Toran v. New York, NH & HR Co.

• Decision Date: 19 November 1952
• Docket Number: Civ. A. No. 52-314.
• Citation: 108 F. Supp. 564
• Parties: TORAN v. NEW YORK, N. H. & H. R. CO.
• Court: U.S. District Court — District of Massachusetts

108 F. Supp. 564

TORAN v. NEW YORK, N. H. & H. R. CO.

Civ. A. No. 52-314.

United States District Court D. Massachusetts.

November 19, 1952.

John S. Stone, Boston, Mass., for plaintiff.

Noel W. Deering, Boston, Mass., for defendant.

WYZANSKI, District Judge.

Defendant moves for summary judgment on the ground that plaintiff's action has not been timely brought.

March 20, 1952 plaintiff filed a complaint alleging that he, a railroad machinist, was injured August 16, 1947, in the course of his employment, by defendant railroad, and that he was entitled to recover under the Federal Employers' Liability Act, 45 U.S. C.A. § 51 et seq. Defendant's answer pleaded that plaintiff is not entitled to maintain this action because he had not complied with 52 Stat. 1404, 45 U.S.C.A. § 56, which provides that "No action shall be maintained under this act unless commenced within three years from the day the cause of action accrued." Plaintiff answered that he "was fraudulently induced not to bring his action within the" three year period "by reason of false representations of fact made by the defendant to the plaintiff."

There is a division of authority on the issue whether after the lapse of the statutory three year period a plaintiff's cause of action is irretrievably lost. Supporting the view that prompt presentation is an unalterable condition precedent to the enforcement of the employee's right under the FELA are Damiano v. Pennsylvania R. Co., 3 Cir., 161 F.2d 534; Bement v. Grand Rapids & Ry. Co., 194 Mich. 64, 160 N.W. 424, L.R.A.1917E, 322; and Morrison v. Baltimore & Ohio R. Co., 40 App.D.C. 391. The contrary view, to the effect that the limitation period may be tolled by equitable considerations such as the type of fraud here alleged by plaintiff, has been held with specific reference to the FELA by Scarborough v. Atlantic Coast Line R. Co., 4 Cir., 178 F.2d 253, 15 A.L.R.2d 491. Other authorities on each side of the question, though generally in relation to other statutes, are collated in the note in 15 A.L.R. 2d 500.

I have determined, for the following reasons, to adopt the second view, and to hold that the commencement of the action within three years after its accrual is not an indispensable essential to a Court's jurisdiction of plaintiff's claim, nor a condition precedent to the judicial recognition of plaintiff's asserted right, but that, on the contrary, the Court has jurisdiction, and plaintiff's asserted right should be recognized, if (in addition to other necessary elements) plaintiff proves that his failure to sue within three years has been due, as he says, to defendant's fraud.

1. The words of the statute do not give a plain command. There is not here, as, for example, in the Hepburn amendment to the Interstate Commerce Act, 49 U.S. C.A. § 16, considered in A. J. Phillips v. Grand Trunk Western Ry., 236 U.S. 662, 666, 667, 35 S.Ct. 444, 59 L.Ed. 774, a direction that "all complaints * * * shall be filed * * * within two years from the time the cause of action accrues, and not after." (Emphasis added.) (Compare Midstate Horticultural Co. v. Pennsylvania R. Co., 320 U.S. 356, 64 S.Ct. 128, 88 L. Ed. 96 (interpreting § 16(3) (a) of the Interstate Commerce Act, 49 U.S.C.A. § 16(3) (a); United States ex rel. Nitkey v. Dawes, 7 Cir., 151 F.2d 639 (interpreting the Informer's Act, R.S. § 3494, 31 U.S.C.A. § 235).) Unlike the situations just cited, in § 6 of the FELA, Congress did not use the familiar formula which has been repeatedly held not merely to bar the remedy, but also to destroy the liability.

2. The broad policy of the FELA is to create for a railroad employee injured through his employer's negligence a cause of action under federal law which would be at least as generous as the typical state common-law cause of action available to other types of employees. Indeed, the federal cause of action is, as shown by statutory provisions governing contributory negligence, voluntary assumption of risk, and fault of a fellow servant, and as evidenced by the judicial trend to enlarge the freedom of a jury to draw inferences, far more favorable to a plaintiff-employee than the usual state common-law cause of action. It would, therefore, be anomalous if the federal law was less favorable than the state law to a defrauded employee. Yet, it is clear under state law that limitations of negligence actions are usually construed as subject to an exception benefitting a defrauded plaintiff. The defendant is, as the cases say, "estopped" from raising the defense of the statute of limitations. Illustrative of this state rule is Bergeron v. Mansour, 1 Cir., 152 F.2d 27.

3. In addition to its general liberality toward railroad employees there are other indications that the Congress which enacted the FELA would have embraced this state "equitable estoppel" exception. That same Congress, seeking to prevent railroad employees from being victimized, declared void "Any contract * * * or device whatsoever presumably including a fraudulent representation, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability". 35 Stat. 66, 45 U.S.C.A. § 55. And that and other provisions of the Act have been interpreted as precluding carriers from benefitting from releases they secured from deceived or overreached employees. Dice v. Akron, C. & Y. R. Co., 342 U.S. 359, 72 S.Ct. 312; Camerlin v. New York Central R. R. Co., 1 Cir., 1952, 199 F.2d 698. A Congress which refused to allow a railroad employee to lose his right as a result of a fraudulently procured release, presumably did not expect a railroad employee to lose his right as a result of a fraudulently induced delay in bringing suit.

4. The probable Congressional purpose in inserting a period of limitation in the FELA was not to expunge plaintiff's right absolutely at the end of 2 (now 3) years, but to avoid a multiplicity of different state statutory periods, which would govern in the absence of a federally prescribed limitation, Campbell v. City of Haverhill, 155 U.S. 610, 15 S.Ct. 217, 39 L.Ed. 280, and to have one uniform statutory period for the nation. Engel v. Davenport, 271 U.S. 33, 39, 46 S.Ct. 410, 70 L.Ed. 813; Osbourne v. United States, 2 Cir., 164 F.2d 767, 769; H.Rep. on FELA of 1908, reprinted in 2 Roberts, Federal...