Opposition Brief — Conrad v. Pennsylvania Railroad

INDEX TO BRIEF.

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I. The Petitioners’ Right to Sue Under the Fed-

eral Employers’ Liability Act Has Been Ex-

tinguished by Section 6 of the Act ..........

II. The Voluntary Compensation Agreements Do

Not Suspend the Operation of Section 6....

III. Section 5 of the Federal Employers’ Liability

Act Has No Application to the Present Case

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TABLE OF CASES CITED.

Page

Bell v. Wabash Ry. Co., 58 F. (2d) 569 (C. C. A. 8th

PPE rr eee ee reer Teer er ry rrr 5, 6, 16

Birkhead v. Ward, 35 Pa. Super. Ct. 235 (1908) .... 13

Deihm v. Snell, 119 Pa. 316, 13 Atl. 283 (1888) .... 18

Duncan v. Thompson, 315 U.S. 1 .................6. 15

Engel v. Davenport et al., 271 U. 8. 33 (1926) ...... H)

Flynn v. N. Y., N. H. & H. R. R. Co., 283 U. S. 53

TREE aks Chas KG kaG dehae se NhS Ses ceKhiah AAW ee ke 5

Gairt v. Curry Coal Min. Co., 272 Pa. 494, 116 Atl. 382

8 SIPS rene ne repens tema yer ysi ge pe re een 14

The Harrisburg, 119 U. S. 199 (1886) ............... 6

Hegler v. Faulkner, 127 U. S. 482 (1888) ......... 13

Myers v. Reading Co., 67 S. Ct. 13834,—U. S.— (1947). 11

New York Central R. R. v. Kinney, 260 U.S. 340 ..... 10

Pollen v. Ford Instrument Co. Ine., 108 F. (2d) 762

a ae re ere rer er errr 6

Herb v. Pitcairn, 325 U. S. 77 (1945) ...........c00. 8, 12

Seaboard Airline Railway v. Renn, 241 U. S. 290

Ce oe eee aka ec Ua use set an ibn saeees 9

Tiller v. Atlantic Coastline Railroad Co., 323 U. 8.574 11

U.S. ex rel. Nitkey v. Dawes, 151 F. (2d) 639 (C. C. A.

7th 1945), cert. den. 327 U. S. 788 (1945) ...... 6

Virtue v. J. Lee Plumber, Inc., 111 Pa. Super. Ct. 476,

ee ee oi cao oni debe racendaubees 14

Wichita Falls and So. R. R. Co. v. Durham, 132 Tex.

143, 120 S. W. 2d 803 (Tex. 1938) .........0.0. 16

TABLE OF AUTHORITIES CITED.

Page

Federal Employers’ Liability Act, c. 149 of the Act of

April 22, 1908, 35 Stat. 65, as amended, (45 U. S.

Ch Me Ge Oe WS oe ea vies iccasdercacaccc, 2, 5, 14

Judicial Code, Section 240 (a) as amended by the act

of February 13, 1925 (28 U.S. C. 347) .......... 2

Laws of Pennsylvania, Act of June 2, 1915, P. L. 736,

Art. ITI, Par. 301, as amended (77 Purdon’ ~ Stat.

ee Be eg ene 9

PELE LEE INE EOL NI

a

IN THE

Supreme Court of the United States.

Ocroser Term, 1947.

No. 149.

CLAIR CONRAD (Puaintirr-ApreLLANT IN THE CouRT

BELow),

Petitioner,

v.

PENNSYLVANIA RAILROAD COMPANY (Derenpant-

APPELLEE IN THE Court BELow),

Respondent,

No. 150,

PASQUALE DAMIANO (Puarntirr-AprpELLANT IN THE

Court BELow),

Petitioner,

v.

PENNSYLVANIA RAILROAD COMPANY (Derenpanr-

APPELLEE IN THE Court BELOW

’

Respondent.

BRIEF FOR RESPONDENT IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI.

ee

Opinions Below.

The opinion of the Circuit Court of Appeals for the

Third Cireuit (Conrad R. 12) is reported in 161 F. (2d)

534. The opinion of the District Court (Conrad R. 7a) is

not reported.

to

Brief for Respondent

Jurisdiction.

The jurisdiction of this Court is invoked under Section

940 (a) of the Judicial Code as amended by the Act of Feb-

ruary 13, 1925 (28 U. 8. C. 347).

Question Presented.

In each of these cases the petitioner instituted a suit

in the United States District Court under the Federal Em-

ployers’ Liability Act on an alleged cause of action that

admittedly accrued more than three years before the date

upon which the action was instituted. The question pre-

sented in each case is whether the prior execution by the

petitioner of a voluntary compensation agreement under

the provisions of the Pennsylvania Workmen’s Compensa-

tion Act, which does not require proof of negligence, and

the receipt by petitioner of payments under the agreement,

suspended or tolled the operation of Section 6 of the Fed-

eral Employers’ Liability Act which provides that no ac-

tion shall be maintained under the statute unless commenced

within three years from the day the cause of action accrued.

Statute Involved.

Section 6 of the Federal Employers’ Liability Act pro-

vides (45 U. S. C. 56):

‘‘No action shall be maintained under this chapter

unless commenced within three years from the day the

cause of action accrued.’’ * * *

Statement.

The petitioner, Conrad, brought a suit in the United

States District Court for the Eastern District of Pennsyl-

vania on June 12, 1946 under the Federal Employers’ Lia-

bility Act to recover for injuries alleged to have been in-

curred on October 12, 1941 while the petitioner was in the

employ of the respondent.

Brief for Respondent 3

Petitioner, Damiano, brought a similar suit in the same

court on May 16, 1946 under the Federal Employers’ Lia-

bility Act to recover for injuries alleged to have been in-

curred on November 4, 1942 while the petitioner was in the

employ of the respondent.

Neither petitioner instituted adverse proceedings under

the Pennsylvania Workmen’s Compensation Act, but each

petitioner, some time within a year from the date on which

his injuries occurred, executed a separate agreement with

the respondent for payment of compensation. Copies of

these agreements were never produced or incorporated in

the record. Two months after respondent’s motion to dis-

miss had been filed an ex parte affidavit of petitioner Conrad

(Conrad R. 5a), containing statements with respect to his

agreement, was filed with the District Court. Two weeks

after respondent’s motion to dismiss had been filed an ex

parte question and answer statement of petitioner Damiano

(Damiano R., 6a), referring to his agreement, was filed with

the District Court.

Both cases were heard by the District Court and the

Circuit Court of Appeals on the theory that the compensa-

tion agreements were made under, and in compliance with,

the Pennsylvania Workmen’s Compensation Act.

Payments were made by respondent to petitioner Con-

rad for an unstated period. The respondent also made pay-

ments to petitioner Damiano until after he brought suit

under the Federal Employers’ Liability Act. It may be

assumed that these payments were made under the com-

pensation agreements although this fact is not affirmatively

shown by the record.

In his complaint, the petitioner, Damiano, alleged

in the alternative that he was induced to enter into the com-

pensation agreement ‘‘either fraudulently or by a mutual

mistake of fact.’’ The petitioner, Conrad, made no such

allegation and in his case the issue of fraud was never

raised in the courts below.

me

4 Brief for Respondent

In the District Court the respondent moved to dismiss

each suit on the ground that it had been commenced more

than three years after the cause of the action accrued. The

District Court granted the motion in both cases and its

judgments were affirmed by the Cireuit Court of Appeals

for the Third Circuit.

OED HES ERS PR TERI LT RL RS EET =

Brief for Respondent 5

ARGUMENT.

I. The Petitioners’ Right to Sue Under the Federal Em-

ployers’ Liability Act Has Been Extinguished by Sec-

tion 6 of the Act.

In each of the cases presented, the petitioner’s right of

action arose under the provisions of the Federal Employ-

ers’ Liability Act, c. 149 of the Act of April 22, 1908, 35

Stat. 65, as amended, (45 U. S. C. A. §51 et seq.), more

than three years before any suit was started.

Section 6 of the Act (45 U.S. C. A. § 56) provides that

‘‘No action shall be maintained under this chapter un-

less commenced within three years from the day the

cause of action accrued.’’

It is submitted that the District Court was correct in

dismissing these complaints on the ground that the require-

ment of Section 6 is more than a mere statute of limitations

pertaining to the remedy and that compliance with this re-

quirement is a condition precedent to the employee’s right

of action. As briefly stated by Mr. Justice Holmes in

Flynn v. N. Y.,N. H. dé H. R. R. Co., 283 U. 8. 53, 56 (1931) :

‘‘The running of the two years from the time when his

cause of action accrued extinguishes it as effectively

as a release, Engel v. Davenport, 271 U. S. 33, 38, and

the same consequence follows.’’

In Engel v. Davenport et al., 271 U. 8. 33, 38 (1926),

in referring to Section 6, the Court said:

‘‘This provision is one of substantive right, setting a

limit to the existence of the obligation which the Act

creates.’’

Neither fraud nor other circumstances which might toll

an ordinary statute of limitations is applicable. Bell v.

Wabash Ry. Co., 58 F. (2d) 569 (C. C. A. 8th 1932). Nor

6 Brief for Respondent

does the fact that the cases here cited deal with the two year

limitation imposed by Section 6 prior to the 1939 amend-

ment weaken in any way their authority for the principle

stated.

Thus lapse of time itself destroys any liability of the

employer, since commencement of an action within the three

year period prescribed by the act is a prerequisite to the

exercise of any rights under the act, and constitutes a limi-

tation of such rights. The Federal Employers’ Liability

Act established a new right in derogation of the common

law and thus created nothing which could extend in time

beyond the period of its own express limitation. As was

said by Chief Justice Waite in The Harrisburg, 119 U.S.

199, 214 (1886), when speaking of a state act granting a

right to bring actions for loss of life within one year

thereof:

‘*The statutes create a new legal liability, with a right

to a suit for its enforcement, provided the suit is

brought within twelve months, and not otherwise. The

time within which the suit must be brought operates as

a limitation of the liability itself as created, and not

of the remedy alone. It is a condition attached to the

right to sue at all.’’

It is therefore misleading and erroneous to say, as peti-

tioners do on pages 16 and 17 of their brief, that the execu-

tion of workmen’s compensation agreements under state

law ‘‘tolled’’ the statute of limitations. As above indi-

cated, the express limitation imposed by Section 6 cannot

be ‘‘tolled’’ even on account of fraud or other circumstances

which might toll an ordinary statute of limitations. Bell v.

Wabash Ry. Co., 58 F. (2d) 569 (C. C. A. 8th 1982), supra,

and compare Pollen v. Ford Instrument Co. Inc., 108 F.

(2d) 762, 763 (C. C. A. 2nd 1940) and U.S. ex rel. Nitkey v.

Dawes, 151 F. (2d) 639, 644 (C. C. A. 7th 1945), cert. den.

327 U. S. 788 (1945). Unless each action was ‘‘commenced

Brief for Respondent 7

within three years from the day the cause of action ac-

crued”’, any right given petitioners by the Federal Em-

ployers’ Liability Act to sue for the injuries now com-

plained of simply ceased to exist; and since both actions

now before the Court were brought more than three years

after the respective causes of action accrued, the District

Court could not properly have done otherwise than grant

respondent’s motions to dismiss.

Ii. The Voluntary Compensation Agreements Do Not

Suspend the Operation of Section 6.

The voluntary compensation agreements entered into

between the respective petitioners and respondent, even if

made in strict conformity with the applicable Pennsylvania

law, did not constitute the commencement of an action under

the Federal Employers’ Liability Act, or the commencement

of any action which might later be transformed into an

action under the Federal Employers’ Liability Act.

In their statement of Questions Presented, petitioners

have assumed that the agreements referred to in Conrad’s

affidavit and in Damiano’s sworn statement not only were

compensation agreements entered into under the Pennsyl-

vania Workmen’s Compensation Act but also were ap-

proved by the Pennsylvania Workmen’s Compensation

Board, and have so stated on page 16 of their brief. There

is nothing in the record, however, to show that either is true.

No copies of the agreements in question were ever produced

or otherwise incorporated in the record and there is nothing

to show any of the terms of the agreements or that the pay-

ments referred to were actually made under them. How-

ever, respondent is willing to accept, for the purposes of

this argument, petitioners’ assumption that the agreements

were entered into in strict accordance with the provisions

of the state workmen’s compensation law, that they were

approved by the Board and that the payments to the peti-

tioners were made thereunder. It is clear, however, that

SILLS PEI RY NIP Te POS

8 Brief for Respondent

the execution of such agreements could not possibly consti-

tute the commencement of actions under the Federal Em-

ployers’ Liability Act nor could they be ‘‘amended”’ in any

way so as to permit original complaints, based upon causes

of action under that act and filed after the statutory period

had run, to relate back to the dates when the agreements

were executed and make those the dates when the respective

actions were first commenced.

Petitioners seek to avoid the effect of Section 6 first

by invoking the aid of a number of cases which have held

that a plaintiff who had filed his complaint within the

statutory period either in a State Court or in a Federal

Court whose jurisdiction was based solely upon diversity of

citizenship, could amend, after that period had passed, to

plead employment in interstate commerce and thus bring

himself within the coverage of the federal act, and secondly

by extending the recent holding of this court in Herb v,.

Pitcairn, 325 U. S. 77 (1945), to apply to the facts of the

present case.

The cases cited by petitioners on this point are not con-

trolling here for two reasons. In the first place, each of

those cases was concerned with an amendment of an origi-

nal complaint which had been filed within the statutory pe-

riod in a court of jurisdiction competent to render a final

judgment in an action under the Federal Employers’ Lia-

bility Act, except the case of Herb. v. Pitcairn, 325 U. S.

77, which, under the state practice, could be and was trans-

ferred to such a court. In the cases at bar there is no sug-

gestion that the so-called compensation agreements might

be amended to state a cause of action against the railroad

under the federal act or under any other act. The com-

plaints here involved are not and do not purport to be

amendments. They are the means by which new actions

were commenced by new processes, on new causes of action,

in an entirely new forum, and well beyond the three-year

period permitted by the act.

Brief for Respondent 9

Secondly, the cases relied on by petitioners involved an

original complaint which charged the defendant with neg-

ligent action as the basis of liability, so that the subsequent

amendment asserting the same right of recovery under

federal instead of state law was considered to be a change

merely of form and not of substance, and therefore not the

introduction of a new cause of action. In the Kinney case,

cited on page 10 of petitioners’ brief, the New York Su-

preme Court put the basic reason for its ruling in the fol-

lowing words (162 N. Y. S. 42, 47):

‘In the case at bar the action was commenced con-

cededly within two years after it acerued. Action was,

therefore, brought on the basic cause of action for neg-

ligence, and the only cause of action that the plaintiff

ever had.’’? (Emphasis supplied.)

The other cases cited are essentially to the same effect. See

Seaboard Airline Railway v. Renn, 241 U. S. 290, 294 (1916).

The distinction between such cases and each of the

present ones is obvious when one considers the nature of

the Pennsylvania Workmen’s Compensation Act. The gen-

eral section covering acceptance of the act provides that,

where employee and employer agree to elective compensa-

tion, ‘‘compensation for personal injury to, or for the death 4

of such employe, by an accident, in the course of his em-

ployment, shall be paid in all cases by the employer, without

regard to negligence, according to’’ a schedule of values

fixed by the act. Laws of Pennsylvania, Act of June 2,

1915, P. L.'736, Art. III, Par. 301, as amended (77 Purdon’s

Statutes 431). (Emphasis supplied.) The execution and

filing of a voluntary compensation agreement between an

employee and an employer is an admission only that an

injury was sustained by the employee in the course of his

employment. The agreements in the present cases can

mean no more nor have any greater significance or effect.

The respondent here may have admitted obligations under

the Pennsylvania Workmen’s Compensation Act, but cer-

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tainly it cannot be said to have admitted any liability, or

even the existence of any claim for liability, based upon

negligence, since none was charged. In fact, that element

had been excluded by the provisions of the Pennsylvania

act.

The execution of a voluntary compensation agreement

under the provisions of the Workmen’s Compensation Act

of Pennsylvania cannot possibly constitute the commence-

ment of an action or suit of any kind, and most particularly

not one based upon the employer’s negligence, nor can such

an agreement be amended in any way by a later complaint

in another forum which states a cause of action only be-

cause of respondent’s alleged negligence. In the present

cases the respondent was never put upon notice that it was

charged with negligent conduct, so that it might have had

a reasonable opportunity to investigate the facts before

more than three years had elapsed, and the general state-

ments, made on page 18 of petitioners’ brief, with refer-

ence to investigations made of accidents, not only have no

support in the record but, in respect of compensation cases,

are absolutely untrue.

In New York Central R. R. v. Kinney, relied upon by

petitioners, it is apparent from the portion of the opinion

quoted on page 17 of their brief that the Court felt that

Section 6 was inapplicable because (260 U. S. 340, 346):

‘defendant has had notice from the beginning that the

plaintiff sets up and is trying to enforce a claim against

it because of specified conduct, .. .’’ (Emphasis sup-

plied.)

Also on page 17 of the petitioners’ brief appears a

serious misstatement, which, however, indicates the funda-

mental misconception which is the basis of petitioners’ ar-

gument. It is there stated that in the Kinney case and in

the two cases now before the Court, ‘‘the original theory

of his suit was the same.’’ In the Kinney case, both the

original and the final theory was negligent conduct on the

part of the defendant. In the present cases, the original

10 Brief for Respondent

Brief for Respondent 11

theory was not negligent conduct on the part of the re-

spondent, but merely an accident in the course of employ-

ment without regard to petitioner’s negligence. In other

words, ‘‘specified conduct’’ was not involved. The present

theory, however, is negligent conduct of the respondent

and no negligence on the part of the petitioners. State law

was not a ‘‘theory of the suit’’ in either case. State law

merely provided the remedy, which was entirely adequate

if properly invoked. Thus the petitioners’ argument com-

pletely overlooks the distinction between the railroad com-

pany’s liability for negligence under the Federal Em-

ployers’ Liability Act and the absolute liability under

Workmen’s Compensation Acts, which was recently noticed

by this Court in the case of Myers v. Reading Co., 67 8. Ct.

1334,—U. S.—(1947).

In Tiller v. Atlantic Coastline Railroad Co., also re-

lied on by petitioners, the Court found no reason for

applying a statute of limitations for the purpose of barring

a proposed amendment, where the defendant had ‘‘had

notice from the beginning that petitioner was trying to

enforce a claim against it because of events leading up to’”’

the death of plaintiff’s decedent. 323 U. S. 574, 581. (Em-

phasis supplied.) In the present cases, the compensation

agreements gave respondent no warning or notice what-

soever that it would be subsequently charged with liability

for negligent conduct. Nor could they, by any stretch of

the imagination, be considered as commencing a proceeding

in a forum competent to entertain and adjudicate a claim

under the Federal Employers’ Liability Act.

It is, moreover, idle for petitioners to assert that it is

a mere fortuitous circumstance that a different state forum

was provided for Kinney than Pennsylvania provided for

petitioners, or that they did as much by merely signing a

voluntary compensation agreement as Kinney did by bring-

ing a suit in a court of general jurisdiction. Kinney was

seeking to collect as much as a jury would give him in an

action based on a claim of negligent conduct. The peti-

be

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12 Brief for Respondent

tioners made no assertion of negligence, nor did they allege

any fault on the part of respondent, and were seeking

merely the compensation allowed them by the state act.

Actually, they did not even initiate a proceeding before the

Workmen’s Compensation Board but, under the assumed

facts, merely entered into voluntary agreements as author-

ized by the Workmen’s Compensation Act to avoid the

necessity of filing a claim petition or otherwise initiating

proceedings under that act. It would have been no differ-

ent, however, if they had filed petitions in adverse proceed-

ings under the State Compensation Act, since, as admitted

by petitioners on page 6 of their brief, there is no way in

which a proceeding commenced in Pennsylvania under the

Workmen’s Compensation Act can be transferred for any

purpose to any other court. ;

Herb v. Pitcairn, 325 U. S. 77 (1945), is likewise not

controlling here. This is apparent from the language of

the Court at page 78.

‘*. . . An action is ‘commenced’ for these purposes as

a matter.of federal law when instituted by service of

process issued out of a state court, even if one which

itself is unable to proceed to judgment, if the state

law or practice directs or permits the transfer through

change of venue or otherwise to a court which does

have jurisdiction to hear, try and otherwise determine

that cause. Whether the action would be barred if

state law made new or supplemental process necessary

is a question not involved here and not decided. . . .”’

In the present cases, there has never been any process

of any kind, but merely agreements for compensation en-

tered into without any proceedings at all. However,

petitioners would be in no better position if they had insti-

tuted proceedings under the State Compensation Act and

their right to compensation had been resisted by respond-

ent. If, after the three year period had expired, the peti-

tioners had decided, as they did here, to claim a right to

recover under the Federal Employers’ Liability Act be-

s_"

Brief for Respondent 13

cause of the respondent’s negligence and had applied to

the State Compensation Board to transfer the proceedings

to a state or a federal court, the State Board would have

had no power to do so. Here there was not even a pretense

of a transfer, but the initiation of an entirely new suit in

the federal court without reference to the prior compensa-

tion agreements, and also without reference to any prior

proceedings before the Compensation Board, because there

were none. If there had been such proceedings, they could

no more have been transferred te the District Court and

been metamorphosed into a suit under the Federal Em-

pioyers’ Liability Act than could a proceeding of any kind

in the District Court have been transferred to the State

Compensation Board and become there a proceeding under

the State Compensation Act, whatever it may have been

called when commenced in the District Court.

It is not true, as stated on pages 9 and 20 of petitioners’

brief, that proceedings ‘‘in any tribunal’’ may be consid-

ered the commencement of an action under which a claim

under the Federal Employers’ Liability Act may be as-

serted. In Pennsylvania, an action commenced before a

magistrate or a justice of the peace cannot be transferred

to another competent tribunal, if the magistrate or justice

of the peace is found not to have jurisdiction. See Deihm

v. Snell, 119 Pa. 316, 13 Atl. 283 (1888), and Birkhead v.

Ward, 35 Pa. Super. Ct. 235 (1908). Similarly, the State

Compensation Board could not entertain a proceeding

based on any ground not furnished by the State Compensa-

tion Act, nor could it transfer any such action to any other

tribunal. As in the federal courts, a suit of which the trib-

unal has no jurisdiction must be dimsissed, egler v. Faulk-

ner, 127 U. S. 482 (1888), in the absence of specific statu-

tory authority for its transfer to another forum. There is

therefore no foundation whatever for the petitioners’ ar-

gument that the mere execution of a compensation agree-

ment, in accordance with the provisions of the state act,

gave the petitioners the right to ignore the three year lim-

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14 Brief for Respondent

itation in the Federal Employers’ Liability Act, and bring a

new suit in the federal court after that period had expired.

On page 16 of their brief, petitioners seem to argue

that the one year period of limitation under the state com-

pensation act may in some fashion be incorporated in the

Federal Employers’ Liability Act, so as to permit a suit

under the latter act within one year after the payment of

compensation under the state act, no matter how many

years may have elapsed since the accrual of the cause of

action. It is believed that such an argument requires no

answer,

Apparently in order to make their cases appear as if

there had been adverse proceedings initiated under the

state compensation act, petitioners devote several pages of

their brief to an attempt to show that the appellate courts

of Pennsylvania did not mean what they said in Gairt v.

Curry Coal Min. Co., 272 Pa. 494, 116 Atl. 382 (1922), and

in Virtue v. J. Lee Plumber, Inc., 111 Pa. Super. Ct. 476,

170 Atl. 443 (1934), to the effect that workmen’s compensa-

tion proceedings are not litigation. Whether they are or

not, they clearly are not such litigation as can be trans-

formed into a suit in the federal court under the Federal

Employers’ Liability Act, even if such a course had been

attempted by the petitioners instead of that, which they

actually followed, of ignoring all that had gone before and

commencing an entirely new action in the federal court.

III. Section 5 of the Federal Employers’ Liability Act Has

No Application to the Present Case.

Section 5 of the Federal Employers’ Liability Act pro-

vides (45 U. S. C. A. 55):

‘*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.’’ .

SEER PP ERE a TURF IARI TI PIRI IEY rica

7

Brief for Respondent 15

The Section has no application in the present case even

if it be assumed, as petitioners have suggested, that the re-

spondent entered into the agreements with intent to avoid

its obligations under the Federal statute. The respondent

is not relying upon the compensation agreements as a bar

to petitioners’ actions, The respondent contends that the

petitioners cannot maintain these actions because they were

not commenced within three years from the day the causes

of action accrued. It is the petitioners, and not the re-

spondent, who have brought the agreements into the case

by arguing that the agreements should be regarded as if

they in effect commenced this action. In this respect, these

cases are different from Duncan v. Thompson, 315 U. 8. 1,

cited by petitioners. In that case the defendant railroad

relied upon the agreement as a bar to an action for personal

injuries.

As the Cireuit Court of Appeals pointed out, 161 F.

(2d) 534, 537, if it should be assumed that the provisions

of Section 5 are applicable to the compensation agreements,

the only possible consequence would be to make the agree-

ments void. Section 5 does not purport to limit or to

qualify in any way the force or effect of Section 6. Section

5, therefore, cannot revive petitioners’ alleged rights of

action under the Federal Employers’ Liability Act. Those

rights have long since been extinguished because of the

failure of petitioners to bring their actions within three

years of the date on which the alleged cause of action ac-

erued. The fallacy of the petitioners’ arguments with re-

spect to Section 5 appears from the fact that compensation

agreements do not purport to affect in any way the peti-

tioners’ rights under the Federal Employers’ Liability Act.

Without in any way violating the compensation agreements,

petitioners could at any time within the three year period

have brought their actions under the Federal statute.

There was nothing in the compensation agreements which

enabled the respondent to exempt itself from liability under

the Federal statute. Respondent’s liability under that

16 Brief for Respondent

statute remained unaffected until it expired three years

after the alleged causes of action had accrued.

The allegations of the pleadings do not support the

arguments with respect to fraud that are made in the peti-

tioners’ brief. In his complaint, petitioner Conrad did not

allege that he had been induced to enter into the compensa-

tion agreement by fraud and, accordingly, the issue of fraud

cannot be raised in that case. In his complaint, petitioner

Damiano alleged that he had been induced to enter into the

agreement by the defendant ‘‘either fraudulently or by a

mutual mistake of fact.’? Apart from the question of the

technical sufficiency of this form of pleading, the fact that

the allegation is made in the alternative suggests that the

emphasis now given to the allegation of fraud is an after-

thought. Even if pleading in the alternative form is per-

missible, the general allegation of fraud, unsupported by

any specific allegations to give it content, is not adequate

to support the arguments now made in the petitioners’ brief.

Petitioners and their present counsel are fully aware

that in 1941, when these compensation agreements were vol-

untarily executed, not only the respondent, but petitioners,

their union advisors and attorneys were uncertain whether

employment such as that in which petitioners were engaged

would be held to be interstate in character, so as to afford

petitioners the benefit of the Federal Employers’ Liability

Act.

Furthermore, even had the respondent suspected or

known that petitioners were entitled to sue under the Fed-

eral act, it was under no duty to give them legal advice,

nor can its failure to impart any knowledge or opinion

that it may have had, excuse petitioners’ failure to comply

with the specific requirement of Section 6 of the act. See

Bell v. Wabash Ry. Co., 58 F. (2d) 569, supra; Wichita

Falls and So. R. R. Co. v. Durham, 132 Tex. 143, 120 S. W.

2d 803 (Tex. 1938).

Brief for Respondent 17

Conclusion.

It is respectfully submitted, therefore, that the peti-

tions for certiorari should be denied.

Respectfully submitted,

Pup Price,

Hvueu B. Cox,

Joun R. Watt,

Attorneys for Respondent.