
    Alexander SHARP and Isabelle D. Sharp, his wife, Plaintiffs, v. MONTOUR RAILROAD COMPANY, a corporation, Defendant.
    Civ. A. No. 60-846.
    United States District Court W. D. Pennsylvania.
    June 29, 1961.
    P. J. McArdle, Pittsburgh, Pa., for plaintiffs.
    Rose, Houston, Cooper & Schmidt, Pittsburgh, Pa., for defendant.
   GOURLEY, Chief Judge.

This matter comes before the Court on defendant’s motion to dismiss an action arising under the Federal Employers’' Liability Act, 45 U.S.C.A. § 51 et seq., for the reason that the complaint was filed beyond the statute of limitations, Rule 12: (b), Federal Rules of Civil Procedure, 28 U.S.C.A.

The alleged accident occurred on or about July 29, 1954, and the complaint, was filed December 29, 1960, or approximately six and one-half years thereafter.

Plaintiffs allege that they were induced to believe by an agent of defendant that workmen’s compensation was the only available remedy to them and that said inducement amounted to fraud which tolled operation of the statute of limitations.

The law is well settled that, despite their delay, plaintiffs are permitted to proceed with their suit if they can establish that an agent of defendant with authority in the particular matter conducted himself in such a way that plaintiffs were justifiably misled, Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 79 S.Ct. 760, 3 L.Ed.2d 700.

The specific issue of fraudulent inducement poses a jury question for preliminary determination.

An appropriate order is entered.

Motion of defendant, the Montour Railroad Company, a corporation, to dismiss the complaint will be and hereby is refused. Defendant is directed to file answer to said complaint within twenty days from the entry of this order.

Order

The United States Clerk of Courts is directed to place the above proceeding for jury trial at the next regular jury term -of this Court solely on the issue as to whether a fraud was perpetrated upon the plaintiffs thereby tolling the operation of the statute of limitations.  