Before MARIS, GOODRICH and STALEY, Circuit Judges.
This is an appeal from a judgment for the plaintiff in a Federal Employers' Liability Act*fn1 case. Plaintiff was injured when he was run over by a train operated by the defendant on its property. He was a track employee returning at night to the bunk car which was supplied by the railroad for living quarters for its track workers.The verdict was for $72,000, and the judgment, upon plaintiff filing a remittitur for part of the amount, was entered in the district court for $53,000.
The employing railroad, appellant here, does not raise in this Court the question of whether the defendant was negligent or the plaintiff was contributorily negligent. Three other defenses are urged which will be considered in order.
I. Fraud In Procuring Employment
The first of these defenses is that the plaintiff secured his employment with the defendant by fraud and is, therefore, excluded from recovery under the decision of the Supreme Court in Minneapolis, St. P. & S.S.M.R. Co. v. Rock, 1929, 279 U.S. 410, 49 S. Ct. 363, 73 L. Ed. 766.The trial judge did not submit this issue to the jury declaring that there was insufficient evidence to support a finding for the defendant on this issue. D.C.W.D.Pa.1954, 128 F.Supp. 909. We must, therefore, examine the appeal with the point in mind that if there is anything on which the jury could have found for the defendant on the fraud issue there must be a reversal to give it an opportunity so to find. The alleged fraud was a statement by the plaintiff in his application blank for employment that he had never had a surgical operation. Whether this answer was actually written by the plaintiff is very doubtful. But that he signed this document with the answers filled in by another is perfectly clear.The plaintiff had had a surgical operation, namely, the removal of an eye. At the time he went to work for the Pennsylvania Railroad a glass eye had been substituted for the one removed.
There is some doubt whether the plaintiff had not been "hired" and put to work for the defendant, glass eye and all, before this application was filled in. If this were the situation it is quite clear that the defendant could not be heard to say that it was deceived by anything said by the plaintiff. We do not rest the case upon this point however. The evidence concerning when employment actually began was not sun clear and was, therefore, the type of question which would have to be settled by submitting it to the trier of the fact.
Without this point, however, we think the case on this question of fraud is perfectly clear and in the plaintiff's favor. This man was one of a group of seventy-five or more secured for railroad employment at one time by an agency known as the Peter Pan Employment Company. They went through an examination by the railroad's doctor who is now dead. His report stated 20-30 vision by the plaintiff for each eye. The plaintiff says that all the examination consisted of was a direction by the physician to read something from a card. At any rate, the documentary evidence shows that the plaintiff was certified as having 20-30 vision in each eye while the fact, now claimed by the railroad and admitted by the plaintiff, is that one of his eyes was a glass substitute.
The cases which have dealt with this question of fraud in procuring employment in obedience to the Rock decision are quite numerous. A collection of them may be found in 136 A.L.R. 1125 (1942). We think the Ninth Circuit in Southern Pac. Co. v. Libbey, 1952, 199 F.2d 341, has made a good statement of the criterion which it in turn took from the Supreme Court decisions on this point. Minneapolis, St. P. & S.S.M.R. Co. v. Rock, supra, and Minneapolis, etc. R. Co. v. Borum, 1932, 286 U.S. 447, 52 S. Ct. 612, 76 L. Ed. 1218.One who has procured his employment by fraud may not recover "providing the false statement was of such character that it 'substantially affected the examining surgeon's conclusion that he was in good health and acceptable physical condition'." [199 F.2d 348.] Applying that criterion to the examining physician here the result is too obvious to need elaboration.
Defendant's counsel ingeniously suggests, taking his cue from the Rock case, that perhaps somebody else other than the plaintiff was the one examined by the doctor. This, he suggests, might account for the discrepancy between a 20-30 vision and a glass eye. We think the suggestion too fantastic to be taken seriously. There is not a single shred of evidence to support it.
Defendant also calls our attention to an illustration put in Restatement, Contracts, § 471, Illus. 8. There it is said that where the owner of a one-eyed horse turns the beast in such fashion that the prospective purchaser cannot see the blind eye and is deceived into buying the animal thinking him sound the concealment is fraud. We have no doubt that in that case the purchaser ought to be able to void the contract for fraud.
We think, however, that the complete answer to this argument is found in a comment upon the same subject in Section 541, Restatement, Torts.
"The recipient in a business transaction of a fraudulent misrepresentation is not justified in relying upon its ...