
    Gurvan B. BROWN, Appellant v. PENNSYLVANIA RAILROAD COMPANY.
    No. 13164.
    United States Court of Appeals Third Circuit.
    Argued May 6, 1960.
    Decided Sept. 13, 1960.
    
      John M. Feeney, Jr., Pittsburgh, Pa. (McArdle, Harrington & McLaughlin, Pittsburgh, Pa., on the brief),, for appellant.
    Samuel W. Pringle, Pittsburgh, Pa. (Pringle, Bredin & Martin, Pittsburgh, Pa., on the brief), for appellee.
    Before KALODNER, HASTIE' and FORMAN, Circuit Judges.
   FORMAN, Circuit Judge.

This case arises under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq. Following a trial in which he ¡recovered a judgment for $15,000, Gurvan B. Brown, appellant, moved for relief from judgment by way of a new trial limited to the issue of damages pursuant to Rule 60(b), Federal Rules of Civil Procedure, 28 U.S.C.A. The motion was denied, Brown v. Pennsylvania R. Co., D.C.W.D.Pa.1960, 179 F.Supp. 858 and Brown appeals.

Two cases were involved, which were consolidated for purposes of pre-trial and trial. The first case concerned an accident which occurred on December 27, 1953, while Brown was employed as a conductor. Liability was denied by the appellee, Pennsylvania Railroad Company. It also alleged plaintiff was contributorily negligent. The second case concerned an accident which occurred on January 7, 1956. There Brown was employed as a brakeman. Liability was admitted and there was no evidence that Brown was contributorily negligent. As a result of the first accident, Brown lost approximately one week’s work but he had no medical expenses and received no medical treatment. As a result.of the second accident, Brown sustained a wage loss of approximately $2100. His actual and prospective medical expenses were less than $1,000. During the period of almost three years intervening between his return to work following his second accident and the trial date, Brown lost no time from work.

At the trial, there was conflicting testimony as to the effects of the accidents suffered by Brown. Brown’s principal medical witness contended that his patient had sustained, inter alia, a ruptured disc for which he recommended surgery. Brown, however, refused to follow this recommendation because of the hazards involved. The doctor testified that Brown was unemployable In the-labor market. He further stated that the disc condition would become- acute and that Brown would eventually submit to surgery, from which a residual disability was probable. The doctor stated that hernias might develop which would be referable to the accident. He testified that Brown was under constant sedation-. Brown contended that he had sustained a considerable loss of earning power; that his disability might increase In the future and that he faced the possibility of being laid off; and that although he had been working without interruption up to the trial, he did so on sheer nerve and expected to continue so doing. On the other hand, the Railroad argued that as of the time Brown returned to work following his second accident, he had recovered from his injuries, was able to work and did so as before, and that his earning power had not been diminished as a result of any injury he had suffered in the two accidents.

Brown continued to work at his regular job for several weeks after the case ended. At that time he was called for a conference with the Railroad’s doctor, who informed him that he was not medically qualified to continue his duties as a trainman. This opinion was based on the testimony given by Brown’s medical witnesses at the trial. Subsequently, Brown received a letter from the Railroad stating that he was being held out of service at the recommendation of its doctor. This action of the Railroad prompted Brown to make a post-trial motion.

In his attempt to gain a new trial, Brown has pursued a somewhat confused course. In his motion to the district court for a new trial under Rule 60(b) (3), he asserted:

“ * * * that the position taken by the defendant at the time of the trial of this case is in complete contradiction with the position it has taken since the trial of his case and amounts to a fraud and misrepresentation, the purpose of which was to substantially reduce the verdict to which plaintiff was entitled and the action taken by it since the trial caused plaintiff financial harm as a result of his having exercised his rights under the Federal Employer’s Liability Acts and as a result, thereof, plaintiff has been deprived of a fair trial on the issue of damages # 4f # ”

The district court noted that in support of that motion Brown in his brief contended that he was entitled to a new trial on the ground of newly-discovered evidence pursuant to Rule 60(b) (2). This newly-discovered evidence apparently was his being held out of service after the trial, of which he had no knowledge before or during the trial. In his brief to this court, Brown repeats the two grounds for a new trial and in addition argues that the district court committed reversible error in withdrawing from the jury the issue of whether he might be held out of service by the Railroad after the trial. We shall discuss these contentions in inverse order.

During the closing argument of Brown’s attorney, defendant’s counsel objected, and the following exchange took place:

“Mr. Feeney: —Questions have come into this case about whether or not Mr. Brown is able to continue working. He says he is. That is on his present condition. Of course, as Dr. Boone said, if he is not found qualified, he can be taken out of service. Now, will Mr. Brown continue to be qualified? Will he continue to be passed by the railroad doctors after this case is over ? You must remember that when he first
went back to work — you have to consider something together here. One of the bigger claims by Mr. Pringle in this case which he has harped on repeatedly, is the fact, ‘Look at this man, he has worked and worked and worked. He has lost no time, he went back to work in April, 1956 and has^worked ever since.’
“Now, does that impress you? Well, sure. Sure, it’s difficult to go to work if you have a bad back. Some people can do it. But it’s intended to say to you indirectly that this man couldn’t have a bad back if he went back to work and has worked.
“Now, in April of 1956, when this man said, ‘I want to go back to work,’ he had a medical examination by the doctor down at Conway, Dr. Boone, and then Dr. Boone discussed the case with his superior and with the claim department, the same old claim department that runs lawsuits, who knew that someday they would be faced with talking about this case to you twelve jurors, or some twelve people, and after a discussion with the claim department, which was not elaborated upon, Mr. Brown was sent back to work, said he could go back to work.
“Now, can he continue? He has a periodical coming up. Can they pull him out of service if they find or if they say we believe—
“Mr. Pringle: — I am sorry to interrupt. I object to this argument as improper and not warranted by any evidence in this case. The argument started with this question to the jury, ‘Will Mr. Brown be passed by the railroad doctors in the future as qualified for employment?’ There is nothing in this evidence to indicate that this case will have anything to do with whether he passes or doesn’t pass. If his condition continues as it is now, the jury has a right to assume and expect that he will continue to work > during the period remaining under the union contract, I suggest this argument is unwarranted and prejudicial to the defendant.
“The Court: — There is no evidence in this case that plaintiff is assured of a job or will be dismissed.
“Mr. Feeney: — No si^ neither way.
“The Court: — Is there any evidence he is to be examined?
“Mr. Feeney: — Yes, sir. There is evidence he has a periodic coming up any day.
“Mr. Pringle: — But the trend of this argument and the purpose of it obviously is to create the impression that maybe there will be a change of attitude after this case is over. I resent that. I object to it as not warranted under the evidence or under any of the testimony and as unfair and prejudicial to the defendant, and move for the withdrawal of a juror.
“The Court: — There is certainly no evidence in this case that the railroad will change its attitude toward this plaintiff as a result of your verdict.
“Mr. Feeney: — No, sir.
“The Court: — Any inference to the contrary should be utterly disregarded. No one knows what’s going to happen in the future. If you have received any inference from the argument that the plaintiff might be dismissed from the service because of this lawsuit, dismiss it from your minds, it is not warranted by any evidence in this case. In fact, under the Federal Employers Liability Act, the railroad cannot dismiss this plaintiff on account of some lawsuit he brings against it. So you can just disregard any such inference, if you have any such inference. I am not exactly sure that counsel for the plaintiff meant you to have any such inference. He has a perfect right to argue to you from the evidence what will happen in the future so far as this man’s earning power is concerned, so far as his pain and suffering is concerned, as did the defendant’s counsel argue to you to the contrary. We all know no one knows the future but God, and we have to do the best we can from evidence, and counsel is at liberty to argue evidence to you from any angle he chooses.
“Now, I think they understand.
“Mr. Feeney: — And I did not intend that inference, your Honor.”

Plaintiff argues that as a result of this exchange, the jury was precluded from considering the issue of his future disqualification for service. We cannot accept this argument. Rule 51, Federal Rules of Civil Procedure, makes it perfectly clear that:

“No party may assign as error the giving or the failure to give an instruction unless he objects thereto * * * stating distinctly the matter to which he objects and the grounds of his objection.”

The plaintiff made no objection. Furthermore, the court did not instruct the jury that plaintiff could not be disqualified for service because of anything that happened during the trial, but merely negatived any inference that plaintiff could be disqualified as a reprisal for bringing the suit. In fact, plaintiff’s counsel agreed with the court. Moreover, the alleged improper instruction did not lay a ground upon which Rule 60(b) could be invoked, since it is not a substitute for appeal. Title v. United States, 9 Cir., 1959, 263 F.2d 28.

The disqualification of plaintiff for service approximately one month after the close of the case does not qualify as “newly discovered evidence” within the purview of Rule 60(b) (2). That phrase refers to evidence of facts in existence at the time of trial of which the aggrieved party was excusably ignorant. Campbell v. American Foreign S. S. Corporation, 2 Cir., 1941, 116 F.2d 926; Schuyler v. United Air Lines, D.C. M.D.Pa.1950, 94 F.Supp. 472, affirmed 3 Cir., 1951, 188 F.2d 968. The Railroad had not acted to disqualify Brown for service at the time of the trial.

Finally, Brown urges that the Railroad’s conduct during the trial amounted to fraud and misrepresentation in view of his later disqualification for service. The conduct complained of was the assurance given by the Railroad counsel to the jury that Brown was secure in his employment. It should be recalled that at one point Railroad’s counsel did make the following statement:

“If his condition continues as it is now, the jury has a right to assume and expect that he will continue to work during the period remaining under the union contract, I suggest this argument is unwarranted and prejudicial to the defendant.”

However, it would appear that the court properly instructed the jury that: “There is no evidence in this case that plaintiff is assured of a job or will be dismissed.” The court further commented that: “We all know no one knows the future but God” and that “No one knows what’s going to happen in the future.”

In order to sustain the burden of proving fraud and misrepresentation under Rule 60(b) (3), the evidence must be clear and convincing. Atchison, Topeka & Santa Fe Ry. Co. v. Barrett, 9 Cir., 1957, 246 F.2d 846; Assmann v. Fleming, 8 Cir., 1947, 159 F.2d 332. No evidence was introduced at the hearing on this motion in the district court which would support a conclusion that the Railroad had decided to disqualify Brown for service before or during the trial. In fact, Brown introduced at that hearing the deposition of Dr. William Woodward, the Regional Medical Officer for the Railroad, in which he stated it was only after the trial that he examined the testimony of Brown’s medical witnesses and recommended Brown’s disqualification for service based on that testimony. And this court has held that it is not fraudulent for an employer to contradict a plaintiff’s medical testimony during a trial and then choose to rely on it as a basis for dismissing plaintiff after trial. Bassett v. New York, Chicago & St. Louis R. Co., 3 Cir., 1956, 235 F.2d 900.

The motion for relief from judgment is addressed to the sound discretion of the trial judge. Delzona Corporation v. Sacks, 3 Cir., 1959, 265 F.2d 157; Atchison, Topeka, & Santa Fe Ry. Co. v. Barrett, supra. Since we find no clear abuse of that discretion, and for the reasons stated herein, the order denying relief from judgment by way of new trial will be affirmed. 
      
      . Brown’s attorney resorted to Rule 60(b) since the ten-day period during which Rule 59 could be invoked had expired.
     
      
      . Rule 60(b) in pertinent part is as follows:
      “(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve . a party or bis legal representative from a final judgment, order, or proceeding for the following reasons: * * * (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b) ; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; * *
     
      
      . Ibid.
     
      
      . Ibid.
     
      
      . We make no comment on the court’s statement that Brown could not be discharged because of bringing an action against the Railroad since it is not in issue and there is no evidence to support a charge that Brown was disqualified for service for such a reason. shaU be liable to tbe Government for any excess costs for such similar supplies or services, provided, that tbe Contractor shall continue tbe performance of this contract to the extent not terminated under the provisions of this clause.”
     