1934); cert. denied, 293

U.S. 580 (1934); Tezas d N. O. R.R. v. Webster, 123 Tex. 197, 70

S.W.2d 394 (1934), cert. denied, 293 U.S., 580; Fort Worth

& D.C. Ry. v. Griffith, 27 S.W.2d 351 (Tex. Civ. App. 1930).

A number have involved claims of misrepresentation of physical

condition, either solely or along with other facts: Eresafe v. New

York, N. H. & H. R.R., supra; Casso v. Pennsylvania R.R., 219

F. 2d 303 (3rd Cir. 1955); Talarowski v. Pennsylvania R.R., 135

F. Supp. 503 (D. Dela. 1955) ; Carter v. Peoria & P. U. Ry., 275

Ill. App. 298 (1934); Clark v. Union Pac. R.R., 70 Ida. 70, 211

P.2d 402 (1949); Whste v. Thompson, 181 Kan. 485, 312 P.2d 612

(1957) ; Powers v. Michigan Cent. R.R., supra; Blanton v. Northern

Pac. Ry., 215 Minn. 442, 10 N.W.2d 382 (1943); Dawson v. Tezas

& Pac. Ry., supra; Fort Worth & D.C. Ry. v. Griffith, supra.

It is interesting to note that in all but three of these cases, the

decision has beeuw favorable to the employee: Talarowski v. Penn-

sylvania R.R., supra, in which a pretrial motion to strike the

defense of fraud was denied, because it involved jury questions;

Clark v. Union Pac. R.R., supra, in which the issue of reliance was

held to be a jury question; and Fort Worth and D.C. Ry. Co. v.

Griffith, supra, in which the court's logic plainly was imperfect.

3 Matthews v. Atchison, T. a4 S. FP. Ry., supra; Phillips v. South-

ern Pac. Co., supra; Plick v. Toye Bros. Auto & Taxicab Co., supra;

Blanton v. Northern Pac. Ry., supra, Laughter v. Powell, supra;

immaterial."* In some it was recognized that the defense

was without merii if the employer knew or should have

known the true facts.” Others have recognized that Rock

was based on the strong public policy that care be exer-

cised in hiring fit employees.™

Where physical condition has been an issue, emphasis has

been placed upon the actual physical fitness of the em-

ployee; in this connection the courts have often adverted,

as evidence of fitness, to the number of years of satisfactory

work performed by the employee, and to the fact that the

worker was physically examined and passed.” On this point

Rock’s case has been distinguished on the ground that he

was not physically examined.” Basically the cases reflect

a refusal to take from the bona fide worker the benefits

of the FELA, and an unwillingness to relieve the railroads

of responsibility for their negligence.”

Dawson v. Tezas & Pac. Ry. Co., supra; Texas & N. O. R.R. v.

Webster, supra; Long v. Big Horn Construction Co., supra; Annot.

Misrepresentations in Seeking Employment, 116 A.L.R. 1116 (1942).

* Powers v. Michigan Cent. R.R., supra; Qualls v. Atchison,

T. & 8. FP. Ry., supra.

** Eresafe v. New York, N. H. & H. R.R., supra; Casso v. Penn

sylvania R.R., supra; Phillips v. Southern Pac. Co., supra; Carter

v. Peoria & P. U. Ry., supra; Whste v. Thompson, supra; Ganga

v. Ford Motur Co., supra; Blanton v. Northern Pac. Ry., supra.

* White v. Thompson, supra; Plick v. Toye Bros. Auto & Taxicab

Co., supra; Ganga v. Ford Motor Co., supra; Tezas & N. O. B.R.

v. Webster, supra; Fort Worth & D.C. Ry. v. Griffith, supra.

** Newkirk v. Ios Angeles Junction Ry., supra; Matthews v.

Atchiscn, T. & 8. F. Ry., gupre; Carter v. Peoria d P.U. Ry., supra;

White v. Thompson, supra; Bianton v. Northern Pac. Ry., supra;

Laughter v. Powell, supra; Tezas & N. O. RRB. v. Webster, supra;

Long v. Big Horn Construction Co., supra.

* Eresafe v. New York, N. H. d& H. B.R., supra; Qualls v. Atcht

son, T. ad 8. F. Ry., supra; Carter v. Peoria & P. U. Ry., supra;

Plick v. Toye Bros. Auto & Taxicab Co., supra; Ganga v. Ford

Motor Co., supra.

** See especially Phillips v. Southern Pac. Co., supra.

Many courts have sought to derive from Rock and Borum

a criterion to apply to the defense of traud in procuring

employment, though no court has found the facts before

it within the rule it stated. Taking phrases from Rock and

Borum out of context, some have phrased the test in terms

of false representation of such character that it substan-

tially affected the examining surgeon’s conclusion that the

employee was in guod health and acceptable physical con-

dition,” or of such character as to have been a substantial

factor in the hiring.*' As an element of the defense a num-

ber of courts have imposed a requirement that the employee

be in fact physically unfit for employment and that such

unfitness be a cause of the accident.” Some have said the

contract will be void and recovery precluded only if there

is a causal connection between the accident and the mis-

statements.™ One opinion interpreted Rock to mean no re-

covery may be permitted because the contract is void if

there is positive and affirmative fraud, even though unre-

lated to physical condition.”

These courts have missed the basic point that Rock was

precluded because he set at naught the carrier’s reasonable

rules and practice established to promote safety; he pre-

vented the railroad from exercising care in hiring. The

materiality of his misrepresentations and the railroad’s re-

liance upon them were of no necessary consequence in Rock.

* Casso v. Pennsylvania R.R., supra; Southern Pac. Co. v. Libbey,

199 F. 2d 341 (9th Cir. 1952).

*! Talarowski v. Pennsylvania R.R., supra.

32 Plick v. Toye Bros. Auto & Taricab Co., supra; Ganga v. Ford

Motor Co., supra; Blanton v. Northern Pac. Ry., supra.

33 Matthews v. Atchison, T. dS. F. Ry., supra; Phillips v. South-

ern Pac. Co., supra; Clark v. Union Pac. R.R., supra; Long v.

Big Horn Construction Co., supra.

* Fort Worth & D.C. Ry. v. Griffith, supra.

The controlling feature, as we have emphasized, was that

his fraud prevented the railroad from performing its duty

to its other employees and to the public. His fraud in

reality resulted in a contract which was contrary to a strong

publie policy.

In this connection respondent makes much of the fact

that petitioner’s injuries were sustained at the part of his

body where his defect existed. To bolster this argument it

points to cases stating there can be no recovery if there is

a causal connection between the misstatement and the in-

jury. These opinions, however, refer to the happening of the

accident, not the existence of the injury. In Matthews v.

Atchison, T. dé S. F. Ry., 54 Cal. App. 2d 549, 129 P. 2d 435

(Super. Ct. 1942), where the employee understated his age

and there was evidence that the effect of his injury was

more serious because of his age than if he were younger,

the court specifically held that the requirement of causal

connection related to the happening of the accident, not its

effect.” That the employee sustained injury to his elbow,

where he had a prior existing condition, just as petitioner

did, was held to relate only to the amount of his recovery.

But this discussion misses the mark. There is no problem

of connecting misstatements with the accident or injury.

Unless the fraud is deemed to violate public policy, as

Rock's did, the applicant becomes an employee and though

his contract may be subject to rescission, he may not be

barred from recovery under the FELA. Op this view it is

immaterial whether there was any relationship between the

misstatement and the accident or injury.

** See also Long v. Big Horn Construction Co., supra.

Conclusion

For these reasons we submit the action of the trial court

was erroneous and should be reversed and this case re-

manded with instructions to the trial court to entertain

favorably a motion by petitioner to strike the defense of

fraud heretofore interposed by respendent.

—

Respectfully submitted,

Sipney S. Sacus

Lewis Jacops

Leonarp ('. GREENEBAUM

737 Woodward Building

Washington 5, D. C.

Water G. Burtos

Water W. Burtox

Law Building

Princeton, West Virginia

Attorneys for Petitioner

Sacus ann Jacors

Berros, Burtos & Burkett

Of Counsel

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