Still v. Norfolk & Western Railway Company/Concurrence Frankfurter

Mr. Justice FRANKFURTER, concurring in a judgment for a new trial.

The issue before the Court in this case is not the sufficiency of the evidence to sustain a verdict for or against an employee claiming recovery for injuries under the Federal Employers' Liability Act, 45 U.S.C. §§ 51-58, 45 U.S.C.A. §§ 51 58. It presents the question whether a misrepresentation by the petitioner regarding his health at the time the railroad hired him, bars recovery as a matter of law in view of our decision in Minneapolis, St. P. & S. Ste. M.R. Co. v. Rock, 279 U.S. 410, 49 S.Ct. 363, 73 L.Ed. 766. That decision held the statutory remedies unavailable because, as its author pithily stated it on two occasions, Rock 'was an impostor.' 279 U.S. at 412, 49 S.Ct. at 364; Minneapolis, St. P. & S. Ste. M.R. Co. v. Borum, 286 U.S. 447, 450, 52 S.Ct. 612, 76 L.Ed. 1218.

The Court does not now overrule Rock but says that it 'must be limited to its precise facts.' I take it this statement refers to the facts relevant to the result in that case; it does not mean that the plaintiff must be named Rock.

The scope of the Rock decision was defined in Borum, a case on which the Court's opinion now relies. The latter case came before this Court for review of the state court's refusal to set aside an arbitral finding that the plaintiff had been an employee. The judgment was affirmed on the basis that the evidence did not require a finding that deceit in obtaining employment had materially prejudiced the employer's efforts to select fit employees. The Court did not hold that the question of fraud in obtaining employment was improperly submitted to the trier of fact.

I would similarly dispose of this case; that is, upon a new trial the issue should not be withdrawn from the jury but submitted to it on the principle which governed the Borum case, supra.

Mr. Justice WHITTAKER, dissenting.