Laughter v. Powell , 219 N.C. 689 ( 1941 )

WiNBORNE, J.

All parties to this action concede that plaintiff must recover, if at all, under the provisions of the Federal Employers’ Liability Act (45 U. S. C. A., sections 51-59) as interpreted by the Supreme Court of the United States. This was the theory of the trial in the Superior Corrrt.

Defendants, appellants, in the main, challenge the status of plaintiff as an employee. The question in this respect is raised by motions, aptly made, for judgment on the pleadings, and for judgment as of nonsuit at the close of all the evidence, and by exception to the charge of the court on the trial below. Here is the question: Where a young man, who is only nineteen years of age, knowing that a railroad company, which is engaged in interstate commerce, has a rule that “minors must not be employed in train . . . service,” and in applying to such company for, and for the purpose of obtaining employment as a trainman, represents that he is twenty-one years of age, and, upon examination by its authorized representative, he is found to be “physically and mentally fit to do the work” of a trainman, and is employed as such, and, after working for several months, and, while in the performance of the duties imposed upon him in that capacity on a freight train engaged in interstate commerce, is injured through the negligence of émployees of the company, is he an-employee within the meaning of the Federal Employers’ Liability Act? If so, may he maintain an action to recover for his injury ? The trial judge ruled as a matter of law that plaintiff was such an employee and may maintain this action.

Defendants, however, contend that this ruling is in conflict with the decisions of the Supreme Court of the United States in the case of Minneapolis St. P. & S. M. Ry Co. v. Rock (1929), 279 U. S., 410, 49 S. Ct., 363, 73 L. Ed., 766.

While in that case the Court held that the plaintiff, an imposter, was not an employee and could not maintain the action, the case is clearly distinguishable from that at bar.

We are of opinion that the ruling below is consonant with the clear weight of authority. Although the fact that an employee obtains employment by means of false statements may be ground for rescission of the contract of employment, it is insufficient to render such contract void or to terminate the relation of master and servant, or employer and employee thereby created. 39 O. J., 276, M. & S., 40.

Though not heretofore considered by this Court, this principle, in different aspects, including that of misrepresenting the age of the applicant for employment, not only has been applied by the courts of several states, but has been applied and approved by the courts of the United States. Pertinent cases tried under the Federal Employers’ Liability Act are these: Payne v. Daugherty (1922), C. C. A., 8th Circuit, 283 Fed. Rep., 353 (misrepresenting prior employment and previous injuries) ; Minneapolis, St. P. & S. Ste. M. R. R. Co. v. Borum, (1932), 286 U. S., 447, 52 S. Ct., 612, 76 L. Ed., 1218 (misrepresenting age) ; Dawson v. Texas & P. Ry. Co. (1931, Court of Civil Appeals of Texas), 45 S. W. (2d), 367, reversed April, 1934, by Supreme Court of Texas, 123 Texas, 191, 70 S. W. (2d), 392, from which petition to Supreme Court of United States for writ of certiorari was denied October, 1934. 55 S. Ct., 110, 293 U. S., 580, 79 L. Ed., 677 (a switchman made false statement as to previous injury while employed by another railroad company) ; Texas & N. O. R. Co. v. Webster (1932 Court of Civil Appeals of Texas), 53 S. W. (2d), 656, reversed April, 1934, by Supreme Court of Texas, 123 Texas, 197, 70 S. W. (2d), 394, from which petition to Supreme Court of United States for writ of certiorari was denied October, 1934, and rehearing denied November, 1934, 293 U. S., 58, 79 L. Ed., 677 (plaintiff withheld information that he had employed attorneys to sue and had filed suit against former railroad employer); Kansas City, M. & O. Ry. Co. of Texas v. Estes (1918), C. Cir. App. of Texas, 203 S. W., 1155; Qualls v. A. T. & St. Ry. Co. (1931), Dist. Ct. of Appeals, Third District, California, 296 P., 645 (misrepresented length of time he worked for his brother). See, also, these cases in which the Federal Employers’ Liability Act was not involved: Williams v. Illinois Central R. R. Co. (1905), 114 La., 13, 30 So., 992 (a minor employed as brakeman falsely stated age) ; Matlock v. Williamsonville, G. & St. L. Ry. Co. (1906), Mo., 95 S. W., 849 (a minor employed as brakeman misrepresented age) ; Galveston, H. & S. A. Ry Co. v. Harris (1908), 48 Tex. C. Civ. App., 434, 107 S. W., 108 (falsely stated never had any litigation with any railroad) ; Lupher v. The Atchison, T. & S. F. Ry. Co. (1910), 81 Kan., 585, 106 P., 284, 25 L. R. A.,(N. S.), 707 (minor falsely stating age) ; Hart v. The New York Central & Hudson River R. R. Co., 205 N. Y., 317, 98 N. E., 493 (misrepresenting age).

In the Borurn case, supra, the Supreme Court of United States, distinguishing that from the Bock case, supra, said that “Plaintiff’s physical condition was not shown to be such as to make his employment inconsistent with the defendant’s proper policy or its reasonable rules to insure discharge of its duty to select fit employees.”

In Payne v. Daugherty, supra, the Circuit Court of Appeals, 8th Circuit, through Cotteral, District J., speaking to ruling of the trial court in excluding evidence offered to defeat the action on the ground that the plaintiff fraudulently secured his employment, as pleaded, and in refusing instructions tendering such defense, said: “In our opinion the rulings are correct. The complaint is not that proof is incompetent which tended to attribute the fall from the car to prior injury or affliction. That is far different from permitting a retroactive dissolution of the relation of master and servant, by virtue of the contract, which even if voidable, was, while it subsisted, attended with the duty, required by law, for the safety of the latter . . .We regard the decisions such as Lupher v. Atchison, T. & S. F. Ry. Co., 81 Kan., 585, 106 Pac., 284, 25 A. L. R. (N. S.), 707, as declaring the sound and just rule, namely, that there is liability to the employee, notwithstanding the inducement to the contract. Furthermore, this action was brought under the Federal Employers’ Liability Law . . . And in our opinion we should hold that the defense urged was not available, in view of the positive terms of Sections 1 and 5 of the . . . Act,” citing authorities.

In the Lupher case, supra, a rule of defendant railway company forbade the employment of minors in capacity of brakemen. In 1904 plaintiff entered the service of defendant as brakeman. At that time he was eighteen years of age, but represented that he was twenty-one, and obtained his position by that misrepresentation. In 1906, while throwing a switch, he slipped and fell upon the tracks and was run over and injured. He sued the company alleging that his injury was due to its negligence. His evidence disclosed these facts. The trial court sustained demurrer thereto, basing its decision, it is said, upon the case Norfolk & W. Ry. Co. v. Bondurant, 107 Va., 515, 59 S. E., 1091, upon the ground that his misrepresentation in securing his employment prevented the establishment of the relation of master and servant, and that at the time of his injury he was either a trespasser or at most a mere licensee, to whom the company owed no other duty than not to injure him willfully or wantonly. In reversing the decision of the lower court, the Supreme Court of Kansas epitomized in the syllabus its decision in this language: “The fact that a brakeman obtained his position by falsely stating that he was of full age when he was in fact but eighteen years old (a rule of the company forbidding the employment of minors in that capacity) does not relieve the company from its obligation to exercise the same care for his protection that is due to any other employee, or disentitle him to recover for an injury due to the want of such care and not occasioned by his minority or immaturity.”

In the Williams case, supra, the first headnote correctly interpreting the decision, reads: “When a young man was employed as a brakeman on a sworn application, in which he stated that he was 21 years old, he at the time having the physique of a man, his minority is no factor in an action for damages for personal injuries.”

In the Ilarl case, supra, the Court of Appeals of New York said: “The appellant proposed to show that, in the written application made by him (plaintiff), he falsely represented that he was over twenty-one years of age and, having obtained his position by the false representation, that his rights were only those of a licensee. The trial court committed no error in excluding the evidence, as constituting no defense. The misrepresentation of the deceased affected the contract of employment, in the sense, that it made it voidable; but it did not affect the relation of master and servant, with respect to the former’s obligation under the statute respecting the safety of the person serving it. Notwithstanding that the deceased, by his misrepresentation, evaded the rule of the defendant forbidding the employment of minors, he was, actually, in its service and, therefore, was entitled to the protection of an employee accorded by the law,” citing among others the Lupher case, supra.

The case of Dawson v. Texas & P. Ry. Co., supra, as well as the case of Texas & N. O. Ry. Co. v. Webster, supra, was decided in the Court of Civil Appeals of Texas under authority of the Bock case, supra. But the Supreme Court of Texas, in reversing the decision of the Court of Civil Appeals in the Dawson case, supra, has this to say: “It is clearly established as a fact, that at the time Dawson applied for employment to defendant he was in every way physically fit to perform the duties of his employment, and had performed such duties for a period of twelve years in a satisfactory manner before bis injury, and tbat there was no causal connection witb bis injury and tbe false statements in bis application, and tbat bis injury was in no way related to said false statements. Tbe fact tbat be concealed bis employment by tbe Texas Midland Railroad Co., and concealed tbat be bad been injured while in its service, and bad filed a suit against it, if seasonably applied, might have been a ground for cancelling bis contract of employment witb defendant in error, but would be insufficient to render it void or to terminate tbe relation of master and servant. 39 C. J., 276, sec. 401. As such employee, and while in tbe full discharge of bis duties, be could not be deprived of tbe protection of tbe law or of bis right to recover for unlawful or negligent injuries inflicted upon him.” Then, after quoting from tbe Harris and Estes cases, supra, in tbe latter of which tbe Harris, Hart and Lupher cases, supra, are cited, and after citing others, among which are Qualls, Borum, and Lupher cases, supra, tbe Court continued: “Tbe conclusion reached by tbe Supreme Court of tbe United States in tbe Bock case appeals to reason and justice. . . . Joe Rock made application for employment as a switchman in tbe yards of tbe Minneapolis, etc., Ry. Co. He underwent a physical examination at tbe band of tbe Company’s surgeon, and was found to be in exceedingly bad physical condition, and for tbat reason was rejected. He then applied under another name, and secured another man, who was well and strong, to stand tbe examination. He went to work under tbe assumed name, and was injured. Tbe Supreme Court of tbe United States held tbat Joe Rock never became an employee of tbe railway company; tbat bis gross fraud was a continuing act; tbat at no time was be entitled to tbe protection or benefits of tbe Federal Employers’ Liability Act, and could not recover thereunder. It did not bold tbat where tbe applicant made a false statement about a matter disconnected from or not associated witb bis employment, and which was in no wise connected witb tbe cause of bis injury and not related to bis fitness or bis ability to discharge tbe duties required of him, be could not recover under tbe Federal Employers’ Liability Act (45 U. S. C. A., 51-59). Tbat it did not intend to so bold we think is made reasonably clear in tbe opinion written by tbe same eminent jurist in tbe case of Minneapolis, etc., Ry. Co. v. Borum, 286 U. S., 447, 52 S. Ct., 612, 76 L. Ed., 1218.” And, concluding, tbe Court said: “Dawson was an employee of defendant in error within tbe meaning of the Federal Employers’ Liability Act at tbe time be was injured. It was conclusively shown tbat be was physically and mentally sound, thoroughly competent to perform tbe duties required of him by defendant in error . . .”

In tbe Webster case, supra, it is said: “When Webster was employed by tbe Galveston, Harrisburg & San Antonio Railway Company, . . . in 1916, the physical examination of him showed him to be physically fit. There was no untrue statement which affected the physical fitness of Webster to hold his position with the company, and it is assumed his physical condition was the same when he became an employee of plaintiff in error. At least it was not shown that his physical condition was such as to make his employment inconsistent with plaintiff in error’s proper policy or its reasonable rules to insure discharge of its duty to select fit employees. Applicable here is the language used in the case of Minneapolis, etc., Ry. Co. v. Borum ... by the Supreme Court of the United States: ‘It is clear that the facts found, when taken in connection with those shown by uncontradicted evidence, are not sufficient to bring this case within the rule applied in Minneapolis, etc., Ry. Co. v. Rock . . . supra, or the reasons upon which that decision rests.’ ”

In both the Dawson and Webster cases, supra, petitions for certiorari were denied by the Supreme Court of the United States, and in the latter case a rehearing was also denied.

In the present case, although plaintiff John Grant Laughter obtained employment by defendants by falsely representing that he was twenty-one years of age, when in fact he was then only nineteen, and although defendants had a rule that minors must not be employed in train service, and would not have employed plaintiff if they had known that he was a minor, defendants, finding him to be “physically and mentally fit to do the work,” actually employed him as a trainman. This constitutes a contract of employment, even though voidable, by which the relation of master and servant, or employer and employee, was created between defendants and plaintiff. Hence, in the light of applicable principles enunciated in the authorities to which reference is hereinbefore made, defendants, so long as that relation subsisted, owed to plaintiff the duty to exercise the same degree of care for his protection that is due to any other employees under the provisions of the Federal Employers’ Liability Act.

Moreover, while it is true that the jury has found that plaintiff, by his own negligence, contributed to his injury, there is no averment by defendants nor is there evidence that such negligence was attributable to his minority. The defendants in pleading contributory negligence aver: “That, if the plaintiff was injured as alleged in the complaint, which is again expressly denied, such injury was the result of his own negligence in going between the cars of the defendants’ train and in placing his arm and hand in the position in which it was placed at the time of his injury, and in failing to exercise the care of an ordinarily prudent person under the circumstances.”

The defense relating to misrepresentations by the plaintiff is summarized in paragraph 16 of defendants’ further answer in this manner: “16. That plaintiff, having procured bis alleged employment by fraud, tbe relation of master and servant under tbe Federal Employers’ Liability Act did not in fact exist, and plaintiff was not an employee of tbe defendants, Receivers, in contemplation of said Act, and plaintiff is not entitled to recover in tbis action.”

Therefore, tbe fact that plaintiff was guilty of contributory negligence standing alone is not sufficient to raise an inference that bis minority was a proximate cause of bis injury.

Tbe cases of Norfolk & W. Ry. Co. v. Bondurant, supra, and Fort Worth & D. C. Ry. Co. v. Griffith (1930), Court of Civil Appeals of Texas, 27 S. W. (2d), 351, cited by defendants, are distinguishable from tbe present case.

As an additional ground for motion for judgment as of nonsuit, defendants contend that tbe evidence of negligence is not sufficient to take tbe case to tbe jury. Tested by tbe Federal Rule, as stated in Western and Atlantic Railroad Co. v. Hughes, 278 U. S., 496, 73 L. Ed., 473, that to carry tbe case to tbe jury “more than a scintilla of evidence” must be offered, we are of opinion that evidence of plaintiff is sufficient. See Hubbard v. R. R., 203 N. C., 675, 166 S. E., 802.

Tbe charge of tbe court relating to assumption of risk, to which exceptions 25, 26 and 27 are taken, is in substantial accord with tbe provisions of section 4 of tbe Federal Employers’ Liability Act as interpreted in decision of tbe courts of tbe United States. Tbe exceptions are not sustained. See Cobia v. R. R., 188 N. C., 487, 125 S. E., 18, and Hubbard v. R. R., supra, for review of authorities.

Defendants further except to the charge on tbe issue of damage, exceptions 28 to 34, inclusive. We are of opinion that tbe charge as given conforms substantially with tbe provisions of section 3 of tbe Federal Employers’ Liability Act, relating to recovery of damages for physical injuries where both negligence and contributory negligence have been found by tbe jury, as interpreted and applied by tbe Supreme Court of tbe United States. See S. A. L. Ry. Co. v. Tilghman, 35 S. Ct., 653, 237 U. S., 499, 59 L. Ed., 1069, and cases cited therein. See, also, Cobia v. R. R., supra. It is contended, however, that portions of tbe charge to which these exceptions are taken are conflicting. We are of opinion that tbe charge on tbis phase of tbe case, when read as a whole, is intelligible and free from tbe vice charged.

After giving due consideration to all other exceptions, we find no cause for disturbing tbe judgment of tbe trial court.

No error.