Appeal from the Circuit Court of Cook county; the Hon. JOHN
GUTKNECHT, Judge, presiding. Reversed and remanded.
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
Rehearing denied December 28, 1961.
March 1, 1961. Supplemental Opinion,
This is a suit filed by Andrew E. Taylor, hereafter referred to as the plaintiff, against Elgin, Joliet & Eastern Railway Company, hereafter referred to as the defendant, under the Federal Employers' Liability Act (45 U.S.C.A. sec. 51 et seq.) to recover damages occasioned by the defendant's alleged negligence. The jury returned a verdict for the defendant upon which the court entered a judgment, from which this appeal is taken.
The plaintiff filed his complaint in November 1957, to which in December 1957 the defendant filed a general denial. In April 1959 the trial court entered an order denying the defendant leave to file an amendment to its answer. The case was assigned for trial, which commenced on May 7, 1959. The defendant asked leave to amend its answer. The amendment, filed on May 6, 1959, pleaded as an affirmative defense that the plaintiff had represented to the defendant that his only prior accidental injuries had been a broken arm sustained in farm work at Franklin, Tennessee in 1937, that he did not then have, nor did he ever have, dizzy or fainting spells, fits or injury to his back; that such representations were false in that in fact he had sustained previous injuries to his back of a serious nature in June and August 1950, "which injuries were diagnosed by the attending doctors as a ruptured intervertebral disc and narrowed lumbosacral interspace, and he had suffered from chronic epilepsy" since 12 or 14 years of age; that his physical condition made the plaintiff unfit and unacceptable for employment; that the said misrepresentations were known to be false and were made with intent to deceive the defendant; that they were material, and that one of the conditions of his employment was that any misrepresentation or concealment of any facts respecting his physical condition was just cause for his rejection or immediate dismissal from service whenever discovered; that the defendant relied on the plaintiff's representations and had no knowledge of their falsity until subsequent to the commencement of the action; and that the "plaintiff was not rightfully or lawfully in the employment of the defendant at the time of his alleged accident." There is nothing in the record indicating whether the court did or did not grant leave to file the amendment.
On May 7, 1959 the plaintiff filed a motion to deny defendant's motion for leave to file an amendment to its answer, on the ground that the amendment does not present a sufficient affirmative defense, alleging, among other things, that the defendant has failed to prove that the previous injuries or previous physical conditions had any causal relation to the plaintiff's physical fitness to perform his duties or to the injuries that the plaintiff suffered. The court took the motion to deny defendant's requested leave to amend under advisement and permitted evidence to be introduced on the alleged defense. At the close of all the evidence the court heard arguments on plaintiff's motion, which became in effect a motion to strike the defense, and denied that motion. After a recess the court reconsidered its ruling and required the defendant to amend its amendment so as to allege a causal connection between the conditions allegedly misrepresented and the accident, and denied the plaintiff's motion in all other respects. On April 13, 1960, almost a year after the trial, the court entered an order permitting the defendant to file an amendment to the amendment in accordance with the court's order of May 13, 1959, which amendment was as follows: "that said prior back injury and said chronic epilepsy had a causal relation to the alleged accident of January 26, 1957, and the injuries claimed to have resulted therefrom." On April 14, 1960 the plaintiff filed a reply to the amended amendment to the answer.
At the trial of the cause, and after the court had ordered the defendant to file an amendment to its amendment to the answer, the court approved an instruction given by the defendant based upon the amended amendment to its answer. The plaintiff here contends that the court erred in submitting the affirmative defense to the jury and that the instruction given by the court with reference thereto was erroneous. The plaintiff also complains that another instruction given by the court at the request of the defendant was erroneous; that the trial court erred in denying the plaintiff's motion for a directed verdict at the close of all the evidence; and that the verdict was contrary to the manifest weight of the evidence.
The defendant contends that upon the evidence in the record the questions as to plaintiff's credibility, negligence and fraud in securing employment were for the jury, that the jury was correctly instructed, and that the evidence fully sustains its verdict.
At the very threshold it becomes incumbent on this court to resolve certain sharply disputed contentions. It is the theory of the plaintiff that at the close of all the evidence the court should not have permitted the defendant to amend the amendment to its answer since there was no evidence in the record indicating any causal connection between the prior injuries or the physical condition of the plaintiff and the injuries in issue in the suit. We will discuss later the question as to whether there was such evidence in the record. The defendant contends with equal ardor that the trial court imposed on the defendant a greater burden of proof than is required under the law, that the defendant accepted that burden, and that the issue of causal relation was submitted to the jury and the evidence was sufficient to prove such a relationship. The defendant contends that under the law there was no necessity for it to file the amendment to its amended answer, that it is a complete bar to plaintiff's recovery in an F.E.L.A. case if it is found that the plaintiff in his application for employment concealed or misrepresented facts concerning his physical condition which were material in that they substantially affected the examining physician's conclusion that the applicant was in good health and in acceptable physical condition, and that they had a direct relation to the propriety of admitting the applicant to employment.
The defendant relies on Minneapolis, St. P. & S.S.M. Ry. Co. v. Rock, 279 U.S. 410. The courts both in Illinois and elsewhere have differed sharply in their determination of the proper interpretation of that opinion and its effect upon contracts between employees and employers subject to the F.E.L.A. The Rock case originated in Illinois and is reported in 247 Ill. App. 600 (1928). It was an appeal from a judgment of the Circuit Court of Cook County for $15,000 in favor of plaintiff for injuries sustained while working as a switchman for the defendant. Suit was brought in the name of John Rock. The real name of the plaintiff was Joe Rock. He had applied to the defendant for employment as a switchman. In the first application he gave his right name Joe Rock. In accordance with a rule and the practice of the defendant, plaintiff was sent to the company's physician for physical examination. It was found that he had been treated surgically for ulcer of the stomach and removal of the appendix, and that at the time of the examination he had a rupture. His application was rejected because of his physical condition. He made a second application to the defendant under the name of John Rock. That application was not in the handwriting of the plaintiff, and when the time came for him to be physically examined he sent a man named Lenhart, who pretended to be the plaintiff and who underwent the physical examination. Thereafter the plaintiff was employed by the defendant company for about fourteen months. The defendant conceded that the physical condition of the plaintiff at the time of the accident did not contribute in any way to his injury. The court in an opinion written by Mr. Justice Scanlan rejects the case relied on by the defendant, Norfolk & W.R. Co. v. Bondurant's Adm'r, 107 Va. 515, 59 S.E. 1091, which lays down the rule that a party who obtains employment by falsely representing himself to be of age and who subsequently is injured in the course of such service by reason of the negligence of said company cannot recover although his infancy in no way contributed to his injury, and that he stands in the same position with the company as a trespasser or bare licensee to whom the company stands in no contractual relation and to whom the company owes no other duty than not to injure him recklessly, wantonly or wilfully. The Illinois Appellate Court cites and follows the case of Lupher v. Atchison, T. & S.F. Ry. Co., 81 Kan. 585, 106 P. 284, which holds that where the employee procures his contract of employment by false representations the contract is not void, and while the alleged fraudulent statements would afford grounds for avoidance or annulment of the contract of employment at the option of the company, until that contract was actually terminated by the company the relation of master and servant would legally continue and exist. The court also cites Payne v. Daugherty, 283 F. 353 (8th Cir.), which holds that a contract of employment fraudulently obtained does not permit a retroactive dissolution of the relation of master and servant but that such a contract, even if voidable, imposed upon the employer the legal duty of providing for the safety of the employee.
In the Rock case the Appellate Court affirmed the judgment of the trial court. The Illinois Supreme Court denied certiorari and the United States Supreme Court reversed the case in 279 U.S. 410. In that case the court says: "Respondent was an impostor." The court recites the facts and says that the defendant had a right to require applicants for work at its railroad to pass appropriate physical examinations, and that the plaintiff's physical condition was inadequate because of the rejection of his application. It further says: "The deception by which he subsequently secured employment set at naught the carrier's reasonable rule and practice established to promote the safety of employees and to promote commerce." It further holds that the plaintiff's position as employee is essential to his right to recover under the Act, that while he performed the work of a switchman for the defendant he was not of right its employee within the meaning of the Act, and that while his physical condition was not the cause of his injuries, it did have a direct relation to the propriety of admitting him to employment. "It was at all times his duty to disclose his identity and physical condition to petitioner. His failure to do so was a continuing wrong in the nature of a cheat."
Subsequent to the decision of the United States Supreme Court in the Rock case, the case of Ward v. Elgin, Joliet & Eastern Ry. Co., 259 Ill. App. 672 (Abst.) was decided. This was a case where the plaintiff was injured while standing on a ladder of a moving train. He lost his balance because of a defective coupling pin lever, fell to the ground, and received the injuries complained of. At the time when he applied for employment no physical examination was required. In his application he falsely represented that he had never been injured. He worked for the defendant two years except for certain layoffs due to slackness in the business. The trainmaster testified it was his duty to examine and pass on the application and that if he knew of the facts of the plaintiff's injury he would not have employed him, or if he had been subsequently informed he would have discharged him. In an opinion written by Judge Gridley the Rock case is cited and on that basis the judgment for plaintiff was reversed.
The next case in Illinois is Powers v. Michigan Cent. R. Co., 268 Ill. App. 493. In that case the plaintiff, a switchman, was caught and crushed between the freight car on which he was riding and another car standing on a parallel track. Suit was brought under the F.E.L.A. The plaintiff had made misrepresentations in his application for employment. He misstated his age by 13 years. He was 52 but in the application he stated he was 39. On the trial he stated that he made this misrepresentation because he was told that the defendant had an employment age limit of 40 years. He also misstated his previous employment and failed to state that he had been formerly employed by another railroad company and that during such employment he had received an injury to his knee cap. He had employed an attorney to represent him in that case and had received a settlement out of court. He worked for the defendant for six years. The court cites the Lupher case in holding that the false statement does not cause the employee to cease being an employee. The court also cites Minneapolis, St. P. & S.S.M.R. Co. v. Borum, 286 U.S. 447. The court discusses the Rock case and states that the Rock case was followed by the Ward case in the Illinois Appellate Court. The court says: "The Rock case involved an unusual state of facts," and then sets out the facts in that case. The court further says:
"The United States Supreme Court characterized him as an `imposter' who deceived the railroad as to his identity, and that therefore he `was not of right its employee within the meaning of the Act'; that his continuing employment was `in the nature of a cheat' and that `the misrepresentation and injury may not be regarded as unrelated contemporary facts.' We read the opinion in this case as based upon the fact that the railroad had denied plaintiff employment, but he had fraudulently obtained employment by posing and pretending that he was an applicant who had been accepted. In the instant case plaintiff used his own proper name and made out and signed in his own handwriting the application for employment; he was accepted and was never rejected; he did not change his name or apply for employment under an assumed name, and did not have a third person impersonate him before defendant's medical examiner.
"The Ward case (cited above) in this court cannot readily be distinguished from the case under consideration. We think the opinion in that case extended the effect of the Rock case further than we should go. We are supported in this view by the more recent case of Minneapolis, St. P. & S.S.M.R. Co. v. Borum, 286 U.S. 447, 52 Sup. Ct. ...