The Second Division consisted of the regular members and in
addition Referee Carl R. Schedler when the award was rendered.
SYSTEM FEDERATION NO. 42, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO. (Carmen)
DISPUTE: CLAIM OF EMPLOYES: (1) That under the controlling agreement, Car Repairer Helper P. Q. Todd has been denied his contractual service rights since March 29, 1955.
(2) That he be restored to service with seniority rights unimpaired and compensated for all time lost at the applicable rate retroactive to the aforementioned date.
EMPLOYES' STATEMENT OF FACTS: According to the published seniority rosters, P. Q. Todd was first employed in the mechanical department at Waycross, Georgia as a blacksmith helper with a seniority date of 9/13/45. He is so shown on each succeeding annually published roster through 1950.
In December 1950, he applied for and was given employment in the carmen's craft as car repairer helper and established a seniority date of 12/13/50. Todd's name is omitted on the blacksmith helper classification on the 1951 roster and appears on the carmen's roster under the classification of car repairer helper and so appears on succeeding rosters including the January 1, 1955 roster. The 1953 roster indicates he was upgraded to carman 10/9/52 under the provisions of Rule 406. His name is entirely omitted on the current 1956 roster.
On the morning of October 13, 1953, while working as upgraded carman, Mr. Todd received a personal injury to his back while on duty. He reported to the ACL Hospital and was examined by Dr. Bradley, received first aid and was permitted to continue in service on light duty. Between October 13 and October 30, Todd worked intermittently and was confined to the hospital for as much as a week-October 18-24-during which time he was treated by the nurses in the hospital except for one visit by an outside physician (Dr. Victor) on Friday afternoon, October 20, when Todd was examined and treatment prescribed. After being discharged October 24, Todd again attempted to return to work on light duty but, because of the continued aggravation of the injury, he checked out on October 30. Since
The decision of the District Court was affirmed on appeal in Scarano v. Central R. Co., of New Jersey, 203 F. 2d 510 (C.A. 3rd 1953). Speaking for the court, Judge Hastie concluded:
To the same effect, see Buberle v. Southern Pacific, 94 F. Supp. 11 (D.C. Calif. 1950); Pendleton v. Southern Pacific, 21 L.C. 66,883 and Wallace v. Southern Pacific, 21 L.C. 66,882. These decisions were all based on the principle of equitable estoppel and have not been overruled or modified by subsequent court decisions.
The law is well established by awards of the National Railroad Adjustment Board and by court decisions that when an employe claims permanent and total disability and recovers judgment on that theory, carrier is under no obligation to return him to service. In this claim Mr. Todd brought suit against carrier and presented testimony and other evidence to show that he was permanently disabled and unable to perform his regularly assigned duties. As a result of the suit Mr. Todd was awarded a jury verdict of $10,000 which has been satisfied by the carrier. Notwithstanding his allegations at the trial, Mr. Todd applied for return to the service of carrier within 60 days after he was awarded judgment. In the words of the Federal Court in the Scarano suit, it would be "highly inequitable, unconscionable and a travesty on justice to permit a plaintiff . . . after he and his medical expert have presented a case of total and permanent disability to a jury and thereon recovered a very substantial verdict to disavow those sworn statements and contentions." Carrier asserts that this claim is utterly without merit and hould be denied by the Board.
FINDINGS: The Second Division of the Adjustment Board, upon the Whole record and all the evidence, finds that: 250 0-13 497
his legal rights to bring an action against his employer, based on a right which arose out of the employment relationship. We find nothing in the agreement denying an employe the right to pursue a remedy in the courts for an alleged injury sustained during the course of his employment. We believe any such arrangement, by agreement or otherwise, would tend to abridge a civil right belonging to all citizens. The right to appeal to the courts for the redress of wrongs is a fixed part of our way of life. We cannot sustain any action which would penalize the claimant for exercising that right.
In this case the majority have done, administratively, what the courts in both state and federal jurisdictions have soundly refused to do. Court decisions, in this same case posture, have held that a railroad worker who has by proper sworn testimony through competent medical prognosis disclaimed his physical ability to resume work in his regular occupation is thereafter flatly estopped from disclaiming his disclaimer. But the majority say he can. This award is wrong in its opposition to law.
This is not a discipline case. The claim itself does not allege discipline of claimant. The majority, in their findings of fact, prior to this erroneous administrative conclusion, do not find the claimant was disciplined. They say, correctly in this respect, that the carrier "declined to restore him to service." This was the "service" he told the court and the jury he would never be able to do. He was answering $50,000 questions when he offered that story; two of them, for he sued for $100,000, laying his ad damnum in two counts of $50,000 each.
From examination of the record the plaintiff stated in his complaint (offered in evidence by both the employes and the carrier) that he sued the carrier, and "alleges"-in each of two counts-after a recital of the nature of his injury and damages, that "Such injuries may be permanent in character." He demanded judgment in the amount of $50,000 on each count. His allegations were no more or less than a statement of the facts as he believed them to be, and which he hoped to prove. His allegation that his "injuries may be permanent in character" was no less a statement of fact and hoped for proof than any other statement in his allegations.
Plaintiff then sought to establish his allegations by evidence. At the trial he testified that his back hurt, that if he walked much it hurt, that if he rode much it hurt, that he couldn't lift, that he had difficulty bending over, and that he had not done any work. He then offered the testimony of his doctor as a medical expert to establish the facts he had alleged he could prove.
His doctor testified unequivocally, in response to question by plaintiff's attorney, "Can you tell us, Doctor, what effect the injury to his back is going to have on his ability to return to work?" that-
and to question, "do you think that he would be able to return to doing any work requiring strenuous lifting or bending, he said-
He testified further that "right now he has pain all the time. He eventually will not have it constant. It will become intermittent," and in reply to question, "How long a period of time do you think it would be intermittent pain? Just for another year?", the Doctor testified-
In summing up the case before the jury, plaintiff's attorney drew attention to his Doctor's testimony in these words:
On his evidence the plaintiff prevailed, and was awarded judgment. He is bound not only by his own statements, but as much by the statements of his witness and his counsel as if he had himself made them. His permanent disability is an established legal fact-that he would never be able to return to his former job on the railroad.
The issue presented to this Division in the claim which results in the award is solely that of estoppel.
The employes argued in their rebuttal that there is a vast difference between an injury resulting in total and permanent disability, and one which results in an injury permanent in character, and that the plaintiff's allegation was of the latter; and further, that the verdict of the jury in the amount of $10,000 very clearly indicated that the jury only allowed plaintiff compensation for pain and suffering and lost wages from time of injury until time of trial; that the verdict simply is not indicative of any award by the jury of any future lost wages.
No one can ever state with exactitude precisely what the verdict of a jury is "intended" to compensate plaintiff for, and this is not a matter for speculation by this Board. The very court in which the verdict was returned would not permit any attempt to do so when the jury returned it. And even if the employes' contention as to the allegation of permanent disability were conceded, as was ably stated by Referee David R. Douglass in First Division Award No. 17191, in a somewhat similar circumstance,-
Claimant in the instant case was a carman helper. That is the kind of work his doctor testified he would not be able to return to. Carman helper's work requires strenuous lifting and bending. That is the only kind of work to which the carrier could return him, because other work which would not require such physical effort, such as clerical work for example, belongs to other employes by their contract with the carrier, but this did not prevent the jury from considering plaintiff's ability to work at many other occupations.
In asserting any right to return to carrier's service as a carman, plaintiff contradicted the earlier position he had taken in court. Thus the award is completely incompatible with the doctrine of estoppel laid down in the same 2500-16
kind of case involving a railroad employe by a United States Court of Appeals in Scarano vs. Central Railroad Company of New Jersey, 107 F. Supp. 622, aff'd, 203 F. 2nd 510, which is found in II Freeman on Judgments 631 (5th ed. 1925) , as follows
With the rule of estoppel so firmly established in this railroad field by the Scarano case, above cited, the employes have correctly conceded, in their rebuttal, that "In both of these cases (Second Division Awards Nos. 1186 and 1297 the claimant claimed and sued on a basis of total and permanent disability," the doctrine applies, and on the face of the evidence hereinbefore pointed out, it is no less applicable in the award here dissented to.
For a fuller discussion of the Scarano case, see Second Division Award No. 1805 (Referee Edward F. Carter), Carrier's Position, and findings.
The award is erroneously predicated upon an after showing of physical ability. This Division can not properly concern itself with an after attempt by the now claimant to show an amazing and complete restoration of the physical powers to stoop and bend and lift at the work of his class, only two months after judgment was satisfied, the very powers that were represented at the trial as having been taken from him in his then role of plaintiff, that he would never again be able to exercise. He is certainly estopped from making any such showing by all of the principles of law denouncing inconsistent conduct by one party in dealing with another. The holding of the majority otherwise in this award is not only in error, but it is contempt of every rule of law and the almost universal statutes aimed at eliminating as far as possible false swearing.
For an able discussion of the principles involved, as well as citation of court cases and Board decisions supporting the minority view herein stated, and discussion of the illusory theories of the employes in seeking to evade the doctrine, see Dissent of Carrier Members in First Division Award No. 17645, in which the majority of that Division erred in the same manner and to the same degree as in the instant claim, and Supporting Opinion in First Division Award No. 17191.
That generalizations such as are indulged in in the closing paragraph of the findings are, to say the least, undesirable, is generally conceded, but generalizations without any foundation in the contentions of either-party as in this case are so inimical to the interests of the National Railroad Adjustment Board in the orderly disposition of disputes as to require no discussion.
The award is of no probative or precedent value, not only because it is at odds with basic text law on the subject of Estoppel and federal and state case law, but because it is contrary to legally sound awards of this and other Divisions of the Board, which present by far the better view. See especially Second Division 1186, 1297, 1579, 1672, 1805; First Division 6479, 6483, 15543, 16819, 17191; Third Division 6215, 6740.
The award stands in error of reversible character for the foregoing reasons, and in short:
(3) It generalizes and puts in false issue the civil right of the claimant employe to bring legal action against his employer on the mere assertion by the employes that claimant violated no law, rule or valid regulations prohibiting such action, notwithstanding that the employes in their ex parte submission or reuttal did not even charge that carrier so dismissed him, nor was there any contention by the carrier that it can deny employment to claimant or any other employe merely because such employe files suit against the carrier.