Gauthier v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 07 February 1922
• Citation: 176 Wis. 245,186 N.W. 619
• Court: Wisconsin Supreme Court
• Parties: GAUTHIER v. ATCHISON, T. & S. F. RY. CO.

176 Wis. 245

186 N.W. 619

GAUTHIER

v.ATCHISON, T. & S. F. RY. CO.

Supreme Court of Wisconsin.

Feb. 7, 1922.

Appeal from Circuit Court, Milwaukee County; Oscar M. Fritz, Judge.

Action by Paul Gauthier against the Atchison, Topeka & Santa Fé Railway Company. From an order sustaining defendant's demurrer to the complaint, plaintiff apeals. Order affirmed.

This is an appeal by plaintiff from an order sustaining defendant's demurrer to a complaint setting up two causes of action for an injury received by plaintiff while engaged in interstate commerce in defendant's baggage room at San Diego, Cal. The alleged injury occurred March 2, 1916. This action was commenced November 5, 1920. Under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), the time within which an action of this nature may be brought is limited to two years. It appears that plaintiff filed a claim with the Industrial Accident Board of California, which claim was denied on October 31, 1916, because of want of jurisdiction, on the ground that plaintiff's remedy was solely under the act of Congress.

After setting out the circumstances relative to the injury, the complaint, in the first cause of action, alleged:

That defendant, through its claim agent, represented and stated to plaintiff “that the said defendant would pay to your plaintiff and settle with him for the injuries received, hereinbefore more particularly set forth, and that it would not be necessary to, and that your said plaintiff should not, commence any action under the said acts of Congress against said defendant, and that your plaintiff believed and relied on such statements and representations of the said defendant, so made, and for that reason failed and neglected to commence within two years from the time of receiving such injuries, any action under said acts of Congress to recover such damages, and that the said defendant, by reason of the statements and representations made to your plaintiff by its agents and servants, including the statements made by the said Miller, is estopped from pleading, and should not now be heard to plead and claim that your plaintiff's said cause of action is barred or lost by reason of his failure to commence an action for the recovery of such damages, within two years from the time of receiving the same.”

The complaint, in the second cause of action, set out the same material facts as above, and in addition alleged:

That defendant falsely and fraudulently represented and stated to plaintiff “that the said defendant would pay to your plaintiff and settle with him for the injuries received, hereinbefore more particularly set forth, and that it would not be necessary to, and that your said plaintiff should not, commence any action under the said acts of Congress against said defendant, and that your plaintiff believed and relied on such false and fraudulent statements and representations of the said defendant, so made, and for that reason failed and neglected to commence within two years from the time of receiving said injuries, an action under the said Acts of Congress to recover such damages. And that your plaintiff, by reason of the said false and fraudulent statements and misrepresentations, and by reason of defendant's said deceit, upon which he relied, failed and neglected to commence, within two years limited by the acts of Congress, an action to recover his said damages, and that at the time said defendant, its agents and servants, made such false and fraudulent statements and representations, your plaintiff had a good and valid cause of action under said acts of Congress, as he is informed and verily believes, of the value of no less than $25,000, and that, by reason and in consequence of such false and fraudulent representations and deceit of defendant, your plaintiff has, as he is informed and believes, lost his cause of action, all to your plaintiff's damage in the sum of $25,000.”

Raymond J. Cannon and Cannon, Waldron & Scheweichler, all of Milwaukee, and M. L. Lueck, of Beaver Dam, for appellant.

Henry V. Kane, of Milwaukee, and Homer W. Davis, of Chicago, Ill. (Gardnier Lathrop, of Chicago, Ill., of counsel), for respondent.

First Cause of Action.

JONES, J. (after stating the facts as above).

[1] The first count in the complaint must be regarded as an action brought to recover for personal injury under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665). The complaint claims damages for personal injury under that act, and alleges facts relied on to estop defendant from pleading the statute of limitations. The section involved is as follows:

“Sec. 6. That no action shall be maintained under this act unless commenced within two years from the day the cause of action accrued.” 8 Fed. Stats. Annotated, 1369 (U. S. Comp. St. § 8662).

This section is very brief and perfectly clear in its meaning. The act of Congress, giving rights of action to employees, gives to them new and important rights, and imposes new liabilities upon railroad companies. It creates liabilities where none existed before, and takes away defenses formerly available. Unlike ordinary statutes of limitations, this one is not merely a limitation of the remedy. The act under consideration creates the right, and specifies the conditions under which it may be enforced, and a compliance with those conditions is essential. In cases brought under this statute, the decisions of the federal courts must govern, and these uniformly hold that the lapse of time, not only bars the remedy, but also destroys the liability. Central Vermont Ry. Co. v. White. 238 U. S. 507, 35 Sup. Ct. 865, 59 L. Ed. 1433, Ann. Cas. 1916B, 252;Atlantic Coast Line Ry. Co. v. Burnette, 239 U. S. 199, 36 Sup. Ct. 75, 60 L. Ed. 226. In American Ry. Co. of Porta Rica v. Coronas it is said:

“The right granted exists only by virtue of the statute, and its scope and effect must be determined therefrom. The language of the act makes it plain that the right and correlative liability thereby established are conditional upon the bringing of the suit within two years from the day the cause of action accrued. The bringing of the action therefor, within the specified time, is a condition to the exercise of the right, and, if the condition is not complied with, the parties stand, with respect to the wrongful act, as though the statue had not been enacted. The limitation relates, not merely to the remedy, but to the right.” 230 Fed. 545, 546, 144 C. C. A. 599, 600 (L. R. A. 1916E, 1095).

In another case, Judge Sanborn, writing the opinion, said:

“A statute, which in itself creates a new liability, gives an action to enforce it unknown to the common law, and fixes the time within which that action may be commenced, is not a statute of limitations. It is a statute of creation, and the commencement of the action withinthe time it fixes is an indispensable condition of the liability and of the action which it permits. Such a statute is an offer of an action on condition that it be commenced within the specified time. If the offer is not accepted in the only way in which it can be accepted, by a...