# Still v. Norfolk & Western Railway Company/Dissent Whittaker

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Frankfurter
* Dissenting Opinion Whittaker
United States Supreme Court
368 U.S. 35
Still v. Norfolk & Western Railway Company
Argued: Oct. 19, 1961. --- Decided: Nov 13, 1961
Mr. Justice WHITTAKER, dissenting.
Claiming to have suffered injuries to his back by the negligence of fellow servants in the course of his employment by the respondent railroad in interstate commerce, petitioner brought this action against the railroad in a West Virginia court under the beneficent provisions of the Federal Employers' Liability Act. 45 U.S.C. §§ 51-58, 45 U.S.C.A. §§ 51-58. But application of the provisions of that Act is, in terms, made to depend upon, among other things, the existence of an employee status. At the conclusion of the evidence offered on the trial of the case before a jury, the railroad moved for a directed verdict upon the ground, among others, that petitioner did not occupy an employee status with the railroad. Believing that the undisputed evidence so clearly established that petitioner had procured his putative employment relation with the railroad by materially fraudulent misrepresentations to, and concealments from, the railroad and its examining physician of his now admitted congenitally defective back condition that reasonable men could not differ about it, the trial court granted the motion and directed the jury to, and it did, return a verdict for the railroad. The Supreme Court of Appeals of West Virginia declined to review and we granted certiorari. 365 U.S. 877, 81 S.Ct. 1026, 6 L.Ed.2d 190.
This Court now not only reverses that judgment, but it also-I think quite gratuitously and erroneously-restricts the case of Minneapolis, St. Paul & S. Ste. M.R. Co. v. Rock, 279 U.S. 410, 49 S.Ct. 363, 73 L.Ed. 766, 'to its precise facts.' While the undisputed evidence of petitioner's fraud upon the railroad in procuring the putative employment relationship seems fairly clear to me, as it did to the two state courts, I concede that reasonable men may differ about it; and therefore, if we must here deal with such fact issues, I am able to say that the issue should not have been determined by the court as a matter of law, but instead should have been submitted to the jury for resolution. But I am unable to agree to what I think is the Court's gratuitous and erroneous restriction of the Rock case 'to its precise facts,' and so I dissent.
The question is not whether one who has obtained an employee status with a railroad by a flagrant fraud may maintain an action to recover for injuries willfully or negligently inflicted upon him under, and subject to the conditions and defenses imposed by, the laws of the State in which the casualty occurred. Of course he may. His fraud, however flagrant, would not give the railroad a license to injure him. Rather the question is whether, despite his flagrant fraud in procuring the employee status, he may have the special benefits, and freedom from the normal defenses, given by Congress in the Federal Employers' Liability Act to one who has honestly acquired the status of and is truly an employee of a railroad. I think Congress did not intend to give those special benefits to a person who has acquired a putative employment relationship with a railroad by flagrant fraud, whether that fraud falls within the 'precise facts' of the Rock case or within any of the myriad variations thereof.
While the fraud that induced the putative employment relationship in the Rock case was so clear that this Court was able to and did determine the question as one of law, and the somewhat less compelling evidence of fraud in this case does not legally require a like result, that case does stand for the age-old and sound proposition that fraud in the inducement of a contract vitiates the contract. I cannot agree to a repudiation of that principle.
Irrespective of its legally clear fraudulent facts, the fundamental issue in the Rock case was 'whether, notwithstanding the means by which he got employment * * * (, petitioner) may maintain an action under the Federal Employers' Liability Act.' 279 U.S., at 413, 49 S.Ct., at 365. The same principle is involved here. Today, much as at the time of the Rock case, that 'Act abrogates the fellow-servant rule (and) restricts the defenses of contributory negligence and assumption of rick,' id., 279 U.S. at 413, 49 S.Ct., at 365, yet here, as there, petitioner 'in this action seeks, in virtue of its provisions and despite the rules of the common law, to hold (the railroad) liable for negligence of his fellow servants and notwithstanding his own negligence may have contributed to cause his injuries.' Ibid. Quite explicitly, Congress conferred the special remedies of that Act only upon those who occupy the status of employee. Surely that status, within the meaning of the Act, cannot be created by flagrant fraud, whether that fraud does or does not fall within the 'precise facts' of the Rock case. Today, no less than at the time of the Rock case, '(t)he carriers owe a duty to their patrons (and to the public) as well as to those engaged in the operation of their railroads to take care * * * to exclude the unfit from their service. The enforcement of the Act is calculated to stimulate them to proper performance of that duty.' 279 U.S., at 413-414, 49 S.Ct., at 365. One who fraudulently obstructs the discharge of that duty surely cannot be permitted to profit from his own wrong. These are the underlying principles of the Rock case, and I submit that they are sound.
Even though the evidence of petitioner's fraud in procuring the putative employment relationship here may not be sufficiently clear to enable the Court to declare it as a matter of law, and hence the issue must be submitted to the jury, surely the jury could find, on proper and sufficient evidence, that petitioner procured the putative employment relationship by fraud; and, since fraud in the inducement of the contract vitiates the contract, such a finding would establish that petitioner never, in truth, acquired the employment status which Congress intended to protect by the extraordinary provisions of the Act. Otherwise, '(t)he deception by which (petitioner may have) secured employment (would) set at naught the carrier's reasonable rule and practice established to promote the safety of (the public, its patrons and its) employees and to protect commerce.' Such fraud would directly oppose 'the public interest because calculated to embarrass and hinder the carrier in the performance of its duties and to defeat important purposes sought to be advanced by the Act.' 279 U.S., at 414, 49 S.Ct., at 365.
Only a fair measure of simple honesty is involved. Surely, Congress contemplated and expected that such would be necessary to create the status it was surrounding with these extraordinary rights.
Although the principles of the Rock case do not legally require a like result in this case, they properly do permit a jury, rightly instructed, to find, upon the aggravated evidence that so warrants, that the putative employment was induced by fraud. And if the jury should so find, it would follow that, in truth, the petitioner never did acquire and occupy an employee status within the meaning of the Act. This is but a simple application of the surely still valid principle that one may not profit from his own wrong. I think there is no call or reason here to tamper with the sound underlying principles of the Rock case.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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