Still v. Norfolk & Western Railway Company

PETITIONER:Still
RESPONDENT:Norfolk & Western Railway Company
LOCATION:Herricks School District

DOCKET NO.: 48
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 368 US 35 (1961)
ARGUED: Oct 19, 1961
DECIDED: Nov 13, 1961

Facts of the case

Question

Audio Transcription for Oral Argument – October 19, 1961 in Still v. Norfolk & Western Railway Company

Earl Warren:

Very well, Number 48, Carl Still, Petitioner, versus Norfolk and Western Railway Company.

Mr. Sachs.

Sidney S. Sachs:

May it please the Court.

This is a proceeding under the Federal Employers’ Liability Act which culminated by the direction of a verdict by the trial judge on the ground that the employee who had sued for his personal injuries had misrepresented as principally his physical condition when he procured employment seven years before this accident happened.

There are two questions which are presented to the Court.

The first is one which has been before the Court many times and which we will not argue unless asked to do so.

It is the question as to whether the evidence was of such a nature as to justify the courts depriving this man of his right to jury trial under the Act.

The issue on which he ruled was fraud.

It is elementary of course that in order to establish that defense, the respondent had to show clearly that the employee had falsely misrepresented.

Material facts with intention to deceive the railroad that in fact the railroad had relied on his misrepresentations and that it had been reasonable in so relying.

This record is replete with inferences to be drawn from the evidence.

The petitioner denied that he had a fraudulent intention.

As to each of those elements and the sub-elements within each of them, there were questions for the jury under the principles which this Court had enumerate — has enumerated.

In fact, as to two of those issues, we submit, that the only reasonable inferences were favorable to the petitioner and in fact therefore, as to this one issue, there should have been a directed verdict in his favor.

The novel question which this case presents is whether the defense of fraud in a case such as this, states a valid defense in any case, in any event.

This man briefly stating the facts which relate to that point was 24 years old when he was employed on July 24th, 1951.

He was employed at Bluefield, West Virginia.

The record shows that he filed a written application on that day, on the form provided by the respondent.

On that day and apparently on the morning of the next day, he was physically examined by the respondent’s medical examiner.

He answered all the questions on the application.

He gave references.

He gave the name for example of a veteran’s administration — of a doctor in Bluefield, a town of 20,000, who examined for the veteran’s administration.

The only investigation conducted by the respondent consisted of the medical examination which each — which its examiner gave the petitioner.

That examiner said that it was a thorough examination.

He also said that at that time he was — he had more than he could do.

He was crowded and had more than he could do.

There was in effect at the time of this application in 1951 a rule which is standard apparently among in the railroad industry and has been before this Court before, which — which stated that, “Applications for employment will be accepted or rejected within 30 days.

If not notified within 30 days, applicant will be considered as accepted.”

As I have said, the respondent made no investigation whatsoever of this applicant.

It did not even ask him to produce his certificate of honorable discharge from the service.

Sidney S. Sachs:

May I digress just for one moment to state a fact that I should have stated.

The critical omission which the respondent complains of was a low-back condition known as “spondylolisthesis” which the petitioner had for many years which apparently was congenital.

It was marked by a depression in his lower back which was visible to an examining doctor.

William O. Douglas:

Do you mean a spondylolisthesis is visible to external view?

Sidney S. Sachs:

I do not mean sir that that is true in every case, but this record shows that in this case there was evidence of it.

The testimony was that frequently the condition is marked — it is indicated by an extreme Lordosis or some kind of a depression in the lower back which is — which indicates the ailment and at least is sufficient to awaken the suspicions of an examining doctor who then certainly should procure an x-ray to confirm it.

The — these are the essential.

I have given you the essential facts, I believe, which relate to this defense of fraud.

The trial court held as the respondent claims that this man was not an employee within the meaning of the Federal Employers’ Liability Act and was not entitled to the protection of that Act.

The decision of this question really commences with the decision of this Court in Minneapolis, and — Minneapolis, St. Pete — St. Paul & Sault Ste. Marie Railroad Company versus Rock, which was decided in 1929 by this Court.

In that case a man named Joe — the facts there, it’s important to understand those facts in order to compare them to those with petitioner.

There, a man named Joe Rock applied for work with the Railroad.

He failed the examination for a number of reasons.

A few days later using the name of John Rock, he applied again for employment.

And he obtained a friend of his, a third party entirely, to submit to the physical examination.

The medical examiner examined Joe Rock’s friend, thought he was John Rock and passed the exam — passed the application.

Joe Rock under the name John Rock then commenced to work for the Railroad and about 15 months later he was injured.

This Court reversed a verdict in favor of the petitioner in that case.

It held essentially as I understand the opinion that what Rock had done was so abhorrent to the public policy of the FELA that he — although he may have been an employee he was not an employee within the meaning of this Act and was not entitled to the protection which the Act afforded.

The Court did not discuss the case in terms of common law contract in fraud principles.

It did not discuss the basic proposition that any contract is — which is induced by fraud is voidable not void.

That a contract is void, a contract of employment for example when the employer hires one other than he thinks it is employed.

The — the nub of the opinion as I have said lie in the Court’s statement that the purpose of the Federal Employers’ Liability Act, one of the principal purposes, is to provide — is to provide safety for the employees and the public.

That the machinery for providing that safety is the — personally, one of the principle machineries at least is the personal injury action which is afforded the injured worker.

And because of the threat of that, there is a stimulus built into the Act for the railroad to be careful in its hiring procedures.

And so the Court said in that case and in another case involving the same Railroad a few years later, it paraphrased the Rock holding by saying that the nub — that the point of the Rock case was that Rock have fraudulently evaded the company’s rule requiring applicants to submit to a physical examination, that was why Rock lost.

Potter Stewart:

In the Rock case, are these facts all conceded by the plaintiff, that he had procured somebody else to take the physical examination for him?

In other words, in this case here we have, as I understand to your position, we have disputed facts as to whether or not there was any misrepresentation.

In the Rock case, were the facts, and it’s your position that at the very least, these controversies of fact ought to be submitted to a jury?

That —

Sidney S. Sachs:

That’s correct.

Potter Stewart:

— is at least one of your —

Sidney S. Sachs:

That’s our first point.

Potter Stewart:

— positions.

In the Rock case, were there disputed facts?

Sidney S. Sachs:

I think there were not, I’m not positive.

Potter Stewart:

So that in the Rock case, you would concede, at least argumentatively that in that kind of a case perhaps it was open to the Court to decide as a matter of law, when the facts were not disputed, that the plaintiff in that case had procured somebody else in fact to take his physical examination and maybe in that kind of extreme case, there was nothing for the jury.

Sidney S. Sachs:

I think that is a point, I would certainly not disagree with that point.

That does not state our principal contention as we state it.

We think there is a greater difference than that between the Rock case and this case.

Potter Stewart:

Do you think that even if the Railroad is right in its version of the facts here, that this case is different from Rock?

Sidney S. Sachs:

Absolutely, absolutely.

Potter Stewart:

Yes, yes.

Sidney S. Sachs:

For the reason, and that is the point that I’m now coming to.

The fraud, if there was a fraud and we don’t concede it, that still perpetrated on the Norfolk and Western Railroad did not keep it from examining him.

It did not set to note as this Court said in the Rock case, the railroad’s practice and procedure which it had set up in order to carry out its duty to hire competent employees.

In the Rock case, the Court said, “A Railroad has a duty to hire competent employees.”

Rock thwarted that duty.

It made it impossible in that case for the Railroad to do that.

Now, I would like to say to the Court that the Rock case has been criticized.

Today for instance, in candor, it seems to me and — it maybe said that what I say now is somewhat contrary to our position but I don’t think it is, that today, the Court might even find in the Rock case that he should have recovered because for example, fingerprints would have prevented the kind of a fraud that Rock perpetrated.

That would leave the case as one, not too distinguishable formalities, but that wasn’t discussed in the Rock case and therefore in our case we come, I submit, clearly within the basic rule that there was nothing more here than — if you concede what we don’t concede, than a fraud in the inducement which possibly gave the Railroad the right to fire Still, but not to deprive him of his protection as an employee.

I may say to Your Honors that in December 1959, following the trial of this case, there was a hearing pursuant to the terms of the original contract in which he was fired for the misrepresentations which are the subject matter of this case.

I would like to make one additional point, and that is that unless the Court finds that the defense raised in this case, this fraud defense, is inappropriate in such a situation, the result will be to thwart the very public policy which the Court relied upon in ruling as it did in the Rock case.

Because if any misrepresentation, easily discoverable at the time of hiring is to be allowed to the Railroad as a defense, when an injury occurs years after, an employee has undertaken his work with the Railroad, the only result can be to generate a feeling of confidence, a laxity if you will, in the hiring procedures, which the railroad will follow.

Therefore, we submit that the — the basic policy of the FELA calls of a decision in the petitioner’s favor on both these issues — on the second issue, we think we’re right also in the first.

Earl Warren:

May I ask you this question Mr. Sachs.

As I understand it, he worked from 1951 to 1956 and under this original employment —

Sidney S. Sachs:

That’s correct.

Earl Warren:

— and then he was dismissed for some cause having nothing to do with his physical condition.

Earl Warren:

He was out a year and so on, and he came back and worked a year or so, and then was injured.

Sidney S. Sachs:

That’s —

Earl Warren:

Now, did he have — did they give him any physical examination?

Were there any other representations when they brought him back the second time?

Sidney S. Sachs:

The precise answer to your question is that they examined his — that they say they examined his eyes only.

Earl Warren:

Exactly.

Sidney S. Sachs:

He says they examined him.

The record shows that under their procedures, they were supposed to examine his eyes and his hearing.

And a fair statement Your Honor of our point which you have paraphrased would compel us to say that he was dismissed in 1956 for deserting his crew.

Then, he was reinstated in November 1957 with loss of vacation rights and loss of pay, but not loss of seniority.

The respondent claims therefore that that was a continuation of the original employment, we say it was not.

Earl Warren:

Do you believe that it affects the case in — as it comes to us in some way or other?

Sidney S. Sachs:

We believe that that affects the case on our first proposition because if he was rehired in 1957, independent of his 1951 application, then it cannot be said that when he was injured in January 1958, his employment existed because the Railroad was relying on his false 1951 statements.

Thank you.

Earl Warren:

Mr. Sanders.

Joseph M. Sanders:

If the Court please?

This case, if the Court please, is unlike most of the FELA cases in that in this case the facts were substantially un-contradicted.

It’s an unusual thing, but that is a fact.

Our friend, I think will agree with me except on one point, he will say that there was a conflict in the evidence in this.

He will say that when the plaintiff, the petitioner applied for employment to the respondent in 1951, and after he had filled out himself and signed a written application for employment, he was examined by the medical examiner for the respondent.

The medical examiner testified that he inquired, asked the petitioner many questions appearing on the physical examination card, and recorded those answers as written, and that card is in evidence in the case, but here is the point.

The petitioner at that time at one place in his testimony denied that the medical examiner asked him any questions, whatever.

However, in other parts of his testimony, it is entirely clear that the medical examiner did interrogate him, did ask him questions.

He stated he did not remember what the conversation was.

But it must be remembered that he was examined in July of 1951 by the medical examiner and this case was not tried and until October of 1959 more than eight years following that examination.

Then, I make this statement and I make it advisedly, I submit that when the petitioner testifies that he remembered the conversation occurring and remember that no conversation did occur at that examination which he successfully passed, that when he testified that he remembered that no questions were asked him by the medical examiner on that occasion, I submit that that testimony is incredible and unworthy of belief.

Earl Warren:

What did the — what did the examining physician say about that?

Joseph M. Sanders:

The examining physician testified of course, Your Honor, as he should have testified, as anybody.

He said, “I have no recollection of the examination, I must rely on my record.”

And had he said anything else, I think I would have been embarrassed because I would have known or I certainly would have thought that he was telling an untruth, then I think that most anyone else would come to that conclusion, medical examiner get on understand and testified that he remembered the conversation that occurred when he gave a physical examination eight years ago, when nothing unusual occurred at the examination to impress it on his memory, I would have very serious doubts about the credibility of that medical examiner.

Joseph M. Sanders:

(Inaudible) —

Earl Warren:

But of course a jury might be able to find that there would be a difference between the doctor remembering and the employee remembering because of the fact that the employee was examined once and the doctor probably examined thousands of people in that regard.

Joseph M. Sanders:

Your Honor —

Earl Warren:

I’m not saying its true, but I just say a jury might —

Joseph M. Sanders:

Yes.

I —

Earl Warren:

— couldn’t a jury consider that.

Joseph M. Sanders:

I don’t believe that’s true under the circumstances of this case.

In other words, I submit that this is a reasonable and logical proposition.

I don’t believe — of course my opinion is immaterial, but I submit that no person regardless of his intellect or his memory, who took an examination say for life insurance eight years ago and successfully passed that examination, and nothing unusual occurred at that examination to impress that on his memory, I would say that it is incredible for him to attempt to testify what was said by the medical examiner and what was said by him during that examination.

And not only that, within this case, we’re not dealing with a man with that kind of a memory because he himself admits and testified at one place where he said, “I can hardly remember 1958.

I can hardly remember what happened in 1958.”

He had been employed on two previous occasions by respondent; one time in 1943 and one time in 1948, he passed those examinations.

He made the same false representations on those occasions that he made in 1951 and that isn’t denied.

He simply says, “I don’t remember being examined in 1943 and 1948,” but in view of those things, first, the fact that he was testifying to an occurrence that occurred more than eight years before the trial and the second, he has admitted lack of memory, his very poor memory, I submit sincerely that that type of evidence is incredible and I know the courts in many instances say that testimony is incredible and that the jury is not justified in believing incredible testimony and the court shouldn’t permit a jury to believe him.

But, with that exception, my friend will say that that is a conflict.

I say it isn’t.

It’s properly analyzed and considered.

There is no substantial conflict in the testimony in this case and that’s unusual.

Now, when the petitioner, he had this condition of his back, the spondylolisthesis, which is probably congenital, he was inducted into the army in 1945 and he was examined by an army doctor and he passed.

So apparently, the army doctor didn’t discover this condition.

He was taken into the army.

He served for a few months and then he went to the hospital complaining of severe pain in his back and subsequently, he was given a medical discharge.

It was found that he could not be rehabilitated to perform military service.

He was given a medical discharge in January 1946.

Prior to that time, he’d also been involved in an automobile accident and injured his back.

And in many places in his testimony, he attributed his discharge from the army, his medical discharge, to that back injury.

He had also been afflicted with seriously disabling rheumatism for many years.

That was the situation when he made application to the respondent for employment as a yard breaker and I might add this, that a year or two prior to that, he had been employed by another coal company as a mine breaker and had had to quit work on account of a physical disability, worked about a month.

Then he makes application for employment to respondent as a yard breaker.

Earl Warren:

May I ask what his work record was with the comp — with your company over the eight years between the time he first came (Inaudible) —

Joseph M. Sanders:

Yes, yes, that’s very important.

He worked from —

Earl Warren:

No, I meant his physical condition during the time —

Joseph M. Sanders:

Oh, well —

Earl Warren:

— he worked there.

He was — I understood he was there about five years, was off a year, and then after a —

Joseph M. Sanders:

That’s —

Earl Warren:

— year and a half or so —

Joseph M. Sanders:

He came there, he started in July of 1951, and as a — and he was — about 1956, I believe it was in October, he deserted his crew and he was dismissed from service.

The Brotherhood of Railroad Trainmen —

Potter Stewart:

What’s that — what does that mean in his employment, deserting his crew, sounds like a military offense?

Joseph M. Sanders:

Well, I’m not quite certain Mr. Justice Stewart, but I assume that he had left his crew while they were working without proper justification, I’m not sure.

Then he was —

Potter Stewart:

I was just curious, that’s not very —

Joseph M. Sanders:

That was the — that was the charge he was dismissed.

Earl Warren:

Did he have any illness record in those five years?

Joseph M. Sanders:

Oh, yes.

But —

Earl Warren:

(Inaudible) —

Joseph M. Sanders:

And I’ll reach that fact —

Earl Warren:

Yes.

Joseph M. Sanders:

He deserted his crew and he was dismissed and was off approximately a year, and then he was reinstated.

His — the Brotherhood of Railroad Trainmen interceded for him and he was reinstated and the letter under which he was reinstated was written by the assistant — by the general manager of respondent to the Chairman of the Brotherhood.

It provided that he would be reinstated.

He would lose his backpay and he would only be examined as to his eyes and his hearing.

He was not required to file another application.

He didn’t file it.

He was reinstated with his seniority rights unimpaired and it was shown without any contradiction that at the time that his seniority dated from July 24, 1951, I submit that that’s when his employment dated from.

Earl Warren:

Yes.

Joseph M. Sanders:

That’s our position in the case.

Earl Warren:

Well what was — what was the condition of his health and his ability to work during those five years, from 1951 to 1956?

Joseph M. Sanders:

That is shown very graphically if the Court please, in a record which we — that’s Defendant’s Exhibit Number 29, record — page 506 of the record, Defendant’s Exhibit 29.

Now, in one column, that covers the entire period from July 19, 1951 to February the 2nd, 1958 when he marked off on the account of the injury which he says that he sustained.

I think if the Court will examine, the right hand column, on the reason for absence that practically every month during that entire period, the petitioner was off from work many times on account of sickness.

And was off on — on many occasions, this — the record shows off by permission.

Now, this record was compiled by one of the respondent’s clerks.

From the original records of respondent, which were produced in court and were examined by petitioner’s attorneys at the time.

There’s no reason to doubt the accuracy of that record.

I will not take time to go through that, but I think that all the court will have to do is to examine this column on the reason for absence, and you will come to the conclusion necessarily that there was something radically wrong with the petitioner during that entire time.

Hugo L. Black:

I suppose the company came to that conclusion long before they entered this record.

Joseph M. Sanders:

The evidence is, on that Your Honor, from several of the representatives of the respondent that they had no reason to believe that the petitioner was not physically fit.

Hugo L. Black:

But — but what’s with all this record (Inaudible)?

I understood you to say that we could look at it and see if that is (Inaudible)

Joseph M. Sanders:

That’s — I say, that’s what the record shows —

Hugo L. Black:

But (Voice Overlap) —

Joseph M. Sanders:

— that he was off sick —

Hugo L. Black:

(Inaudible) one thing about this?

Joseph M. Sanders:

Sir?

Hugo L. Black:

The records shows the company didn’t know anything about this list of (Inaudible)?

Joseph M. Sanders:

Several of a — for instance, Dr. Traft, the medical examiner testified he didn’t know it and the terminal train master testified that he didn’t know it.

He was not in (Voice Overlap) —

Hugo L. Black:

What was this made out from?

What was this made out from reasons for evidence?

Where was it copied from?

Joseph M. Sanders:

From the original records of the —

Hugo L. Black:

Whose records?

Joseph M. Sanders:

The railway company’s records.

Hugo L. Black:

The railway company’s records.

Joseph M. Sanders:

Yes sir.

Hugo L. Black:

Day to day?

Joseph M. Sanders:

Yes, sir.

Hugo L. Black:

And you say they didn’t know about it?

Joseph M. Sanders:

The witnesses who testified — who testified at the trial testified that they have no reason to believe that he was not physically fit to perform the duties of a railyard breaker.

That was their testimony, sir.

Hugo L. Black:

Well then, there’s no inference that we can draw from this then is it that you would say that the company couldn’t draw it.

Joseph M. Sanders:

I think you can draw this inference, that there was some reason he didn’t explain why he was off from work on account of sickness.

As a matter of fact, that petitioner testified repeatedly that he never missed a day on account of sickness.

That he was strong and able bodied, healthy, and never missed a day on account of sickness, he testified to that repeatedly.

Now, I submit that’s conclusively contradicted by the records, the railway company here that he did miss that work.

Hugo L. Black:

It’s conclusively contradicted you say because the company knew about it and had the record of it and has it on file all the time.

Joseph M. Sanders:

That’s right.

Hugo L. Black:

He kept him in employment.

That is, I gather, he was not an employee, he was just there.

Joseph M. Sanders:

That is certainly true —

Earl Warren:

And they reemployed him after he was off for a year, after that record.

Joseph M. Sanders:

They didn’t reemploy him —

Earl Warren:

But they put him back to work and —

Joseph M. Sanders:

Well, they put him back to work —

Earl Warren:

That’s (Voice Overlap) — yes.

Joseph M. Sanders:

— because — yes, they reinstated him.

Earl Warren:

Yes.

Joseph M. Sanders:

But I submit he was not rehired as my friend to contends.

Earl Warren:

Well I didn’t — I didn’t used it in that — in that sense, but I — but I wonder if this has any bearing on it.

He came back in November 1956 and worked until February 1958, and in that year and four months, he was only off three days.

Once by permission, once by — for sickness with a sore throat, and once just off sick in a year and four months after he was re — he came back.

Joseph M. Sanders:

Well, I certainly assume Your Honor has read it correctly.

I assume —

Earl Warren:

Well, I — I’ve just seen it, it’s on the last page —

Joseph M. Sanders:

(Inaudible)

Earl Warren:

— 509, and it’s —

Joseph M. Sanders:

Yes.

Earl Warren:

It’s right at the very end, rather at the very end of the exhibit here.

That’s what it — that’s what it shows.

Joseph M. Sanders:

I merely call attention to that and I placed it in evidence in the Circuit Court for the reason that the counsel for petitioner at that time contented that here was a man that was in spite of his spondylolisthesis, and in spite of the fact that he had suffered an injury, and he’d had rheumatism, and had made these misrepresentations, yet he was physically fit.

And I think one of the — his own witnesses described him as strongest man on the railroad on that area.

So I think that that record clearly contradicts that and certainly shows that something was wrong with that man.

Hugo L. Black:

May I ask you, I’m not sure about it, but suppose the railroad has filed an application to remove him from his employment, cancelled the original contract on the ground that its fraud (Voice Overlap) —

Joseph M. Sanders:

On the grounds —

Hugo L. Black:

— five or six years after he had made these alleged fraudulent decisions.

Joseph M. Sanders:

Yes.

Hugo L. Black:

Does the statute limitations or the principles of (Inaudible) or negligence is raised had anything to do with this case?

Joseph M. Sanders:

Not that I know of, sir.

Hugo L. Black:

(Inaudible)

Joseph M. Sanders:

The application which he signed at the bottom provided in substance that if he did make false answers to the questions, that he could be discharged even without a hearing.

Hugo L. Black:

Well, you could have discharged him at any time?

Joseph M. Sanders:

Well —

Hugo L. Black:

They didn’t have to discharge him as I gather, because he wasn’t employed.

Joseph M. Sanders:

They could have discharged him — I mean, that’s what the application said, but we who know about collective bargaining agreements know that it could not have been done without a hearing and without very considerable difficulty.

Earl Warren:

He was there eight years on the job.

Suppose he’d been there 10 years more, and that then become injured, would the fraud that you claim hold over that long, do you think?

Joseph M. Sanders:

Well, that’s increasing it —

Earl Warren:

Well, it makes him (Voice Overlap) —

Joseph M. Sanders:

— in a good many years.

Your Honor, I am inclined to believe it would and I’ll tell you why.

Earl Warren:

Yes.

Joseph M. Sanders:

This condition that he had, the spondylolisthesis, many — good many doctors testified in this case, four or five doctors including the petitioners’ own attending physician, and they said that with — a man in this condition wasn’t physically fit for employment as a yard breaker.

But that’s the uncontradicted testimony in this case and they said that a man in this condition could very easily be injured and he could develop a very bad condition there in his back even without any injury.

So that in their opinion, that no medical examiner would be — would be justified in approving this man for work as a yard breaker.

And if there’s one thing that the evidence in this case shows, I think it is that he was not physically fit.

Joseph M. Sanders:

It’s true that he testified and others testified that he did the work of a yard breaker, but he was not physically fit for employment as a yard breaker.

Hugo L. Black:

How did he get hurt?

Joseph M. Sanders:

Pardon me, sir?

Hugo L. Black:

How did he get hurt?

Joseph M. Sanders:

I have just a minute, my time is — I would like to tell the Court that.

He was injured in the switching operation.

A car, the end car — they were taking, breaking up a train and taking it down to what they called a classification tracks.

This car was going to the shop track.

The petitioner got on this car and got up on the break step.

The train was moving very slowly, not over three or four miles an hour and that is the uncontradicted testimony.

This car was cut off.

It drifted by gravity going down towards the west, towards the classification track.

It was followed very slowly by the train which didn’t stop.

It was — it wasn’t intended to stop the train.

For some reason, probably the fact that the petitioner applied the break on the car which he was riding, and that’s shown by his own testimony, the train which was gradually following that car overtook it and coupled to it, and he says that he was thrown up against the car and sustained this injury.

But I might point this out, that if as the uncontradicted evidence shows, this train was traveling only at a speed of three to four miles an hour as it followed this car on down the track and of course, the car was moving in the same direction, that when that coupling occurred, the impact must have been slight indeed.

Hugo L. Black:

Whether it was a large or small impact, did his back have anything to do with it?

Joseph M. Sanders:

I didn’t quite understand that.

Hugo L. Black:

Whether it was a large impact or a small impact, did this so-called spendecula or sponocity or whatever it was have anything to do with his accident?

Joseph M. Sanders:

Well —

Hugo L. Black:

Does the evidence show that?

Joseph M. Sanders:

The evidence shows this that he remained on this car until it stopped and he climbed down off the car unassisted and he remained on the job the all night.

Hugo L. Black:

Do you mean he wasn’t hurt?

Joseph M. Sanders:

Your Honor, that — my opinion is not involved here, but I think others could come to that same opinion, there wasn’t any accident at all.

Charles E. Whittaker:

(Inaudible)

Hugo L. Black:

I see.

Well, then in fact, he couldn’t had much to do with it, could he?

Joseph M. Sanders:

It’s exactly right.

What I started to say —

Charles E. Whittaker:

(Inaudible)

Joseph M. Sanders:

— he was examined the next day by an orthopedic surgeon and at that time, there were no bruises or marks or contusions on his body, whatever and he was making no complaint whatever of his back.

Charles E. Whittaker:

He was making no complaint of his back?

Joseph M. Sanders:

None, whatever to the orthopedic surgeon that examined him the following day, none whatever.

Charles E. Whittaker:

Did his back — did he in his suit for damages here complain of an injury to his back?

Joseph M. Sanders:

Oh, it is, yes.

It is a suit for damages.

He claimed that he was knocked off of this car, knocked completely off of the car, which wasn’t true and he fell out and he is back on coupler and had this — that this spondylolisthesis was caused in that accident.

Of course, the spondylolisthesis is simply a displacement forward of the fifth lumbar vertebra over the sacrum.

Charles E. Whittaker:

Now, what is it?

Can you explain a little bit more definitely, what is a spondylolisthesis?

Joseph M. Sanders:

It is a displacement forward of the fifth lumbar vertebra over the sacrum.

Charles E. Whittaker:

This is —

Joseph M. Sanders:

(Inaudible)

Charles E. Whittaker:

— of the fifth lumbar forward —

Joseph M. Sanders:

Yes.

Charles E. Whittaker:

— off the sacrum, is that —

Joseph M. Sanders:

About half —

Charles E. Whittaker:

Yes.

Joseph M. Sanders:

About half —

Charles E. Whittaker:

I understand it now.

Joseph M. Sanders:

— of the fifth lumbar vertebra, it was pushed forward over the sacrum and in his suit, he contented that that is the condition that he received when he was injured.

Hugo L. Black:

By a certain jury?

Joseph M. Sanders:

Yes, sir.

Hugo L. Black:

And that’s what the jury would have to pass on if this case were sent back, isn’t it, those facts?

Joseph M. Sanders:

There is one fact, whether there was any accident, whether there was any injury, because the x-ray reports which we produced taken when he was in the army and by the veteran’s administration show that the condition of his spine, when he was in the army was exactly the same condition that it was in at the time of this trial.

Hugo L. Black:

All that would be admissible in evidence if the case was tried?

Joseph M. Sanders:

Oh, yes.

Oh yes.

Hugo L. Black:

Somebody had to pass on the facts?

Joseph M. Sanders:

Oh, yes, that’s true.

Hugo L. Black:

Which they haven’t yet done.

Joseph M. Sanders:

That’s right.

They haven’t passed on that because the court did not indicate — did not — it didn’t go to the jury of course, and that would be a jury issue if this case goes back, thank you, gentlemen.

Earl Warren:

Very well.

Mr. Sachs.

Sidney S. Sachs:

May I say briefly if it please the Court.

There are just — there’s as much conflict in this evidence as there is between counsel and me as to whether there is a conflict and that in other words is a complete conflict of evidence as to whether there was fraud and how the accident happened and what the damages where?

This — I think that I should say Your Honor, to correct a misapprehension that I think may exist in your mind that the period that he worked after he came back following his dismissal was from November 1957 till January 1958.

It was a short time.

(Inaudible)

Sidney S. Sachs:

Yes.

But his work record is of significance.

There’s — and in the — what counsel has pointed to as frequent signing off for sick is of significance.

There’s no evidence to establish what the practice was.

It maybe assumed that on the railroads as in many government offices and other offices, people sign off sick when they’re not sick.

But if they don’t do that, then certainly, this list — this constant stream of checking off sick was warning to this employer that something was wrong and adds to the argument we have that it knew or should have known that this man was not well.

We don’t concede that’s a fact because the evidence was by his fellow employees and his superiors that in fact, he was one of the most strongest, one of the strongest and most able breaker while he worked.

Thank you Your Honor.

Earl Warren:

Thank you.