
    Shinn v. The New York, Chicago & St. Louis Ry. Co.
    
      Limitation of actions—Statute qualifies right of action and not merely limitation upon remedy—Negligence—Federal Employers Liability Act—Limitation not extended by defendant’s fraudulent representations to plaintiff.
    
    1. Where right of action not existing at common law is given by statute fixing limitation of time for bringing action, such limitation qualifies right of action, and is not merely limitation on remedy.
    2. Representations by railway surgeon to employee that he had suffered no permanent injuries as result of accident, based on study and observation of employee, and made in good faith, did not show fraud or deceit in concealing serious ailment to stomach, which evidence showed might not have been due to injuries, and did not extend time for bringing suit beyond limitation prescribed in federal Employers’ Liability Act.
    (Decided June 14, 1926.)
    Error: Court of Appeals for Huron county.
    
      
      Messrs. Young & Young, for plaintiff in error.
    
      Mr. Edgar G. Martin, for defendant in error.
   Williams, J.

The plaintiff, C. E. Shinn, plaintiff in error here, began an action in the court of common pleas of Huron county against the New York, Chicago & St. Louis Railway Company to recover for personal injuries sustained by him while employed by the company as a flagman. Upon the trial of the cause in the court below the trial judge, at the conclusion of all the evidence, directed a verdict in favor of the defendant. This proceeding in error is brought to reverse the judgment entered thereon.

The plaintiff was in the caboose of a train, in the course of his employment, when, by reason of stoppage of the train by automatic application of the air brake, he was thrown down and injured. The train upon which he was working at the time was engaged in interstate commerce, and the federal Employers’ Liability Act (U. S. Comp. Stats., Sections 8657 to 8665) is applicable. After his injury he was under the care of the physicians of the defendant company for some time. The surgeon of the company, while caring for the plaintiff, made several examinations of him, and had an X-ray photograph taken, and then, after several weeks, advised the plaintiff that he had no permanent injuries. Relying upon the advice given, the plaintiff settled his claim for $245, and went to work. Finding, upon going to work, that he was not really in good physical condition to perform labor, he consulted a physician, who, after a scientific study of his case, advised him that he was suffering from a serious ailment of the stomach, which probably came from the injuries received. Although the two-year period within which an injured employee may bring an action, under the federal Employers’ Liability Act, had elapsed, the plaintiff began an action to recover damages in which he sought to excuse his failure to begin suit within the required time by alleging fraud and deceit on the part of the railroad company by reason of alleged false representations made by the surgeons to the effect that his injuries were not permanent.

Many courts have held that where the ordinary statute of limitations is pleaded by the defendant and relied upon as a defense to plaintiff’s cause of action, the fact that defendant has been guilty of fraud by knowingly making false representations to the plaintiff, and wrongfully causing him to allow the statutory period to run, will estop defendant from asserting the statute of limitations as a bar. Bement v. Railway Co., 194 Mich., 64, 160 N. W., 424, L. R. A., 1917E, 322; 37 Corpus Juris, 972, Section 353; 17 Ruling Case Law, 884, Section 243. There is a distinction, however, between the ordinary statute of limitations and a limitation which is an inherent part of the right of action. P., C. & St. L. Ry. Co. v. Hine, Adm’x., 25 Ohio St., 629.

It is a well-established principle that where a right of action is given by statute that did not exist at common law, and the enactment fixes a limitation of time within which the action may be brought, such limitation is a qualification of the right of action, and not merely a limitation of the remedy. 37 Corpus Juris, 974, Section 354. It has been held that the two-year limitation provided for in the federal Employers’ Liability Act qualifies the right of action, and even fraudulent concealment will not excuse the failure to bring the action within the prescribed time. We quote from the syllabus in Bement v. Railway Co., 160 N. W., 424:

“Federal Employers’ Liability Act providing that no action shall be maintained under the statute unless commenced within two years from the day the cause of action accrued, being contained in the same statute, which creates a new liability and cause of action and takes away defenses formerly available, the limitation is on the right and not on the remedy, and a suit may not be maintained if not brought within the time limited, although plaintiff relies on fraudulent representations of defendant. ’ ’

Applying this rule to the case at bar, the action would be barred, notwithstanding any claim of fraud.

Was there any fraud or deceit practiced by the representatives of the railroad company?

An examination of the evidence in the case at bar fails to disclose that there was any evidence tending to show that any knowingly false representations as to plaintiff’s physical condition were made by the surgeon or other representative of the defendant company. It is true, representations were made that there were no permanent injuries, but it does not appear that such representations were not carefully and honestly made. Whatever opinion the surgeon expressed was based upon study and observation of plaintiff’s physical condition, and there is evidence in the record tending to show that there was basis, at least, for the opinion that the condition of the stomach was not due to his injuries. Under such circumstances there was no fraud or deceit, and plaintiff’s claim is barred by lapse of time. Whitman v. Seaboard Air Line Ry. Co., 107 S. C., 200, 92 S. E., 861, L. R. A., 1917F, 717.

The court below did not err in directing a verdict; and the judgment will be affirmed.

Judgment affirmed.

Bichards, P. J., and Young, J., concur.  