Gauthier v. Atchison, Topeka & Santa Fe Railway Co.
186 N.W. 619
Wis.
1922
Check Treatment

First cause of action.

Jones, J.

Thе first count in the complaint must be regarded as an action brought to recover for personal injury under the federal Employers’ Liability Act. The cоmplaint claims damages for personal injury under that act and alleges facts relied on to estop defendant from pleading the statute оf limitations.

The section involved is as follows:

“Sec. 6. That no action shall be maintained under this act unless commenced within two years from the day the cause of action acсrued.” 8 Fed. Stats. Ann. (2d ed.) p. 1369.

This section is very brief and perfectly clear in its meaning. The act of Congress giving rights of action to employees gives to them nеw and important rights and imposes new liabilities upon railroad companies. It creates liabilities where none existed before and takes аway defenses for*248merly available. Unlike ordinary statutes of limitation, this one is not merely a limitation of the remedy. The act under consideration сreates the right and specifies the conditions under which it may be enforced, and a compliance ‍‌‌‌‌‌‌‌​‌​‌​‌‌​​‌​‌‌​​​‌‌‌​​​‌​‌‌‌​​​‌​‌​​‌‌​​‌‌‍with those conditions is essential. In cases brought under this statute the decisions of the federal courts must govern, and these uniformly hold that the lapse of time not only bars the remedy but also destroys thе liability. Central Vt. R. Co. v. White, 238 U. S. 507, 35 Sup. Ct. 865 ; Atlantic Coast Line R. R. v. Burnette, 239 U. S. 199, 36 Sup. Ct. 75.

In American R. Co. v. Coronas, 230 Fed. 545, 546, it is said:

“The right granted exists only by virtue of the statute, and its scope and effect must be determined therefrom. The language of the act makes it plain that the right and correlative liability thereby established are conditional upon the bringing of the suit within two years from the day the cause of action aсcrued. The bringing of the action, therefore, within the specified time is a condition to the exercise of the right, and, if the condition is not complied with, the parties stand, with respect to the wrongful act, as though tjhe statute had not been enacted. The limitation relates, not merely to the remеdy, but to the right.”

In another case Judge Sanborn writing the opinion said:

“A statute which in itself creates a new liability, gives an action to enforce it unknown to the common law, and fixes the time within which that action mаy be commenced, is not a statute of limitations. It is a statute of creation, and the commencement .of the action within the time it fixes is an indispensable condition of the liability and of the ° action which it permits. Such a statute is an offer of an action on condition that it be commenced within the specified time. If the offer is not accepted in the only way in which it can be accepted, by a commencement of the aсtion within the specified time, the action and the right of action no longer exist, and the defendant is exempt from liability.” Partee v. St. L. & S. F. R. Co. 123 C. C. A. 292, 204 Fed. 970.

*249In construing another statute, the same rule was stated by this court in George v. C., M. & St. P. R. Co. 51 Wis. 603, 8 N. W. 374.

The decisions of this court have been in harmony with the federal decisions above cited, and in cases where it has bеen claimed that ordinary statutes of limitation ‍‌‌‌‌‌‌‌​‌​‌​‌‌​​‌​‌‌​​​‌‌‌​​​‌​‌‌‌​​​‌​‌​​‌‌​​‌‌‍have been tolled by verbal promises or by conduct it has been held that they cannot be avoidеd by showing facts that might ordinarily constitute an estoppel in pais. Williams v. J. L. Gates L. Co. 146 Wis. 55, 60, 130 N. W. 880; Boyd v. Mutual Fire Asso. 116 Wis. 155, 90 N. W. 1086, 94 N. W. 171; Pietsch v. Milbrath, 123 Wis. 647, 101 N. W. 388, 102 N. W. 342; Guile v. La Crosse G. & E. Co. 145 Wis. 157, 130 N. W. 234.

Appellant’s counsel cite Guile v. La Crosse G. & E. Co., supra, but that case declares that a person can be estopped in no other way than that prescribed by the statute, and adheres to the rule stated in the cases above cited. Appellant’s counsel also rely on O’Donnell v. State, 126 Wis. 599, 106 N. W. 18, a criminal case, but it was there held that there was no estoppel, and we do not regard the decision as one departing from the rule long ago- established in this court.

It seems clear that no error was committed by sustaining the demurrer to the first cause of action.

Second cause of action.

In this count the plaintiff claims reсovery on the ground of fraud and deceit. It is claimed that his cause of action was lost by reason of the false representations of defеndant. It is the theory of plaintiff’s counsel that defendant ‍‌‌‌‌‌‌‌​‌​‌​‌‌​​‌​‌‌​​​‌‌‌​​​‌​‌‌‌​​​‌​‌​​‌‌​​‌‌‍deprived plaintiff of his cause of action by fraudulent representations and thereby furnished а new cause of action, and that the measure of damages would be the value of the claim as it existed when the fraud was practiced.

It might be urged with some force that to sustain causes of action under such circumstances as here appear would *250lead to evasions of statutes of limitation by unscrupulous creditors or claimants and to some extent defeat the purpose-of such statutes. Without discussing the subject, we are disposed to base our decision on the ground that no facts are stated in the complaint amounting to fraudulent representations. There wаs no fiduciary relation existing between plaintiff and defendant. No device or artifice which might'induce plaintiff to postpone action is alleged. It is true that there are the allegations that defendant fraudulently represented and stated to plaintiff that it would pay and settle for the injuries rеceived and that it would be unnecessary for plaintiff to bring suit, and that plaintiff relied on such statements and neglected to commence an aсtion for two years under the act of Congress. Appellant’s counsel urge that these representations related to existing’facts, and rely on thе case of Brown v. Ocean A. & G. Corp. 153 Wis. 196, 140 N. W. 1112. In that case, after - the injury plaintiff was at a hospital under control of defendant’s agents and its physicians, and it was alleged he was induced to sign a release of damages by their fraudulent representation that his injuries were not permanent. There were other allegations as to future facts and'opinions and promises to pay all expenses, etc. It was held that since these representations were made by persons having special knowledge of the facts, and related in part to the extent of plaintiff’s injuries, they should not be construed as mere mаtters of opinion or future promises.

The argument is made in the brief of appellant’s counsel that when defendant’s agent “falsely and fraudulently represented that a debt or obligation existed on defendant’s part ‍‌‌‌‌‌‌‌​‌​‌​‌‌​​‌​‌‌​​​‌‌‌​​​‌​‌‌‌​​​‌​‌​​‌‌​​‌‌‍and that the same would be settled and paid without the necessity of plaintiff exеrcising his legal remedies, a fraud was committed for which redress will be granted.”

There is no allegation that ^ny false representation as to defendant’s obligation was made, and if there were, such an allegation would be contrarv to the other allegations of *251the complaint and the whole theory on which the action was commenced. We feel compelled to construe the allegations as those relating to future evеnts and not existing facts, and therefore not actionable. Mere promises to pay a debt in the future, although broken, are not fraudulent, although thеy may -be so labeled in the complaint. It is axiomatic that, in drawing a complaint charging fraud, the pleader must state facts constituting the fraud alleged, so that the court may form its own opinion as to its sufficiency.

Plaintiff’s counsel argue that the former strict rule has been so relaxed that false representations as to value and opinions may constitute fraud, citing Miranovitz v. Gee, 163 Wis. 246, 157 N. W. 790, and Ohrmundt v. Spiegelhoff, 175 Wis. 214, 184 N. W. 692. But an examination of these cases will show the peculiar circumstanсes under which statements of opinion as to value were held actionable and they fall far short ‍‌‌‌‌‌‌‌​‌​‌​‌‌​​‌​‌‌​​​‌‌‌​​​‌​‌‌‌​​​‌​‌​​‌‌​​‌‌‍of asserting that mere promises to perfоrm acts in the future, although broken, may constitute fraud. Many decisions of this court declare the contrary rule. Sheldon v. Davidson, 85 Wis. 138, 55 N. W. 161; Morrison v. Koch, 32 Wis. 254; Patterson v. Wright, 64 Wis. 289, 25 N. W. 10; James M. Co. v. Bridge, 134 Wis. 510, 114 N. W. 1108; Horton v. Lee, 106 Wis. 439, 442, 82 N. W. 360; Tuffs v. Weinfeld, 88 Wis. 647, 60 N. W. 992.

The trial judge did not err in sustaining the demurrer to the second cause of action.

By the Court. — The order appealed from is affirmed.