GLUS v. BROOKLYN EASTERN TERMINAL
Legal provision: Federal Employers' Liability
Argument of Seymour Schwartz
Chief Justice Earl Warren: Number 446, Michael Glus, Petitioner, versus Brooklyn Eastern District Terminal.
Mr. Schwartz, you may proceed.
Mr. Seymour Schwartz: Thank you.
Mr. Chief Justice, may it please the Court.
This is an appeal in forma pauperis from a judgment of the District Court in the Southern District of New York dismissing the complaint of petitioner, Glus.
Petitioner Glus brought his action under the Federal Employers' Liability Act.
In his complaint, he alleged that because of the fraud or misrepresentation of his employer, the respondent, Brooklyn Eastern District Terminal, he was in effect kept from bringing his action within the three-year statutory period of limitation.
And that for that reason should be permitted to bring this action nevertheless.
The respondent moved by motion to dismiss plaintiff's complaint and an order dismissing that complaint was entered.
No answer by respondent was entered, no testimony was taken, and the petitioner had no opportunity to have any pretrial procedure such as interrogatories or depositions.
The facts in the matter are as follows.
In July 1946, the petitioner, Glus, began employment with the Brooklyn Eastern District Terminal as a freight handler.
His job predominantly was to unload bags of flour from freight cars which came into the terminal.
Those bags of flour in various sizes were covered with paper, sometimes with some material.
In any event, there was a good deal of flour dust in and about the area of work where Glus was employed.
There were no safety devices or masks issued to those employees working with the flour, and after being subject to these working conditions for a number of years, in 1951, Glus discovered that he was having a good deal of difficulty breathing.
He brought this to the attention of his employers and he was seen by the company doctor at their request and his.The company doctor, after examination, suggested that Glus be assigned to light duty instead of being assigned to unloading the flour.
However, his foreman did not permit this new assignment and he was continued with the job that he had performed up to that time as a freight handler working on flour.
In the years 1951 and 1952, Glus made various complaints to his foreman, the General Superintendent of the Brooklyn Eastern District Terminal, and the claim agent of Brooklyn Eastern District Terminal asserting his condition and stating that he desire other work.
He was told by these three people that his condition was not as serious as he would make out and that if in fact it was serious at all, he still had seven years within which to bring his action against his employer.
I might parenthetically add that the Brooklyn Eastern District Terminal employs men who are under the Federal Employers' Liability Act, under the Jones Act, under the Longshoreman's Act and under the State Workmen's Compensation Act.
And it's quite possible that even attorneys at times might have difficulty in ascertaining exactly what Act covers a particular employee at a particular time.
In any event, in July 1952, Glus had a serious attack of asthmatic bronchitis and he received welfare assistance from the City of New York.
He went to the Greenpoint Hospital as a charity patient in Brooklyn and there, he was told for the first time that he was suffering from asthmatic bronchitis and that this condition was permanent and progressive.
He was last able to work for the Brooklyn Eastern District Terminal in January 1953.
And since March 1953, he has been employed by the Norcross Corporation in New York, which is a card firm, in their warehouse doing light work in decent working conditions which do not debilitate him too much.
Justice John M. Harlan: Did you (Inaudible) when does the -- the statute of limitations begin to run?
Mr. Seymour Schwartz: The statute of limitations begins to run from the time of the discovery of the disease and the petitioner acknowledges that the -- the statute would begin to run in this case, fraud side or misrepresentation side, in July 1952.
Justice John M. Harlan: When did the -- when did the action brought?
Mr. Seymour Schwartz: The action was instituted in May 1957.
Justice John M. Harlan: Thank you.
Mr. Seymour Schwartz: From January -- from March 1953 until January 1957, Glus had these intermittent persistent attacks of asthmatic bronchitis.
Finally, in January 1957, he had a near fatal attack and spent nine or 10 days in the hospital.
Since that time, he has been making regular visits to the hospital for treatment and injections in an attempt to keep the asthmatic bronchitis limited.
Justice Potter Stewart: One other question, if I may, on the fact.
Had he permanently let the employer or the defendant when he first discovered his condition?
Mr. Seymour Schwartz: No, sir.
He discovered his condition in July 1952 and the last time he worked for the defendant was in January 1953.
Justice Potter Stewart: Thank you.
Mr. Seymour Schwartz: His work record of course during this period was intermittent.
In April 1957, Glus sought counsel for the first time.
Nine days later, suit was instituted in the Southern District in New York under the Federal Employers' Liability Act alleging fraud or misrepresentation on behalf of the respondent in this action.
It is the petitioner's position --
Justice William J. Brennan: I suppose that he submitted the representation that they have seven years within which to bring action.
Mr. Seymour Schwartz: Three separate people, sir.
One is foreman, two, the General Superintendent of the Brooklyn Eastern District Terminal, and three, the claim agent of Brooklyn Eastern District Terminal.
Justice William J. Brennan: When -- all three made this representation?
Mr. Seymour Schwartz: At various times and at various places.
Justice William J. Brennan: Over what period?
Mr. Seymour Schwartz: Over a period, I believe, of months or a year.
Justice William J. Brennan: Beginning when?
Mr. Seymour Schwartz: In approximately 1951.
Justice William J. Brennan: The last one was when?
Mr. Seymour Schwartz: I could not pinpoint that, sir.
Justice William J. Brennan: Well, was that in 1951 or --
Mr. Seymour Schwartz: It was in 1952.
Justice Felix Frankfurter: Is the -- the case, is it relevant to the -- to the determination of this case to decide whether every misstatement is a misrepresentation?
Mr. Seymour Schwartz: I do not believe so, sir.
Justice Felix Frankfurter: Well, there's -- there were claim in these statements as to what the law is but --
Mr. Seymour Schwartz: Well, as for -- as for misstatements as to what the law is, sir --
Justice Felix Frankfurter: Isn't that -- what you said, I know no more than what you just said.
Mr. Seymour Schwartz: Yes.
As to misstatements as to what the law is, I would say depending on the circumstances and depending on the responsibilities of the parties, there would be an obligation to tell the truth or not to speak at all.
And in this particular case, there is the relationship of employer and employee.
The claim agent who probably knows as much about the Federal Employers' Liability Act and its statute of limitations as 98% of practicing counsel in the State was certainly one of those -- one of that class that the law intended not to misrepresent any statement of law to a potential plaintiff.
Justice Felix Frankfurter: I'm not suggesting that there might not be a ground of what normally is called estoppel but misrepresentation means consciously telling something that you know isn't so.
Is that this case?
Mr. Seymour Schwartz: Well, sir, that -- I couch the -- I couch the wording in my complaint as fraud or misrepresentation.
I did that because I did not know whether those statements were the result of fraud deliberately made or whether they were misrepresentations based upon an erroneous set of facts and erroneous analysis of what might well be a difficult factual determination as to what law this employee came under.
Justice Felix Frankfurter: You're -- you are suggesting that I am wrong in my assumption that when we talk about misrepresentation in the law, would mean something more than an error.
Mr. Seymour Schwartz: Well, my understanding, sir, is that sometimes it might and sometimes it might not.
I know that the term constructive fraud is often used when there's no intentional fraud, but the negligence is so great that the Court chooses to use the term constructive fraud.
Justice Felix Frankfurter: I'm against misusing words at misrepresenting the language.
Justice John M. Harlan: Suppose that issue was really here now, what you're asking where I take it is to let this case go to trial and then judge the sufficiency of the fraud or whatever --
Mr. Seymour Schwartz: Exactly, sir.
Justice John M. Harlan: (Voice Overlap) after the evidence was in.
Mr. Seymour Schwartz: Exactly.
Justice John M. Harlan: The District Court, as I understand it, denied your -- denied a motion to amend the complaint.
There is no amendment to cure the defect.
Mr. Seymour Schwartz: Yes, sir.
Technically, sir, no motion was made to amend the complaint but as part of the judgment of the District Court, they said that an amendment could not cure the defect, so none would be permitted.
Justice Felix Frankfurter: What's the basis for the Court of Appeals' feeling or expressed feeling that the allegation of -- of -- that would take it out of the statute, assume you could take it out of the statute of limitations, could be slim or meek or inadequate?
Mr. Seymour Schwartz: Well, I found that rather difficult to analyze myself, sir.
I think that very likely the question of draftsmanship was involved.
This -- from the time that the petitioner sought counsel for the first time and the time that a complaint was instituted, only nine days passed, and that was done because it was felt that time was of the essence.
And it may well be that the Circuit Court felt that the mere complaint by itself did not set forth sufficient allegations clearly to show the fraud or misrepresentation.
Justice Felix Frankfurter: Anyhow, they didn't go on that ground.
Mr. Seymour Schwartz: No, it was not on that ground, however, sir.
I think that even the Circuit Court would acknowledge that if fraud or misrepresentation would toll the statute of limitations, then Glus should be given his day in court.
Justice Potter Stewart: Mr. Schwartz, since your argument has already been interrupted, let me ask you one more question before you resume.
Is -- you answered -- you answered Mr. Justice Brennan's question as to some of the details of this fraud, who made the representations and when and so on, you very properly answered his questions, but am I correct in -- in understanding that so far as the record that we have before us now goes that all we have on this is, at the top of page 1 of the -- of the transcript, this allegation in paragraph 9 of the complaint.
Mr. Seymour Schwartz: That's quite correct, sir.
Justice Potter Stewart: That's all the record shows.
Mr. Seymour Schwartz: That --
Justice Potter Stewart: That's all the --
Mr. Seymour Schwartz: That's quite --
Justice Potter Stewart: -- District Court or the Court of Appeals have.
Mr. Seymour Schwartz: That's quite correct, sir, and that was my -- in part, that was my reply to the previous --
Justice Potter Stewart: Yes.
Mr. Seymour Schwartz: -- question.
It is the petitioner's position that the matter at hand should determine -- should be determined by the principle set forth in Holmberg against Armbrecht.
And I should like to read a brief portion of that case which we think is particularly pertinent here so far as the principle involved is concerned, "Where a plaintiff has been injured by fraud and remains in ignorance of it without any fault or want of diligence or care on his part, the bar of the statute does not begin to run until the fraud is discovered, though there'd be no special circumstances or efforts on the part of the party committing the fraud to conceal it from the knowledge of the other party.”
This equitable doctrine is read into every federal statute of limitations.
Justice John M. Harlan: Does that -- does that case involve the so-called built-in statute of limitations?
Mr. Seymour Schwartz: Sir, that case in fact did not involve the usual sort of statute of limitations question.
In that case, the federal statute did not have a specific statute of limitations and as a result, the Court had to resort to the state statute of limitations.
The state statute of limitations was, as I recall, can be -- that was the factual situation there.
We feel that the principle just enunciated, covers the facts in the present action.
Justice Charles E. Whittaker: May I ask (Inaudible) principle upon which you derive was the answer you gave to Mr. Justice Harlan (Inaudible) cause of action was deemed to have construed upon the discovery of the disease?
Mr. Seymour Schwartz: No, sir.
That -- that's completely different.
I cite -- I cite this principle merely to say that wherever fraud can be shown notwithstanding a specific so-called built-in statute of limitations within the federal statute, that statute of limitations, nevertheless, may be tolled.
Justice Potter Stewart: Now, you -- there's a doctrine -- at least in some States, there's the doctrine of fraudulent concealment which, as I understand it, arises out of a situation when the defendant knows or has good reason to know that the plaintiff has a cause of action and the plaintiff does it.
That would arise in this kind of a case, for example, if the defendant-employer had -- had made an X-ray of the -- of the defendant's lungs or something and it found a deterioration and damage and had not disclosed this to the plaintiff.
That's fraudulent concealment of a cause of action and that, at least on many jurisdictions, will toll any kind of a statute of limitations until the plaintiff learns in fact that he has a cause of action but that doctrine isn't -- isn't relevant here, is it?
Mr. Seymour Schwartz: Well, sir, we -- we run into one of the difficulties that a practicing lawyer has in this case.
Such a doctrine might well become relevant, but it could only be ascertained after depositions were taken or after interrogatories were sent.
So far as I know now, I know only the information which was given to me by petitioner and I can only rely on that.
It's conceivable that an opportunity to examine all interrogatories may well bring further facts into light which would strengthen the petitioner's position and conceivably might even give him another cause of action.
Justice Potter Stewart: Well, he -- this action was under the Federal Employers' Liability Act.
Mr. Seymour Schwartz: Yes, sir.
Justice Potter Stewart: Any action he brought would be under that statute, wouldn't it?
Mr. Seymour Schwartz: Yes, it would, sir.
May I accept and say this that it would be perhaps conceivable that some action in deceit could be brought even if the Federal Employers' Liability Act were held here to be no longer applicable because the statute of limitations could expire.
I don't set that forth with the law and for me to say it's a conceivable possibility.
The petitioner feels that the cases of Scarborough and Toran should be the cases which rule uniformly in this sort of matter.
When the Federal Employers' Liability Act was passed, the original statute of limitations of two years had as its predominant purpose making uniform causes of action brought throughout the United States.
Up to that time, employees had their common law rights and depending on the various States and the various law in those States, causes of action could be brought in one, two, three or more years.
When the Federal Employers' Liability Act was passed granting these protections to railroad employees, the purpose of that statute of limitations was to make uniform throughout the country, that period of two years, now three years since 1939.
Certainly, permitting the exception of fraud or misrepresentation to carve out an estoppel to a statute of limitations in nowise, diminishes the effect or the strength of asserting a uniform statute of limitations because the petitioner still would be put to his proof as to whether in fact there were fraud or misrepresentation in the case, nor is it particularly helpful to analyze these cases and the situation in terms of a substantive or remedial statute of limitations, that is a substantive statute of limitations cannot be tolled but a remedial statute of limitations can be tolled.
Generally, where those analyses are made in various cases, fraud is not involved.
Furthermore, a noble cause of action is usually set up to assert a substantive statute of limitations.
I think that in our argument, equally strong can be made that the Federal Employers' Liability Act inherently is not a noble cause of action because the Federal Employers' Liability Act still permits the employee to sue his employer on the basis of negligence and while they there certainly are strong procedural safeguards given to the employee, it nevertheless is not as yet a Workmen's Compensation act.
Justice Felix Frankfurter: How fruitful really is this mode of argument?
I know it's in the case.
Where do we really get in using this kind of an argument?
Federal employers' liability claim is certainly a noble -- certainly noble in the sense that that's the first time the Congress of the United States gave this kind of a cause of action.
I don't know anything more noble than -- than the statute passed by the Congress of the United States for the first time in 120 years.
Mr. Seymour Schwartz: Well, I -- sir --
Justice Felix Frankfurter: What you say is that there's been common aid of comparable causes of action at common law and in the State for this kind of thing, but how much help do I get in finding out whether the statute is -- is conclusive, not subject to any kind of qualifications or it isn't by being told it isn't noble because while Uncle Sam never gave this cause of action (Inaudible)
Mr. Seymour Schwartz: Well, very little, sir, and I agree with that and that was the reason I made that point.
I nevertheless did not want to be in the position of skipping.
Justice Felix Frankfurter: Well, I'm -- I'm not -- I get my observation by saying you're quite within the talk of the cases.
I'm suggesting it isn't a very fruitful mode of reaching this, whatever answer should be reached.
Mr. Seymour Schwartz: I -- I certainly agree with that, sir.
I think the essence of this is whether fraud or misrepresentation in any way would diminish the standard statute of limitations, the uniform statute of limitations throughout the United States.
And since equity historically has recognized this for a very long time as one of the exceptions to a statute of limitations, no harm would be done here.
And the respondent certainly ought not to be permitted to benefit from his own fraud or misrepresentation in an action of this type.
Justice Felix Frankfurter: I will get much more help if you marshaled all the instances in which statutes of limitations with reference to all sorts of claims or rights created by the Congress of the United States will impliedly qualify by fraud on the part of the defendant in leading you astray, leading the plaintiff astray in not bringing suit.
That was really -- show me that there's some basis for generalization such as -- such as the one you just made.
Is there such a body of -- I don't know anything about it, I'm asking you because you worked (Voice Overlap) --
Mr. Seymour Schwartz: Well, sir, I -- I have -- I have cited Scarborough and Toran which are within the field of the Federal Employers' Liability Act.
Justice Felix Frankfurter: (Voice Overlap) --
Mr. Seymour Schwartz: I've also cited the Holmberg case which I think is -- is relevant, although certainly not in the Federal Employers' Liability Act.
Justice Felix Frankfurter: Well, I don't care about the Federal [Laughs] -- of all other statutes you bring to bear to -- to make your point, the more convincing it is.
If there is a thread running through all sorts of statutes of limitations dealing with all sorts of claim in which such an implication has been made by the Court, that seems to me would be a powerful argument.
Now, is there such a body of decisions?
Mr. Seymour Schwartz: I think there very well -- there very well are particular cases but there is no very large body of decisions --
Justice Felix Frankfurter: But what kind --
Mr. Seymour Schwartz: -- that I'm aware of, and perhaps that's one of the reasons that this case is unique and I think important, sir.
Justice Felix Frankfurter: But it isn't so unique because there had been fruitful many cases in the lower courts.
In the Second Circuit, there have been plenty of cases, plenty of meeting, half a dozen.
Mr. Seymour Schwartz: Well, but the other Circuits have gone otherwise.
Justice Felix Frankfurter: Well, I'm not -- I'm not binding myself.
I'm trying to get light.
I'm not trying to -- I'm not trying to fortify conclusion I've reached because I haven't reached any.
Mr. Seymour Schwartz: I think that petitioner's argument is further fortified by the fact that the Federal Employers' Liability Act contains under Section 56 a built-in shield which protects the petitioner, and that Section reads as follows, and, Mr. Justice Frankfurter, perhaps to some extent, this is an answer to the very pertinent question which you just put to.
Sorry, that's Section 55.
"Any contract, rule, regulation, or device, whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void.".
Now, certainly, this section has been held to cover those situations where a general release has been taken, sometimes in advance, other times, after an accident, from a railroad employee.
The purpose of that release being to exempt the responsibility of the railroad.
If Congress intended that such a thing not act as a bar to a suit under the Federal Employers' Liability Act, it seems to me that they also intended, or the language also permits, that an oral misrepresentation or fraud would similarly be covered by this.
In that respect, the Federal Employers' Liability Act is unique since it does have this protection which can be set against the three-year statute of limitations.
Justice Felix Frankfurter: I think that might take care of your -- of a purposeful misleading by a claims agent.
It wouldn't take care of a stupid or an officious employee telling his buddy, "Oh, don't worry, you've got seven years."
Mr. Seymour Schwartz: It might not, sir, but nevertheless, I think we would be permitted to -- to have a trial or --
Justice Felix Frankfurter: Well, I -- I --
Mr. Seymour Schwartz: -- at least some preliminary --
Justice Felix Frankfurter: That's a different point.
Mr. Seymour Schwartz: -- proceedings in this matter.
Justice Felix Frankfurter: I understand that.
Mr. Seymour Schwartz: And that I -- that is the point that I'm trying to make.
We would like to have the opportunity of taking depositions, securing interrogatories, having a trial, and certainly, if there is any overriding question of law to be decided only by the Court, at that time and at that time alone, the Court would be in the best position to decide what the proven facts had been and what the circumstances had been.
Justice Felix Frankfurter: My remark is an intonation that if you are to prevail, it must be important for this Court to indicate to the lower court just what it is that does or doesn't take it out of the statute.
I don't mean a comprehensive enumerations of all possibilities, but it's one thing to rest a false representation by a claims agent and to interpret that as coming within device in the liberal sense in which should be -- it should be construed.
And quite another thing, as I say, to have some -- some busy body or some -- any employee as you say in -- in paragraph 9 unintentionally give a -- give a wrong stir.
Mr. Seymour Schwartz: Well, in the Scarborough case, the Circuit Court held that the mere -- the mere misrepresentation without more was sufficient to have the question go to the jury.
And we would certainly prefer to see that rule announced by this Court in its decision.
Justice Hugo L. Black: Why -- is that crucial to the decision on your side here?
Mr. Seymour Schwartz: No, sir.
Justice Potter Stewart: Is the Scarborough case the one that went to the Fourth Circuit Court of Appeals three times?
Mr. Seymour Schwartz: Yes, sir.
There were three Scarborough cases.
Justice Potter Stewart: Three times?
Mr. Seymour Schwartz: Yes.
Justice Potter Stewart: Three opinions (Inaudible)
Mr. Seymour Schwartz: Yes, sir.
Justice Potter Stewart: Yes.
Mr. Seymour Schwartz: I refer specifically to the third appeal where that is particularly set forth.
I believe that's mentioned -- the exact language is in my brief on page 12.
Justice Potter Stewart: Each time the Court of Appeals went a little further.
Mr. Seymour Schwartz: Yes, it seems that they were edging and edging a little further each time.
And certainly, I'm happiest with the third opinion.
Justice Felix Frankfurter: Judge Wyzanski's case didn't go up, did it?
Mr. Seymour Schwartz: No, sir.
It never did.
I think on the basis of the facts, sir, that the plaintiff at the very least is entitled to his day in court.
And we respectfully petition this Court to permit the petitioner to have that day in court.
Justice Potter Stewart: You would -- you concede, Mr. Schwartz, when the other -- under the -- if -- if the Court agree with you on -- on -- that under the federal rule as you would -- to inform with the federal rules, you -- your complaint ought to be amended.
Mr. Seymour Schwartz: Very likely yes.
Very likely yes.
Justice Potter Stewart: The rules --
Mr. Seymour Schwartz: It was -- it was a difficult position.
Justice Potter Stewart: The rules -- the rules expressly relate allegations of fraud (Voice Overlap) --
Mr. Seymour Schwartz: Yes, they do.
Justice Potter Stewart: -- require that the --
Mr. Seymour Schwartz: They do.
Justice Potter Stewart: -- facts be set up and (Voice Overlap) --
Mr. Seymour Schwartz: Yes.
I certainly think that would be justified.
Chief Justice Earl Warren: Mr. Mattison, you may proceed.
Argument of William C. Mattison
Mr. William C. Mattison: May it -- Mr. Chief Justice, may it please the Court, and Mr. Schwartz.
On his appeal, the respondent takes the precise issue which has been delineated by him and by the plaintiff in respect of briefs, namely, whether the period of limitations contained in Section 6 of the Federal Employers' Liability Act can be extended by fraud or misrepresentation by the defendant inducing a prejudicial delay by the plaintiff.
And then if the answer to that question is affirmative, then on the pleadings before this Court, the precise transcript which comes here as one of the Justices pointed out in paragraph 9 of the plaintiff's complaint at the top of the transcript, whether the representations alleged there by this plaintiff in his pleadings was sufficient to extend the statute or to put it in the traditional idiom where these representations sufficient to create as another of the Justices' commented an estoppel barring the plaintiff, the defendant from pleading the statute of limitations.
Justice Felix Frankfurter: But it takes as a little -- it's more complicated in -- that Judge Byers refused to allow amendment.
Mr. William C. Mattison: He didn't refuse to --
Justice Felix Frankfurter: So that -- that means that no set of circumstances could take care of the arithmetic thing, the three years that elapsed.
Mr. William C. Mattison: In his view, no.
In his view, no.
I'm not so sure that that was the correct view but I'm going --
Justice Felix Frankfurter: No, but that's -- but that's --
Mr. William C. Mattison: That -- that's --
Justice Felix Frankfurter: -- the case that comes here, isn't it?
Mr. William C. Mattison: That's the case that comes here.
Justice John M. Harlan: Tell me as a matter of interest (Voice Overlap) --
Mr. William C. Mattison: Yes, sir.
Justice John M. Harlan: -- your plan to quasi public organization.
Mr. William C. Mattison: No, sir.
It's -- it's individually and -- but non-publicly held stock corporation --
Justice John M. Harlan: (Voice Overlap) --
Mr. William C. Mattison: -- doing business in Brooklyn, New York.
Before I address myself to point one, in here, I might, with the Court's permission, take up two questions which were asked by Mr. Justice Frankfurter on the previous argument and allude to them briefly.
One, is there a body of law?
There is a body of law.
The body of law goes back before FELA on the nature of the statutes of limitations.
It goes through FELA.
It goes through the text writers right after FELA.
It goes into the 1920s and into the 1930s.
It surrounds the amendment of FELA in 1939 where material for this appeal, Congress did only one thing, it added an extra year.
Then in about nine more cases, the body of law continues up until 1949 in Scarborough, holding as far as our research has indicated, categorically and without exception and with complete unanimity that in this type of situation, fraud does not toll the statute of limitations.
The body of law which now comes before the Court in our brief and in our adversary's brief is confined at this moment to three cases which are cited in the briefs, the Scarborough case which went four years through three spins in the Fourth Circuit, and as Mr. Justice -- one of the Justices again commented that it -- it changed each time but that's not material here.
And then one more opinion by the Massachusetts court by Judge Wyzanski, and that is where we stand on the body of law.
If I may again address myself --
Justice Felix Frankfurter: I'm not -- I'm not sure I understand.
You said there is a -- there are -- are questions, the body of law pre-FELA --
Mr. William C. Mattison: Yes.
Justice Felix Frankfurter: -- is that -- are those cases in your brief?
Mr. William C. Mattison: Most of them.
Most of -- when I say most of them, no, because there are innumerable cases we took to the convenience of the Court, the cases that we thought were best in many of the -- for instance, we have Bement which I -- I can't remember where it's cited, maybe page 6 or so.
It's a state court, I think, in Michigan.
But all through the States, Mr. Justice Frankfurter, even for instance a recent case in New York which involved an analysis of the decisions of this Court and the lower federal courts.
The law is stated to be categorically that fraud will not toll the statute of limitations when it is practiced by a defendant.
Justice Felix Frankfurter: Let me put a specific question to you.
Is there no -- has no case -- is there no -- has this problem not originally with reference to some statements made by a revenue agent or a taxpayer as to what time he has assumed for protested facts.
That's -- that's what I'm looking for, whether on the other statute, having nothing to do with the -- with the FELA but having to do with the kind of implication that the Court do or do not read in by in the statute with fixed limitation, apart I suppose as there's so many things that federal statutes don't have no statute of limitations.
Mr. William C. Mattison: Your case did not.
Justice Felix Frankfurter: I know (Inaudible) but that's -- that's more difficult than (Inaudible)
Mr. William C. Mattison: My answer is that I know of none, but in all honesty to the Court, I wasn't looking for them.
And if I did, I would report it to you.
I know of none.
The singularity here is complete.
Secondly, if I may again address myself to a question that was asked, how does it help -- help us if we find that this FELA is a -- is not a new statute?
Well, Judge Wyzanski, as far as I know, and to some extent, (Inaudible) in the first of the three Scarboroughs, but Judge Wyzanski very specifically said, “Why, this is not new, this is old.”
But we have cited not only text writers but the Supreme Courts of many of the States and Justice Holmes in a -- on oblique reference to the newness of FELA in a 1916 case in our brief.
What Judge Wyzanski was trying to do, I think, and what Scarborough was trying to do on this issue, was to refute or to disclaim an ancient theory which is bound up with a litigation on these cases, namely, this is brand new at the law, this never existed at the common law, and when Congress gives this legislation, which is beneficial and beneficent, it prescribes the rules of the game, and because the argument was that it wasn't new and in only those two cases have I seen that statement made.
If I can proceed to state in just capsule form the theme of my argument from which I voluntarily distracted myself, long before FELA in 1908, the traditional distinction was made.
We cited the texts between general and special statutes.
General statutes are the ordinary ones.
They relate to rights already existing at common law.
Special statutes are considered to be those which are contained in such a statute, as FELA, which create the right in the first place.
Now, from the outset, the courts construed FELA as containing a special statute of limitations only and one which was subject to no exception.
There have been exceptions, I didn't mean to imply that there aren't, but not Justice Frankfurter in -- in cases of fraud.
The -- the classic exceptions are those which come out of a Civil War case in this Court where the Supreme Court of the United States took an ancient maxim of one of the European writers who said that if -- if the -- the prescription shouldn't bind someone when he doesn't have a form available to him.
And so, in cases where -- there are cases we cite into on our brief where the plaintiff was interned one day after Pearl Harbour and comes back and the statute has run.
In that type of case, there have been breaks, chinks in the armor, one of the judges called in the so-called impregnability of the doctrine for which we speak here today.
Justice Felix Frankfurter: You said that you draw on -- the word, I think, was the things or the circumstances or the material that surround the amendment of 1946, didn't you say that?
Mr. William C. Mattison: 1939, Your Honor?
The amendment of 1939?
Justice Felix Frankfurter: 1939, yes.
Mr. William C. Mattison: Well, what I meant to --
Justice Felix Frankfurter: Just surrounds the --
Mr. William C. Mattison: What I meant to say --
Justice Felix Frankfurter: Certainly didn't make a change by exerting the year but the circumstance that surround.
Now, does that mean that this question was brought to the attention of Congress?
Mr. William C. Mattison: Well, I spent a long time in the library, as I think Judge Wyzenski did, and the truthful answer to it is that in the debates in 1939, there isn't a solitary word about this doctrine for which I'm now contending, one way or the other.
Not a word.
And incidentally, and parenthetically, Judge Wyzenski says that's -- that's living proof of the fact that the Congress didn't know the body of law that grows around FELA since 1908 because he said, unlike the Internal Revenue Bureau, they have no counselors at hand to -- to advise their -- their labor people.
Justice Felix Frankfurter: And he could also tell that the particular few people who dealt with the subject in committee didn't know?
Mr. William C. Mattison: Well, he -- that's the plain -- that's the plain statement.
But it isn't true because the -- the cases abound in the state courts and in the Circuits and there just isn't any question about that aspect of it.
We argue, of course, and we cite Sutherland for hornbook, “Principles of Statutory Construction”, and we cite cases that where the Congress had this precise situation in front of them, namely, the legislative history of this Act for so many years and the decisions they must have known.
They must have known these decisions and they must have considered that the decisions met with their satisfaction else they could have created an exception.
Justice Felix Frankfurter: Is there any -- anything that indicates why they embarked in the statute of theory that's before you?
Mr. William C. Mattison: In the debates, I -- I do not recall.
I do not recall.
There was only a very brief page in the multitude of pages on the problem dealing with the enlargement.
Now, our alternative argument is that in of any -- in any event, if this Court feels that there should be an extension of the statute available here to the plaintiff, that on these pleadings, as the Court finds them, there should be no extension because as the Court of Appeals for the Second Circuit held in its opinion, this mistake or this misrepresentation, to use the language of the pleading, could have been a perfectly innocent one by an undoctrinated man who was speaking on a matter of law about which he knew nothing.
Now, addressing myself briefly to point one, I remake the point that before 1908, this distinction was exceptionally well-known.
The courts use all kinds of language to refer to these statutes, built-in, substantive.
But without exception, the courts held that the statutes, not this type before 1908, but debt actions and will contests which we cite in our brief, that those statutes were not extendable.
In a case in this Court in 1886, the Harrisburg which we've cited, this sentence appears.
It is the -- this Court's characterization of two debt statutes, one in Massachusetts and one in Pennsylvania, and here it is, “The time within which the suit must be brought operates as a limitation of the liability as created and not of the remedy alone.
It is a condition attached to the right to sue at all.”
I cite this only for its general usage in the approach to this problem.
Now, in the mid-1880's, when statutes of limitations generally were growing in the 48 States, at first, the courts showed a marked diversity to them.
But later, as we point out in the brief, with cases and with text citations, the courts began to enforce them literally and where exceptions were not found in the statutes the courts putting on in.
In 1908, this body of law was extensive and so we argue that the Congress knew it or is presumed to have known it.
We point out that in Central Vermont against White, which we cite and which was decided in this Court in 1915, on another question, namely, “Where is the burden of proof under this Act when there is a debt?”
This Court said that in enacting FELA, the Congress, knowing the decisional law on the question of burden of proof, must have intended that FELA be construed in the light of that decisional law.
Now, immediately after --
Justice John M. Harlan: Is the Fourth Circuit the only one that has gone the other way?
Mr. William C. Mattison: And Judge Wyzenski in Massachusetts.
Justice John M. Harlan: (Inaudible)
Mr. William C. Mattison: The only circuit.
Immediately after the adoption of FELA, and we cite these cases on pages 6 and 7 of our brief, there were a host, a legion of cases dealing with FELA at the District Court level, one right here in the District of Columbia, the Morrison case, which we cite on page 6, I think it is, cases at the state Supreme Court level and -- and in the Circuits.
We quote, at length Bement on page 6 of our brief, and it is a fairly typical characterization of FELA by a Supreme Court.
Justice Potter Stewart: Mr. Mattison, in -- in your reading of these cases, did you run in anywhere to the -- to the distinction that my question a few minutes ago suggested between fraud of the kind alleged or suggested in this complaint or misinformation as to the length of the statute of limitations to -- in that kind and -- and fraud that went right to the cause of action, fraudulent concealment of the fact of the plaintiff's cause of action, is there any (Voice Overlap) --
Mr. William C. Mattison: Judge -- in -- I think 32 States in the United States, there are statutes of limitations.
There's a -- an excellent article on this which I should have cited but it's in 11 -- 34 Michigan at page 1 --
Justice Potter Stewart: 34 Michigan Law Review.
Mr. William C. Mattison: -- an extremely scholarly article on this question of statute of limitations.
Here, I think he points out that there are 32 States in which there are statutes on this question of fraud.
But they are the types of fraud that go right to the cause of action such as we had in the case of Mr. Justice Frankfurter wrote which is cited in their brief, and on the concealment questions.
It is -- it's 31 Michigan Law Review, page --
Justice Potter Stewart: 3.
Mr. William C. Mattison: 1.
1 as it's found but -- page 591 at Sect.
Justice Felix Frankfurter: Do you happen to have (Inaudible) at hand the terms of the provision making the cause of action not -- or dealing with -- with the effect of fraud?
Do you -- do you have a sample form?
What do they say?
Mr. William C. Mattison: You are now referring to statutes in the States dealing with fraud?
Justice Felix Frankfurter: Yes.
Mr. William C. Mattison: Yes.
I -- I -- if you just give me one second.
Justice Felix Frankfurter: What you've just said.
Mr. William C. Mattison: Yes.
He cites -- Professor Dawson of Michigan cites as a typical statute, the Alabama Code of 1928.
This is Footnote 1 on the article.
It reads, "In actions seeking relief on the ground of fraud where the statute has created a bar, the cause of action must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud."
Now, that statute --
Justice Felix Frankfurter: That makes the distinction Justice Brennan made --
Mr. William C. Mattison: Yes.
Justice Felix Frankfurter: -- namely, there's one thing to -- as in this case, to conceive the cause of action arose on (Inaudible) certain, and is there a reason for not extending it or extending it beyond the three calendar years and say the cause of action doesn't arise until there's consciousness on the part of the plaintiff that he has one.
Mr. William C. Mattison: But you see as -- Mr. Justice Frankfurter, as you find these pleadings, it's ineluctably clear that this plaintiff knew that he had a cause of action.
Justice Felix Frankfurter: Well, that's -- that's not in dispute.
It isn't --
Mr. William C. Mattison: He doesn't --
Justice Felix Frankfurter: No.
The suggestion and answer through an earlier question by Justice Harlan that the -- the answer was explicit that if the statute of limitations, three years (Inaudible) and he's out, so I understood Mr. Schwartz's answer.
Is that right?
Mr. William C. Mattison: Yes, sir.
Justice Felix Frankfurter: So this is not a problem of where the cause of action arose.
That is not in controversy.
Mr. William C. Mattison: It is not in controversy at all.
It is an issue.
It is -- it is admitted here by the pleadings in an argument that the cause of action arose in 1951 or 1952.
And it's -- this has long since bought as the time goes.
Now, Scarborough came along and I guess I should not, at this hour, discuss Scarborough, Fravel and Toran.
They've taken a part pretty well in the brief to the extent that we could.
There is no -- there is no doubt.
There is no doubt that on the facts, the cases are markedly dissimilar, but I must concede that the language of Scarborough is so sweeping that it presents a precise issue in this -- to this Court.
It started out as a palpable and deliberate fraud of the worst type.
And finally, through three jury trials and the exhaustion of the Fourth Circuit, it stands -- and I must confess that I find it -- and I -- we cite cases all through the United States in opposition, it stands for the proposition that all you need is a statement, mens rea, nothing matters, just a statement that is in fact incorrect and reliant.
That's -- that's the way Scarborough worked out the -- on the third spin.
I would like to conclude my argument by addressing myself to point two of my brief, which is, as I've indicated to the Court, assuming that you find that fraud or misrepresentation on this transcript should toll the statute, then this is not a -- appropriate place for the statute to be tolled.
Subsequent, this is the -- the pleading in issue, subsequent the plaintiff's pleading, subsequent thereto the defendant's agents, servants and employees fraudulently or unintentionally misstated to the plaintiff, but he had seven years within which to bring his action.
The Court has already started out from this appeal the fact that these misrepresentations of successive claim agents and so forth and statements which are contained in the petitioner's brief that examinations by doctors and so on that that, while it may certainly be true, is not before the Court.
The sole and exclusive pleading is the one which the Court has already latched onto on the argument, namely, paragraph 9 of the complaint.
Justice William J. Brennan: Aren't you up against what Mr. Justice Frankfurter said earlier, Mr. Mattison, that Judge Byers did tell him you wouldn't allow him to amend and perhaps on the premise that you're making this argument, namely, that fraud does toll?
Mr. William C. Mattison: Well, he might --
Justice William J. Brennan: He might be able to amend if he had the opportunity to bring himself within it, is it not?
Mr. William C. Mattison: Mr. Justice Brennan, there is not even the remotest implication of criticism as the case comes here.
I am -- I mean, it -- it's unfortunate that he was told that he couldn't amend.
And so, I mean, I'm certainly not taking any issue with any of these statements that have been made because I will concede, for argument's sake, that they might -- you know, they might be true.
It's just unfortunate that as the transcript themselves, we are dealing with a naked allegation in the prolix language that we lawyers have to use when we draw these pleadings.
The District Judge referred to Hilliard against Pennsylvania Railroad Company
There, the claim agent told the plaintiff's father that when the boy gets to be 21, he can determine for himself.
That's the typical situation in which the courts, in a number of cases which we've cited throughout the United States, have held that however unfortunate the issue as it was formulated, however unfortunate the issue be, that it is a misrepresentation of law.
Now, in Scarborough, of course, you had something more than that.
You had a -- a -- an inducement to a -- an unfortunate plaintiff not to sue in exchange for a promise that he would be paid when he was 21.
Toran has no facts, as I recall it.
That's right, so I don't know what the facts were there.
Here, as I said, we have no inducement and we have no exchanges of promise.
We have no promissory estoppel, as the New York court sometimes call it.
We have simply a statement albeit made by a -- a non-informed and perhaps, an unfortunate claims agent or whoever it was, I don't know from the pleadings, it could be one of three people, or more, who said to this unfortunate plaintiff it is alleged that he had seven years within which to sue.
In conclusion, I think that what the Court here is faced with, if it gets beyond the pleadings, and if it satisfied that argument point two of our brief has no merit, if it's -- if it's faced with the decision of -- of extending or making a statute extendable, it's faced with a -- a monument of tradition, which perhaps it is not easy to -- to defend and sound logic to get to the juridical basis of this distinction as an extraordinarily difficult matter which I'm glad the Court didn't ask me to embark on.
But there it is, and we are, and I think the Court is and Congress is stuck with it.
Justice Potter Stewart: Well, the monument you're talking about is the -- is the distinction between the -- the built-in statute and the general statute?
Mr. William C. Mattison: And the non -- and the non-extensibility of the latter because traditionally, the courts considered that it is the creation of the right within the statute and it marks the rules of the game
Justice Potter Stewart: If the built-in statute was part of the right, which was a --
Mr. William C. Mattison: Cause of --
Justice Potter Stewart: -- legislative --
Mr. William C. Mattison: -- we gave you a lot of good things and --
Justice Potter Stewart: Yes.
Mr. William C. Mattison: -- maybe some of them are bad but this is --
Justice Potter Stewart: Yes, conditioned upon the statute of limitations.
Justice William J. Brennan: May I ask, Mr. Mattison, not to pressure.
Mr. William C. Mattison: (Voice Overlap) ---
Justice William J. Brennan: Now, that you said you were glad we had not, in that article, for example, which you referred us to, is there any attempted offense of this?
Mr. William C. Mattison: Fortunately [Laughs] -- fortunately, he doesn't.
Justice Felix Frankfurter: What -- what does he do?
Mr. Dawson is, to my mind, one of the curious minds --
Mr. William C. Mattison: It's an --
Justice Felix Frankfurter: (Inaudible)
What does he do?
Mr. William C. Mattison: In this article, which unfortunately is not addressed to FELA and its problem, and for -- for which reason I didn't cite it, Judge Frankfurter, he talks about the ancient origins of statutes of limitations coming down from Edward III, James I and into the States here, and what the equity courts did, which incidentally was pointed out by you in your opinion because they felt they weren't bound by James I, and what our equity courts did and how finally in the middle of the 18th Century, we avow of these statutes, and he addressed himself exclusively to this question of fraud as in the Alabama statute, he left for a later issue concealment which U.S. about in -- I haven't read the article.
Justice Felix Frankfurter: But it is conclusion -- it is as much as so many States, a good many States have dealt with the problem (Inaudible) statutorily implication is that it ought not be implied.
If that is new, I can understand that mode of reason.
Mr. William C. Mattison: Well, he merely takes a -- he merely takes a historical treatment of statutes of limitations which we lawyers know about usually dealing with actions in fraud, and he traces their historical development.
Unfortunately, he doesn't talk about the distinction between built-in or substantive and remedial statutes.
Justice William J. Brennan: Have you run into -- in any source, any defense of that distinction --
Mr. William C. Mattison: No.No.
Justice William J. Brennan: -- other than the -- other than the words that once related the right and the other the remedy?
Mr. William C. Mattison: No.
Well, there -- there is this -- there is this.
It's perhaps not too appealing.
You didn't have a right X at the common law and now, we're giving you one.
And we are a literate Congress, we know all about these decisions so we know something about them.
And these statutes up and down in the United States and in England have been construed as substantive.
If this -- if the legislature doesn't give you an exception, you don't get one and now, we adopt this legislation.
We're giving you something you didn't have and we are following the rules of the game.
It is, I think, one, that you are getting something you didn't have before.
That's why this emphasis aren't unique to the common law.
It is that.
It is also the ease with which Congress could have done otherwise here.
For instance, and I think it was -- pardon my pointing -- an 1870 statute, which I cite in the footnote and I found another one, which I didn't cite, a 1930 Tariff Act, Congress went right out of its way, our Congress, to put in the statute of limitations an expressed statement that fraud would toll the running of the statutes.
Justice William J. Brennan: But there are other federal statutes in which Congress has said two years and no longer.
Mr. William C. Mattison: Yes.
Well, I don't know whether that argument appeals to you.
To me, it is just atrocious writing to say in a nice statute that you have two years or three or four to sue, comma, and not after.
To me, it -- it offends my sense of -- of precision if I have any left in -- in English and I simply can understand it, and that's the best that I can do with that argument in my brief.
Incidentally, it did appeal to Judge Wyzanski.
Justice Felix Frankfurter: Now, Mr. Mattison, since you've opened up freely, going about this (Inaudible) one should, trying to find underlying reasons, not just words.
If the distinction is, as I get it, the distinction is this that if you deal with common law right as to which there are statutes of limitations, you may imply a qualification, namely, conduct by the defendant -- the -- the plaintiff -- conduct by the defendant leading the plaintiff astray and not of saving his right, that is the common law right.
But as to new, newly created right, that doesn't apply.
Now, that means to me that as to old stuff, you implied fairness.
As to new things, you don't, which isn't very satisfactory, is it?
Mr. William C. Mattison: Intellectually, it isn't and it isn't intellectually satisfactory and I --
Justice Felix Frankfurter: (Voice Overlap) you -- you said something a minute ago which as a lawyer does carry weight would be, namely, namely, that after all, as we know, most of the members of the Congress are lawyers and I don't know why Justice -- Judge Wyzanski gets the confidence.
They don't know anything because they didn't tell him, that there were too much of an assumption (Inaudible)
But in any event, if this is drafted by lawyers in the Interstate Commerce Commission, for years and years and years is that lawyer (Inaudible) leading members.
You tell me -- you just told me, there's been (Inaudible) that Congress in a number of instances did specifically deal with this problem by writing in the -- the qualification.
Now, that's lawyer's argument and you ask for a lawyer.
Mr. William C. Mattison: To -- in Footnote 8 of my -- my brief -- page 8, Footnote 1, I have only one footnote at the brief.
Justice Felix Frankfurter: Which is it, Mr. --
Mr. William C. Mattison: Page 8 of my brief, Your Honor, Footnote 1.
And if -- Mr. Justice Frankfurter, if you would like a citation in which you will find an annotation covering the States dealing with a problem and writing in fraud, I didn't feel it appropriate to put it in.
It is 15 A. L. R. 2d, 15 A. L. R. 2d 500 at Sect.
And in that article, I think you will find mention of the Tariff Act of 1930, which I mentioned briefly, 15 A. L. R. 2d 500 at Sect.
You will mention -- you will find mention of the Tariff Act of 1930 in that article.
It was a five-year statute.
And there, the Congress -- the Congress put in the words "concealment or absence of the property will not toll the statutes".
So I have at least two.
Justice Felix Frankfurter: Now, that goes “concealment or absence of the property”.
Mr. William C. Mattison: It's a tariff.
Justice Felix Frankfurter: Yes, but I mean that -- that is in Justice Stewart's corner of -- of knowing when the cause of action arises.
Mr. William C. Mattison: Well, I have difficulty -- may I talk?
My light is on, shall I?
Chief Justice Earl Warren: You may answer that, yes.
Mr. William C. Mattison: Thank you sir.
I have difficulty with that argument because I -- here, there is no question that he knew he had a cause of action.
These cases, Mr. Justice Frankfurter, thousands of them in this Michigan Law Review, deal with actions for deceit.
And in each one of them, I'm certain the plaintiff didn't know that he had a cause of action until something happened.
Here, of course, the contrary obtains.
He knew it but he was told that he had more time than he does.