La Bonte v. New York, N. H. & H. R. Co.

• Decision Date: 03 June 1960
• Citation: 341 Mass. 127,167 N.E.2d 629
• Parties: Alme LA BONTE v. NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 629

167 N.E.2d 629

341 Mass. 127

Alme LA BONTE v. NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 7, 1960.

Decided June 3, 1960.

Roger J. Donahue, Boston, for plaintiff.

Noel W. Deering, Boston (David W. Walsh, Boston, with him), for defendant.

Before WILKINS, C. J., and SPALDING, COUNIHAN, WHITTEMORE and CUTTER, JJ.

SPALDING, Justice.

In this action of tort under the Federal Employers' Liability Act (FELA), 45 U.S.C. (1946) § 51 et seq. [45 U.S.C.A. § 51 et seq.], the plaintiff had a verdict. The questions for decision arise out of the defendant's exception to the denial of its motion for a directed verdict.

We summarize the evidence as follows. On May 9, 1952, the plaintiff, a 'maintenance man,' was operating a truck for the defendant at Saundersville on the Providence-Worcester line. ¹ His duties on that day included the loading of cross ties onto the truck with the help of two fellow employees. The plaintiff worked from the truck and the coworkers from the ground. The ties were about 'eight inches square and eight feet long' and weighed between two and three hundred pounds. The helpers would place one end of a tie on the tailboard of the truck and the plaintiff 'would look around to see where * * * [he] could place the tie,' and, on his signal, the helpers would heave the tie into the truck; the plaintiff, by grabbing the end of the tie coming toward him with a pair of tongs, would guide it to a place on the floor of the truck.

On one occasion, no signal to heave having been given by the plaintiff, the helpers heaved a tie onto the truck before the plaintiff 'had a chance to grab it and pull it in,' and it struck the plaintiff on the shin of his right leg. The shin appeared to be bruised and cut a little, but after self administered first aid the plaintiff resumed working for the remainder of the day. Although the cut healed within a few days, the injured area remained black and blue and swollen. As time went on his shin became increasingly painful and after July 17, 1953, the pain was such that the plaintiff could not do any work, and he consulted his physician. In August, 1953, an operation was performed on his shin but thereafter his leg continued to swell, and in February, 1954, it became necessary to amputate it above the knee.

In June, 1954, the plaintiff called at the defendant's office in Providence and talked to one Murtaugh, the defendant's district claim manager. As to what was said at this conversation the evidence is in sharp conflict. According to the plaintiff's version he told Murtaugh that he desired to make a claim for the injury to his right leg. Murtaugh said, 'Your best bet is with the retirement [pension].' Murtaugh further told the plaintiff 'not to worry about the injury * * * that the railroad will take care of it.'

About July 30, 1954, the plaintiff consulted a lawyer (Mr. Harry Smith) and 'asked him to look into making a claim to the railroad.' In February of 1955 Murtaugh called on the plaintiff at his home. Here again the evidence was conflicting, but according to the plaintiff's version the following occurred: Murtaugh asked the plaintiff how he was getting along and the plaintiff told him that he had consulted a lawyer. Murtaugh told the plaintiff that he 'shouldn't have done that; they were going to take care of * * * [the claim] themselves.' The plaintiff then asked Murtaugh when he would hear from him and Murtaugh said that 'in a case as serious as that it would take a little while for the railroad to settle things * * * he would have to look into it again, he would be around the area again in June * * * [and] would drop in and let us know.' The plaintiff never saw Murtaugh thereafter. Shortly after this conversation with Murtaugh the plaintiff told Mr. Smith, his attorney, of Murtaugh's visit; the plaintiff never communicated again with his attorney. The present action was commenced by a writ dated April 8, 1957, five years, lacking one month, after the plaintiff's injury.

The defendant argues that it was entitled to a directed verdict in its favor because (1) the plaintiff's action not seasonably commenced, and (2) the evidence would not warrant a finding that it was negligent.

1. The Federal Employers' Liability Act (45 U.S.C. [1946] § 56 [45 U.S.C.A. § 56]) provides, 'No action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued.' The plaintiff's cause of action accrued on May 9, 1952, the date of the injury, and he did not institute proceedings within this limitation. The plaintiff argues, however, that the defendant's conduct was such that it is estopped to invoke the limitation. Whatever the rule may have been formerly, it has recently been settled that there may be circumstances in which a defendant is 'estopped' to set up the statute. Glus v. Brooklyn E. Dist. Terminal, 359 U.S. 231, 79 S.Ct. 760, 3 L.Ed.2d 770. The Glus case, however, did not undertake to lay down any principles of law with respect to estoppel.

It has been held that the validity of a release in FELA cases is to be determined by Federal law. Dice v. Akron, C. & Y. R. R., 342 U.S. 359, 361-364, 72 S.Ct. 312, 96 L.Ed. 398; Rankin v. New York, N. H. & H. R. R., Mass., 154 N.E.2d 613. The reasoning in the Dice case is no less applicable to a case involving the avoidance of the statute of limitations on grounds of estoppel. Accordingly, we are of opinion that this issue is to be controlled by Federal law. See Scarborough v. Atlantic Coast Line R. R., 4 Cir., 202 F.2d 84, 87; Osbourne v. United States, 2 Cir., 164 F.2d 767, 768. There appear to be no decisions of the Supreme Court that shed any light on estoppel in FELA cases, and not very much law has thus far been developed by the lower Federal courts. See Scarborough v. Atlantic Coast Line R. R., 4 Cir., 190 F.2d 935; Scarborough v. Atlantic Coast Line R. R., 4 Cir., 202 F.2d 84. Since the Supreme Court has not spoken on this subject, we are obliged to decide the question as we think that court would decide it. In so doing we shall give respectful consideration to such lower Federal court decisions as seem persuasive. See Lapp Insulator Co., Inc. v. Boston & Maine R. R., 330 Mass. 205, 209, 112 N.E.2d 359. And we shall also be guided by our own decisions, for we have no reason to believe that on this subject, involving, as it does, fundamental principles of fair dealing and good conscience, our law would be substantially different. ²

Basically the ground relied on by the plaintiff to avoid the statute of limitations, whether described as waiver of the defence or estoppel (see concurring opinion of Magruder, J., in Bergeron v. Mansour, 1 Cir., 152 F.2d 27, 32 et seq.), is that 'the statements of the defendant lulled the plaintiff into the false belief that it was not necessary for him to commence action within the statutory period of limitations * * *, that the plaintiff was induced by these statements to refrain from bringing suit, as otherwise he would have done, and was thereby harmed, and that the defendant 'knew or had reasonable cause to know that such consequence might follow.'' Ford v. Rogovin, 289 Mass. 549, 552, 194 N.E. 719, 720. It was said in McLearn v. Hill, 276 Mass. 519, at page 527, 177 N.E. 617, at...