Gulf, Colorado & Santa Fe Railway Company v. McClelland

Decision Date11 February 1966
Docket NumberNo. 22329.,22329.
PartiesGULF, COLORADO & SANTA FE RAILWAY COMPANY, Appellant, v. Robert McCLELLAND, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Chilton O'Brien, Beaumont, Tex., McLeod, Alexander, Powel & Apffel, Galveston, Tex., of counsel, for appellant.

Joe Bob Golden, Joe H. Tonahill, Jasper, Tex., for appellee.

Before TUTTLE, Chief Judge, COLEMAN, Circuit Judge, and HUNTER, District Judge.

TUTTLE, Chief Judge:

This appeal from a verdict and judgment in favor of this former railroad employee for injuries by which he suffered from contact dermatitis resulting from his exposure to hot engines and the surrounding conditions, is based primarily upon the failure of the trial court to submit to the jury the issue upon which the trial court could determine when the cause of action "accrued." The suit was filed under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.

Title 45 Section 56, U.S.C.A., states: "No action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued." It is clear that compliance with the statute of limitations provided by the FELA is a condition precedent to an injured employee's recovery under the Act, Carpenter v. Erie R. Co., 3 Cir., 132 F.2d 362; American R. Co. of Porto Rico v. Coronas, 1 Cir., 230 F. 545, L.R.A.1916E, 1095. This construction seems implicit in Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282.

The evidence introduced at the trial in this case included testimony which, if believed, would support the proposition that McClelland's dermatitis was manifested prior to February 29, 1961, the beginning of the statutory period of three years. Not only did two of his fellow employees relate that McClelland had made continued complaints about his skin condition over the last eight years, but one doctor's written records show that McClelland sought medical treatment for his condition of dermatitis on October 9, 1959 and another doctor testified that he had made tests and treated McClelland for a skin condition as early as 1958. The jury could well have believed that this skin condition was the same contact dermatitis for which he sought recovery in this action.

The United States Supreme Court dealt with the difficulties of fixing the "day" upon which a cause of action "accrued" when his cause of action is one that arises from a long recurring act or condition of employment without any appreciable or significant single occurrence bringing it to a head in Urie v. Thompson, supra. In that case, the court formulated the following rule to be applied in such a situation:

"It follows that no specific date of contact with the substance can be charged with being the date of injury, inasmuch as the injurious consequences of the exposure are the product of a period of time rather than a point of time; consequently the afflicted employee can be held to be `injured\' only when the accumulated effects of the deleterious substance manifested themselves * * *." Citing Associated Indemnity Corp. v. Industrial Accident Commission, 124 Cal.App. 378, 381, 12 P.2d 1075. Urie v. Thompson, 337 U.S. at 170, 69 S.Ct. at 1025.

In a similar case, Fowkes v. Pennsylvania R. R. Co., 3 Cir., 264 F.2d 397, the Court of Appeals for the Third Circuit concluded that it was appropriate for the trial court in such a case to submit the following question to...

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11 cases
  • Caudill v. CSX Transp., Inc.
    • United States
    • West Virginia Supreme Court
    • September 27, 2013
    ...(compliance with 45 U.S.C. § 56 condition precedent to employee's recovery in FELA action) (citing Gulf, Colorado & Santa Fe R.R. Co. v. McClelland, 355 F.2d 196, 197 (5th Cir.1966)). When, as in the case sub judice, a specific date of injury cannot be determined because an injury results f......
  • Illinois Cent. R. Co. v. McDaniel, No. 2005-CA-00389-SCT.
    • United States
    • Mississippi Supreme Court
    • August 31, 2006
    ...in a FELA action." Emmons v. Southern Pacific Transp. Co., 701 F.2d 1112, 1117 (5th Cir.1983) (citing Gulf, Colorado & Santa Fe R.R. Co. v. McClelland, 355 F.2d 196, 197 (5th Cir.1966)). "The burden is therefore on the claimant to allege and to prove that his cause of action was commenced w......
  • Whitman v. CSX Transp., Inc.
    • United States
    • U.S. District Court — Western District of Michigan
    • June 2, 1995
    ...§ 56 is a condition precedent to an injured employee's recovery in a FELA action." Id. at 1117 (citing Gulf, Colorado & Santa Fe R.R. Co. v. McClelland, 355 F.2d 196, 197 (5th Cir.1966)). "Failure to timely bring suit not only bars the claimant's remedy, but it also destroys the employer's ......
  • Illinois Central Railroad Company v. McDaniel, No. 2005-CA-00389-SCT (Miss. 6/15/2006)
    • United States
    • Mississippi Supreme Court
    • June 15, 2006
    ...in a FELA action." Emmons v. Southern Pacific Transp. Co., 701 F.2d 1112, 1117 (5th Cir. 1983) (citing Gulf, Colorado & Santa Fe R.R. Co. v. McClelland, 355 F.2d 196, 197 (5th Cir. 1966)). "The burden is therefore on the claimant to allege and to prove that his cause of action was commenced......
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