Louisville & Nashville Railroad Company v. Disspain

• Decision Date: 25 February 1960
• Docket Number: No. 13913.,13913.
• Citation: 275 F.2d 25
• Parties: LOUISVILLE & NASHVILLE RAILROAD COMPANY, Appellant, v. Leonard DISSPAIN, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

275 F.2d 25 (1960)

LOUISVILLE & NASHVILLE RAILROAD COMPANY, Appellant, v. Leonard DISSPAIN, Appellee.

No. 13913.

United States Court of Appeals Sixth Circuit.

February 25, 1960.

Taylor H. Cox, Knoxville, Tenn. (Williston M. Cox, Knoxville, Tenn., Alvin Y. Bell, Dayton, Tenn., on the brief), for appellant.

J. H. Doughty, Knoxville, Tenn. (Hodges, Doughty & Carson, Knoxville, Tenn., on the brief), for appellee.

Before MILLER and WEICK, Circuit Judges, and THORNTON, District Judge.

PER CURIAM.

The action in the District Court was one for damages for personal injuries. It was brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. and resulted in a verdict and judgment in favor of the plaintiff for $17,500.

In this appeal, the railroad claims that the District Court should have rendered judgment in its favor because (1) the action below was not commenced within three years from the date of the injury as required by the Act (45 U.S. C.A. § 56) and (2) the claim was settled by the payment of $1,200 and the execution of a release by appellee.

The accident happened on July 19, 1951, but suit was not commenced until November 11, 1957 — more than six years later.

Appellee's claim was that he had been misled by the statement of a doctor (to whom he had been sent by the railroad on April 25, 1952) to the effect that there was nothing wrong with him; that he should return to work; that he relied on this doctor's statement and returned to work and did not bring his action within the statutory period because he believed that there was nothing the matter with him; that he did not learn of the truth until November 10, 1954 when another physician informed him that he had a disintegrated intervertebral disc which required surgery.

The trial judge submitted the issue of fact to the jury under the following instructions:

"The Court charges you that if you find that the representations made to plaintiff by the doctor chosen by the defendant to examine the plaintiff, were in fact misrepresentations although unintentional on the part of the doctor, and plaintiff failed to institute suit within three years because of such misrepresentations, such misrepresentations were sufficient to toll, that is to stop, the three-year statute of limitations.

"The Court further charges you that if you find that the physician chosen by the defendant to examine the plaintiff misrepresented to the plaintiff the plaintiff\'s true condition and that the plaintiff relied upon such misrepresentation, this would suffice to toll the running of the three-year statute of limitations and plaintiff would not be barred by the application of the three-year statute of limitations provided for in the Federal Employers\' Liability Act."

No exception was taken to the instructions.

The railroad claims that the evidence was insufficient to warrant submission of this issue to the jury. It says that the doctor was not its...