Emmons v. Southern Pacific Transp. Co., No. 80-4012

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore GOLDBERG, WILLIAMS, and GARWOOD; GARWOOD
Citation701 F.2d 1112
PartiesDanny P. EMMONS, Plaintiff-Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant-Appellee.
Docket NumberNo. 80-4012
Decision Date07 April 1983

Page 1112

701 F.2d 1112
Danny P. EMMONS, Plaintiff-Appellant,
v.
SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant-Appellee.
No. 80-4012.
United States Court of Appeals,
Fifth Circuit.
April 7, 1983.

Page 1115

Gothard J. Reck, Warren A. Goldstein, New Orleans, La., for plaintiff-appellant.

Warren M. Schultz, Jr., New Orleans, La., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GOLDBERG, WILLIAMS, and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

This is an appeal from a judgment dismissing appellant's cause of action brought under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. Sec. 51 et seq., because it was barred by that act's three-year statute of limitations, 45 U.S.C. Sec. 56. The primary question is whether appellant knew that his injury was work related more than three years before he filed suit against appellee. We hold that there is sufficient evidence to support the trial court's finding that appellant's cause of action was barred by limitations. The trial court's judgment is therefore affirmed.

I.

FACTS

Appellant Danny Pat Emmons ("Emmons") contracted polio when he was four years old. At age thirteen, corrective surgery was completed on both his ankles, and his left ankle was fused. The polio and the corrective surgery left Emmons with a slight, but noticeable, limp. Emmons was, however, thereafter able to lead a normal, active life.

In the spring of 1972, Emmons applied for a clerical position with appellee Southern Pacific Transportation Company ("Southern Pacific"). 1 Emmons was given a preemployment physical by Southern Pacific's physician, Dr. Samuel Logan. Emmons testified at trial that Dr. Logan noticed the surgical scars on his ankles and that he told Dr. Logan that he had had polio. Dr. Logan's report, however, showed that Emmons had never suffered any severe illnesses, sustained any injuries, or undergone any operations. Dr. Logan approved Emmons for work as an extra board clerk.

Emmons began working for Southern Pacific on May 5, 1972. After working as an extra board clerk for about seven months, Emmons applied for a better paying job with Southern Pacific as a switchman-brakeman. Because Emmons had been with Southern Pacific less than one year, he was not given another physical.

Emmons's application was approved by Southern Pacific, and he began working as a brakeman on February 19, 1973. In the latter part of 1974, Emmons began having problems with his right ankle. This ankle problem became progressively worse, and Emmons began to miss work with some degree of regularity, especially after December 1975. Emmons, however, did not say anything about his ankle problem to anyone in a supervisory capacity with Southern Pacific for fear of losing his job, and nothing in Southern Pacific's records showed that Emmons was having a problem with his ankle. 2

On August 12, 1977, Southern Pacific summoned Emmons before an employment committee which met to determine the cause of Emmons's excessive absenteeism. At that hearing, Emmons, for the first

Page 1116

time, told Southern Pacific's officials that his work as a brakeman was causing a problem with his right ankle. 3 Emmons, however, was fired for excessive absenteeism on August 24, 1977. On August 25, 1977, Emmons's physician, Dr. Kenneth Saer, told him that his ankle problem was work related.

II.

THE TRIAL

On November 1, 1978, Emmons filed suit against Southern Pacific, alleging, among other things, that Southern Pacific was negligent (1) in assigning him to a position for which he was physically unsuited, (2) in failing to require an additional physical examination before assigning him to work as a brakeman, and (3) in failing to require him to undergo periodic physical examinations. Southern Pacific answered, and it pleaded as a defense that Emmons's complaint failed to state a claim upon which relief could be granted.

The issue of limitations was not raised as an affirmative defense in Southern Pacific's answer, nor was it listed by Southern Pacific as an issue in the pretrial order. During the trial, however, Emmons testified that he knew in 1974, after a visit to one of Dr. Saer's associates, Dr. Ray Haddad, that his ankle problem was work related. At the close of all the evidence, Southern Pacific moved for a directed verdict on the ground that Emmons's cause of action was barred by limitations under 45 U.S.C. Sec. 56. The trial court reserved ruling on the motion, for the parties agreed to send the case to the jury, and if a verdict was returned for Emmons, then to submit the limitations issue to the trial court for adjudication. 4

On the issue of Southern Pacific's negligence, the trial court charged the jury as follows:

"The plaintiff contends that the railroad was negligent in allowing the plaintiff to work as a [brakeman] when it knew, should have known, that his prior polio condition would worsen and deteriorate as a result of his performance of required duties as a [brakeman].

"And the plaintiff further contends that the defendant was negligent in failing to have the plaintiff medically examined in connection with his application for the job of [brakeman].

"...

"Where a railroad has prior knowledge of or should have known or ascertained an employee's pre-existing medical condition, it may be responsible in damages if it negligently assigns an employee to a duty which aggravated such pre-existing condition.

"Also, where a railroad undertakes pre-employment medical examination of a job applicant, it has a duty to conduct such examinations with reasonable care, in order to determine the fitness of the applicant for the job sought."

The jury found that Southern Pacific was negligent; that its negligence aggravated Emmons's preexisting condition; and that

Page 1117

Emmons was 29.2 percent contributorily negligent. The jury awarded Emmons $100,000.

After receiving the jury's verdict, the trial court asked the parties to think about whether they would want to produce additional evidence on the limitations issue, and the court set a date for a conference. When the conference with the court was held several days later, Emmons's attorney declined the court's offer to receive additional evidence respecting the limitations issue. Instead, counsel for both parties agreed that the issue should be decided on the testimony produced at trial. 5 When Emmons's attorney filed his brief, however, he included, without verification, documents purporting to be copies of Dr. Haddad's notes of the 1974 examination of Emmons, which revealed that Emmons had seen Dr. Haddad for an ankle injury sustained while playing ball. Because Emmons's attorney had agreed that the limitations issue would be decided on the evidence produced at trial, the trial court refused to consider the purported copies of Dr. Haddad's notes.

The trial court held that Emmons's cause of action was barred by limitations. The court found that Southern Pacific's negligence was not continuing because it had no knowledge that Emmons's duties as a brakeman were aggravating his preexisting condition, and that Emmons's injury manifested itself before November 1, 1975.

III.

WAIVER OF LIMITATIONS

Emmons's first contention concerns the propriety of Southern Pacific's assertion of limitations to bar his cause of action. Emmons argues that the trial court erred in allowing Southern Pacific to raise the issue because it was not pleaded as an affirmative defense or listed as an issue by Southern Pacific in the pretrial order. We disagree.

The limitations issue was suggested on the face of Emmons's complaint. In paragraph VII, Emmons alleged that "[o]n or about February 9, 1973, plaintiff commenced his duties as a brakeman." In paragraph VIII, the complaint alleged that "approximately two years after commencing his duties as a brakeman, plaintiff began to experience difficulty and pain in his legs and ankles." Approximately two years after starting work as a brakeman would have been in the spring of 1975, and without the limitations period.

Southern Pacific, in its answer, admitted the allegations of paragraph VII, but denied the allegations of paragraph VIII insofar as they concerned when Emmons's injury began to manifest itself. The answer also alleged that the complaint failed to state a claim upon which relief could be granted.

In the pretrial order, the ultimate facts claimed by Emmons included the fact that "[a]pproximately two years after commencing his duties as a brakeman, plaintiff began to experience pain ...."

Compliance with 45 U.S.C. Sec. 56 is a condition precedent to an injured employee's recovery in a FELA action. Gulf, Colorado & Santa Fe Railroad Company 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 liability. Dixon v. Martin, 260 F.2d 809, 811 (5th Cir.1958).

"For if a statute of limitations is thus made a limitation upon the continued existence of the right, rather than a mere bar to suit upon it, it goes to the substance of the plaintiff's claim so that he must show himself to be within the statute in order to recover and the defendant, therefore, need not specially plead the defense under Civil Procedure Rule 8(c), ..." Goodwin v. Townsend, 197 F.2d 970, 971 (3d Cir.1952).

Page 1118

The burden is therefore on the claimant to allege and to prove that his cause of action was commenced within the three-year period. Carpenter v. Erie R. Co., 132 F.2d 362, 363 (3d Cir.1942), cert. denied, 318 U.S. 788, 63 S.Ct. 983, 87 L.Ed. 1155 (1943). In a FELA action, limitations is "nothing more than a negative defense, ... one which tends to disprove one or all of the elements of a complaint. An affirmative defense is properly concerned with the pleading of a matter not within the plaintiff's prima facie case, that is, pleading matter to avoid plaintiff's cause of...

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87 practice notes
  • Monarch v. Southern Pacific Transp. Co., No. A081178
    • United States
    • California Court of Appeals
    • March 25, 1999
    ...statute of limitations is a condition precedent for recovery in a FELA action. (Emmons v. Southern Pacific Transp. Co. (5th Cir.1983) 701 F.2d 1112, 1117; Frasure v. Union Pacific R. Co., supra, 782 F.Supp. at p. 479.) In cases of latent or progressive injuries, such as that suffered by app......
  • Ford Motor Co. v. Transport Indem. Co., Nos. 84-1735
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 30, 1986
    ...the ambit of Rule 8(c) since it is equivalent to an element of the cause of action. See Emmons v. Southern Pacific Transportation Co., 701 F.2d 1112, 1117-18 (5th Cir.1983). The nine month filing provision of the Uniform Bill of Straight Lading at issue emanates from 49 U.S.C. Sec. 11707(e)......
  • David L. Aldridge Co. v. Microsoft Corp., No. Civ.A. H-96-0198.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • February 5, 1998
    ...Inc., 100 F.3d 1173, 1180 (5th Cir. 1996). In this context truth is a negative defense. See Emmons v. Southern Pac. Transp. Co., 701 F.2d 1112, 1118 (5th Cir. 1983) (explaining that negative defenses are those tending to disprove at least one element of a plaintiff's cause of 1. Business Di......
  • U.S. v. Hitachi America, Ltd., Slip Op. 97-46.
    • United States
    • U.S. Court of International Trade
    • April 15, 1997
    ...and persuasion fall upon the plaintiff to show that its action is not time-barred. Emmons v. Southern Pacific Transportation Co., 701 F.2d 1112, 1118 (5th Cir.1983); Davidson v. Wilson, 973 F.2d 1391, 1402 n. 8 (8th Cir.1992); Anixter v. Home-Stake Production Co., 939 F.2d 1420, 1434 (10th ......
  • Request a trial to view additional results
87 cases
  • Monarch v. Southern Pacific Transp. Co., No. A081178
    • United States
    • California Court of Appeals
    • March 25, 1999
    ...statute of limitations is a condition precedent for recovery in a FELA action. (Emmons v. Southern Pacific Transp. Co. (5th Cir.1983) 701 F.2d 1112, 1117; Frasure v. Union Pacific R. Co., supra, 782 F.Supp. at p. 479.) In cases of latent or progressive injuries, such as that suffered by app......
  • Ford Motor Co. v. Transport Indem. Co., Nos. 84-1735
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 30, 1986
    ...the ambit of Rule 8(c) since it is equivalent to an element of the cause of action. See Emmons v. Southern Pacific Transportation Co., 701 F.2d 1112, 1117-18 (5th Cir.1983). The nine month filing provision of the Uniform Bill of Straight Lading at issue emanates from 49 U.S.C. Sec. 11707(e)......
  • David L. Aldridge Co. v. Microsoft Corp., No. Civ.A. H-96-0198.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • February 5, 1998
    ...Inc., 100 F.3d 1173, 1180 (5th Cir. 1996). In this context truth is a negative defense. See Emmons v. Southern Pac. Transp. Co., 701 F.2d 1112, 1118 (5th Cir. 1983) (explaining that negative defenses are those tending to disprove at least one element of a plaintiff's cause of 1. Business Di......
  • U.S. v. Hitachi America, Ltd., Slip Op. 97-46.
    • United States
    • U.S. Court of International Trade
    • April 15, 1997
    ...and persuasion fall upon the plaintiff to show that its action is not time-barred. Emmons v. Southern Pacific Transportation Co., 701 F.2d 1112, 1118 (5th Cir.1983); Davidson v. Wilson, 973 F.2d 1391, 1402 n. 8 (8th Cir.1992); Anixter v. Home-Stake Production Co., 939 F.2d 1420, 1434 (10th ......
  • Request a trial to view additional results

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