Scarborough v. Atlantic Coast Line R. Co., 6260.

• Decision Date: 09 August 1951
• Docket Number: No. 6260.,6260.
• Citation: 190 F.2d 935
• Parties: SCARBOROUGH v. ATLANTIC COAST LINE R. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

190 F.2d 935 (1951)

SCARBOROUGH v. ATLANTIC COAST LINE R. CO.

No. 6260.

United States Court of Appeals Fourth Circuit.

Argued June 22, 1951.

Decided August 9, 1951.

George E. Allen, Richmond, Va., (Allen, Allen, Allen & Allen, L. Cutler May and May, Simpkins, Young & Rudd, all of Richmond, Va., on brief), for appellant.

John S. Davenport, III, Richmond, Va., (J. M. Townsend, Petersburg, Va., Howard C. Vick, and Denny, Valentine & Davenport, all of Richmond, Va., on brief), for appellee.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

This case is before us for the second time. At the first trial the District Court sustained defendant's motion to dismiss under the applicable statute of limitations. Upon appeal, we held that the statute of limitations could be tolled by the misrepresentations made by the Claims Agent of defendant, who informed plaintiff and his father that, under the statute of limitations, plaintiff, an infant, could bring suit at any time within three years after attaining his majority. We, accordingly, reversed the judgment of the District Court and remanded the case for a new trial. 4 Cir., 178 F.2d 253, 15 A.L.R.2d 491, certiorari denied 339 U.S. 919, 70 S.Ct. 621, 94 L.Ed. 1343. Plaintiff's claim is based on the Federal Employer's Liability Act.

At the second trial, the case went to the jury on both the issue of the tolling of the statute of limitations and the merits of plaintiff's claim.

The plaintiff moved for a directed verdict on the issue of the statute of limitations upon the ground that the evidence showed as a matter of law, that the defendant, through its Claims Agent, Smith, an attorney at law, represented to the plaintiff and his father time and again during the course of his investigation of the case that the plaintiff had three years after reaching twenty-one years old within which to bring his suit; that the plaintiff relied upon his statement and, for this reason, failed to bring his suit within the three year limitation prescribed by the statute, and that such a misrepresentation, relied upon to the injury of the plaintiff, constituted constructive or legal fraud, if not actual fraud, and estopped the defendant from pleading the statute of limitations, or in relying upon it in any way as a defense of the case. This motion was denied by the District Judge. Late in the afternoon, at the conclusion of the evidence, the Court gave a comprehensive charge to the jury. In a short time, the jury returned to the court room, whereupon the foreman asked if it would be necessary for all the jurors to agree and suggested an adjournment until the next morning. The Court stated: "Your verdict must be unanimous;" but agreed to the suggested adjournment.

The next morning, counsel for defendant suggested the submission to the jury of three special issues. Over objection of plaintiff's counsel, these issues were submitted to the jury in the following language:

"In answer to the inquiry made to the Court by the foreman of the jury as to whether the verdict of the jury must be unanimous and in lieu of certain other questions shown by the record, and in order to simplify the matter for the jury, the Court at this time propounds to the jury the following issues:

"Issue No. 1. Did, Edwin C. Smith, the defendant's Claim Agent, represent to the plaintiff or his father that the railroad company recognized liability for the injury to the plaintiff and that the plaintiff had until three years after he became twenty-one years old to bring his suit?

"You will find a blank space at the conclusion of the inquiry for your answer.

"Issue No. 2. If your answers to issue No. 1 is yes, did said Smith make such representations with the deliberate intention of defrauding the plaintiff of his rights or with reckless disregard of the plaintiff's rights intending that such representation should be relied upon by the plaintiff.

"You will find a blank space at the conclusion of the inquiry for your answer.

"Issue No. 3. If your answers to issues No. 1 and No. 2 are yes in both instances, did the plaintiff in fact rely upon such representations of Smith when he failed to bring his suit until March, 1949, and if he did rely thereon, did he and his father act as ordinary prudent persons in so doing.

"There is a blank space for your answer to that issue."

After submitting the issues to the jury, the Court stated:

"Now your answers to these various issues must be unanimous. The answers should be either yes or no unless you are unable to agree. Unless you agree upon the answers to these various issues, you should report to the Court. I suggest that in that event, at the place for the answer you should insert language to the effect you are unable to agree. It is my suggestion that you take this paper with you and at this time determine your answers to these questions, if you are able to agree upon the issues.

"After you do this, then return to the Court and I will have some further suggestions to make at that time."

The jury first reported that they could not agree on the first and second issues. No response was made to the third question — one of the jurors said: "Some questions can answer partly, can't answer the other part." After an indication from the foreman that it might be possible for the jury to agree, upon further consideration, the jurors were directed to return to their room and continue their deliberations. The jury subsequently returned and answered issue No. 1, "yes"; issue No. 2, "no"; issue No. 3, "no". The jury then retired and counsel for the defendant asked the court to instruct the jury to bring in a general verdict for the defendant. Counsel for the plaintiff moved for judgment n. o. v. on the question of the right of the railroad company to plead the statute of limitations.

The Court granted the motion of defendant's counsel and denied the motion of plaintiff's counsel. Thereupon, under the directions of the Court, the jury returned a verdict for the defendant. Later, plaintiff moved the Court to set aside the judgment entered for defendant, to enter judgment in favor of plaintiff on the issue of the statute of limitations and to award a new trial on all other issues in the case. This motion was denied, the action was dismissed and plaintiff has appealed.

We cannot agree with plaintiff's contention that this case is controlled under the doctrine of Erie Railroad v. Tomkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, by the law of Virginia. The applicable statute of limitations is an integral part of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., upon which plaintiff's case is based. We are therefore concerned with the interpretation and application of a federal statute. Accordingly, the federal law, not the State law, is determinative.

It is our considered view that there was error in the manner in which this case was submitted to the jury so that the judgment below must be remanded for a new trial.

The submission of questions, or special issues, to the jury rests in the sound discretion of the trial judge. See Rule 49, Federal Rules of Civil Procedure, 28 U.S.C.A. It is rather unusual, though, to submit such questions to the jury after the case has been argued and has once gone to the jury under a broad and comprehensive charge. Certainly it is desirable that questions should be simple and clear, with one single issue in each question. Double questions, or questions in the alternative, should be avoided. We now consider the questions, or issues, submitted to the jury in this case, in view of these principles.

Issue No. 1 posed two questions to the jury. First, did Smith, the Claim Agent of defendant, "represent to the plaintiff or his father that the railroad company recognized liability for the injury to the plaintiff?" Second, did Smith represent to the plaintiff or his father "that the plaintiff had until three years after he became twenty-one years old to bring his suit?" These two issues might well have been put in separate questions. The question of recognition of liability by the railroad, though it has evidential value, is not vital. The representation as to the statute of limitations is more than vital; it is the very heart of this case.

Issue No. 2 (in case the jury's answer to No. 1 was "yes", which it was) really put three questions to the jury: (1) Did Smith make the representations "with the deliberate intention of defrauding the plaintiff of his rights?" (2) Did Smith make the representations "with reckless disregard of the plaintiff's rights?" (3) Did Smith make the representations "intending that such representation should be relied upon by the plaintiff?" The jury answered Issue No. 2, "no". Again, we think separate questions would have been more appropriate.

We believe it would have been proper, in a separate question, to submit to the jury whether Smith had a deliberate intention here of defrauding the plaintiff of his rights. Had the question been thus submitted to the jury and answered in the affirmative, and had this answer found substantial support in the evidence, a very strong (possibly the strongest) case would have been made out for the plaintiff. We feel, however, that it was not essential for plaintiff to prove deliberate fraud, nor do we think it vital here which of two labels be applied to the conduct of Smith — "actual fraud" or "constructive fraud."

Though the phrase "reckless disregard" of the plaintiff's rights has often been used by both text-writers and judges in this connection, we think some milder phrase, such as "utter disregard" would probably be more in keeping with the spirit of modern law.

We do not think the intention of Smith, the Claim Agent, should be judged subjectively from the standpoint of Smith. It is, of course, sufficient if Smith actually intended that plaintiff should rely upon Smith's statement as to the statute of limitations. However, whatever may have been in the...