Tillery v. SOUTHERN RAILWAY COMPANY, Civ. A. No. 7175.

• Decision Date: 18 January 1971
• Docket Number: Civ. A. No. 7175.
• Citation: 348 F. Supp. 9
• Parties: James TILLERY v. SOUTHERN RAILWAY COMPANY.
• Court: U.S. District Court — Eastern District of Tennessee

348 F. Supp. 9

James TILLERY v. SOUTHERN RAILWAY COMPANY.

Civ. A. No. 7175.

United States District Court, E. D. Tennessee, N. D.

January 18, 1971.

Paul T. Gillenwater, Knoxville, Tenn., for plaintiff.

Clyde W. Key, Knoxville, Tenn., for defendant.

MEMORANDUM

ROBERT L. TAYLOR, District Judge.

Plaintiff James Tillery seeks damages from the Southern Railway Company, hereinafter sometimes called the Company, because of accidental injuries sustained August 7, 1942 while in the performance of his duties as an employee of the railway company. He claims that the company violated his rights under the Federal Employer's Liability Act.

The company has moved for a judgment dismissing the action upon the ground that there is no genuine issue as to a material fact and that the case should be dismissed because the action is barred by the three-year statute of limitations contained in the Federal Employer's Liability Act. 45 U.S.C. § 56.¹

The complaint charges that on or about August 3 or 4, 1943, the company caused to be constructed a pit which was filled with hot, molten steel and that plaintiff while in the performance of his duties stepped into the hot, molten metal and as a result sustained permanent and painful injuries to his foot. Plaintiff was advised by the company's claims agent that his sole remedy was under the Workmen's Compensation Act of Tennessee. Plaintiff relied upon the representations of the claims agent and accepted weekly benefits at the rate of $18.00 per week under the Tennessee Workmen's Compensation Law. That the representations were malicious and fraudulent. That plaintiff did not learn of his rights until October 13, 1970 when he consulted his attorney, Paul T. Gillenwater, about insurance coverage for operations which he had had on his injured foot. Plaintiff charges that the misrepresentations of the company's claims agent tolled the three-year limitations provision in the Act.

Plaintiff, in his discovery deposition, testified that he was sixty-five years old and a graduate of Knoxville High School. He went to work for defendant July 1, 1937 and joined the Boilermaker's Iron Shipbuilders & Helper's Union of America on October 18, 1939. In 1954, he became a member of Local 453. He was a crown boat man for the company and assisted in repair work on steel locomotives. He worked in the main on locomotives taken out of service. He was injured August 7, 1942 while working on a sand hose. He was treated by company doctors and his hospital bills were paid by the company. He discussed his injuries with the local chairman of the union who looked after the interests of the members of the union. At the time plaintiff was hurt he was helping some employees of the company to install a ventilating pipe in the roof of one of the buildings at Coster Shop. The company's claims agent told him he would be paid $18.00 per week for the loss of his toes. At the time of the injury, all the employees at Coster Shop were under the Workmen's Compensation Law. Plaintiff refused to accept his last check because the company wanted him to sign a release which he would not do because he felt there was a possibility of losing his leg. He was off from work nine months because of the injury. At the end of the nine months, he returned to work for the defendant at the same job he had before his injury and worked until 1952. In 1952, he transferred to the car department of the company where he worked for about ten months. He worked from 1943 until 1953 for the company without losing any time on account of his foot injury.

Norman Dugger was the Tennessee boss of his union. He discussed his injuries with Dugger and Dugger told him there was nothing he could do for him. He also discussed his claim against the company for injuries with Hovis, defendant's claims agent. He likewise discussed his claim with his attorney, Cecil Meek, in 1949, who advised him of his rights. Mr. Meek told him that he could do nothing for him. After he left the employment of the company, he was employed by the TVA at Johnsonville, Tennessee on a repair job and continued to work for TVA as a boilermaker at various places until May, 1970. He has had skin graft surgery on his injured foot for the last three years.

Although plaintiff stated that he did not know of his rights under the Federal Employer's Liability Act, he read in Knoxville newspapers from time to time about employees in the Coster Shop suing the Southern Railway Company and obtaining big judgments. He discussed with the local chairman of his union and a lawyer before 1949 his claim against the defendant.

R. Houston Hovis, in his affidavit, stated that he was in the employment of the company as a claims agent and was transferred to Knoxville in 1948. He continued as a claims agent in Knoxville until 1955 when he was promoted to district claim agent in charge of the Knoxville office, which job he held until 1965 when he was transferred to the Washington, D. C. claim office of the company. He is presently employed as a Hearing Examiner by the Government. The James Tillery file was assigned to him. The file contained a detailed report of how the accident occurred, including Tillery's statement, a copy of which was attached to affiant's affidavit; also the written legal opinion of J. A. Susong dated August 22, 1942, a copy of which was also attached to the affidavit. At that time, J. A. Susong was Division Counsel of Southern Railway Company in Tennessee and as such head of the company's legal department in Tennessee. In the summer of 1949, Tillery came to him and asked him to reopen his claim, insisting that he was entitled to more money for his foot injury, one of his claims being at the time under his injury that he was entitled to the protection of the Federal Employer's Liability Act rather than the Tennessee Workmen's Compensation Act. He told Tillery that his file contained a written opinion of Mr. Susong, the Tennessee Division Counsel of the company, stating that due to the circumstances under which he sustained his injury, his rights were those afforded by the Tennessee Workmen's Compensation Law rather than the Federal Employer's Liability Act and he declined to reopen the claim or make any additional payment to him.

On August 5, 1949, Cecil Meek, an attorney of Knoxville, Tennessee, contacted him, advising that he represented Tillery. Meek insisted that the Federal Employer's Liability Act was applicable to Tillery's injuries. Affiant took the position that the Workmen's Compensation Law applied, but that regardless of which Act applied, Tillery's claim under either Act was barred by the statute of limitations and no additional payment to him would be made voluntarily.

On September 15, 1949, and again on October 4, 1949, he talked over the telephone with Leslie Bass, an attorney of Knoxville, who advised that Tillery had been in his office on September 12, 1949 seeking his advice as to his rights arising out of the 1942 injury. He discussed with Mr. Bass in considerable detail the facts and circumstances under which Tillery...