Mumpower v. Southern Railway Company

• Decision Date: 20 June 1967
• Docket Number: Civ. A. No. 66-C-108-A.
• Citation: 270 F. Supp. 318
• Parties: Samuel E. MUMPOWER, Plaintiff, v. SOUTHERN RAILWAY COMPANY, Defendant.
• Court: U.S. District Court — Western District of Virginia

270 F. Supp. 318

Samuel E. MUMPOWER, Plaintiff, v. SOUTHERN RAILWAY COMPANY, Defendant.

Civ. A. No. 66-C-108-A.

United States District Court W. D. Virginia, Abingdon Division.

June 20, 1967.

R. C. Shannon, Shannon & Newman, Appalachia, Va., for Samuel E. Mumpower.

Leslie M. Mullins, Greear, Bowen, Mullins, Sturgill & Roberson, Norton, Va., for Southern Railway Co.

OPINION and JUDGMENT

DALTON, Chief Judge.

This action being a suit under the Federal Employers' Liability Act, the court has jurisdiction over the matter. The defendant, Southern Railway Company, is a corporation engaged in operating a system of railroads within the jurisdiction of this court, including a line in and through the County of Wise, Virginia. Plaintiff was engaged in working for the defendant in Wise County, Virginia, and both parties were engaged in Interstate Commerce by rail, their duties thus being controlled by the provisions of the Federal Employers' Liability Act.

The record reveals the following basic facts: Sometime in May 1960 the plaintiff was injured in the course of his employment. Plaintiff alleges that a fellow employee negligently placed an unlit lantern on the steps on an engine. Plaintiff stepped on the lantern and by reason thereof, he fell and suffered severe injuries. Plaintiff notified his employer, the defendant, of the injury, and was directed to report to Doctor E. L. Tauxe of Knoxville, Tennessee, for the purpose of ascertaining the nature and extent of his injuries. Plaintiff further alleges that Doctor Tauxe informed plaintiff that he had suffered no injuries, other than a slight strain to his back which required no treatment, and that plaintiff should return to work. Plaintiff alleges that the back strain was actually a ruptured disc which was corrected only by surgery in August 1966. Plaintiff now prays for damages for the cost of the surgery and hospitalization, and for the amount of income lost by reason of the injury.

Defendant denies all of the foregoing allegations except for the fact that plaintiff is an employee of defendant, and that Doctor Tauxe did examine the plaintiff in May 1960. Defendant filed an affidavit from Doctor Tauxe stating that he treated the plaintiff only for a shoulder injury. Doctor Tauxe states that plaintiff complained of a shoulder injury and did not mention any back injury. Doctor Tauxe denies that he ever told plaintiff that he suffered a slight back sprain. Defendant moved for a summary judgment on the ground that plaintiff's suit was not filed within three years of the alleged accident as required by 45 U.S.C.A. § 56. Plaintiff filed an affidavit stating that Doctor Tauxe did in fact tell plaintiff that he suffered only a slight sprain in his back. Plaintiff contends that the running of the Statute of Limitations was tolled because plaintiff relied on the statements of Doctor Tauxe that plaintiff suffered no serious injury, such statements being allegedly untrue in fact.

This court feels that defendant's motion for a summary judgment must be denied. The Federal Employer's Liability Act Statute of Limitations is not totally inflexible, but may be extended beyond three years. Burnett v. New York Central RR, 380 U.S. 424, 427, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965). One of the well recognized exceptions which will toll the Federal Employers' Act Statute of Limitations is the doctrine of estoppel. In Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 235, 79 S.Ct. 760, 763, 3 L.Ed.2d 770 (1959), the supreme court reversed a lower court decision upholding a plea of the Statute of Limitations, and stated: "Despite the delay in filing his suit petitioner is entitled to have his cause tried on the merits if he can prove that respondent's responsible agents, agents with some authority in the particular matter, conducted themselves in such a way that petitioner was justifiably misled * * *." The plaintiff in Glus alleged both intentional and unintentional misrepresentation, and defendant here insists that Glus must be limited to cases where intentional misrepresentation appears. But the court in Glus...