27 Ohio C.C. (n.s.) 142 | Ohio Ct. App. | 1917
This proceeding in error is brought to reverse a judgment of the common pleas court, wherein an instructed verdict was returned in favor of the defendant.
The action was one to recover damages for personal injuries said to have been received by the plaintiff, Charles Omin, on February 17, 1912, while employed by the defendant company as a freight truckman.
The defendant by answer denied generally all the allegations of negligence set out in the petition. In a second defense it alleged that at the time of the accident Omin was employed by it in commerce among the several states, and that the action was not brought within two years from the date on which it occurred — that being the time limit for the commencement of actions under the Federal Employers’ Liability Act.
By way of reply to this second defense, plaintiff alleged that immediately after leaving the hospital where he was confined on account of his injuries he threatened to institute suit to recover damages for his injuries, and that thereupon the defendant promised and agreed that if he would not bring suit it would provide him with such employment as his physical condition would warrant and would take care of him as long as he was disabled; that
At the close of the plaintiff’s testimony the trial court, as above stated, instructed the jury to return a verdict for the defendant, among other reasons because the plaintiff had failed to bring his action within two years from the time his injuries occurred.
Several errors are complained of by plaintiff in error, but we deem it unnecessary to pass upon any other question than that of whether or not the action was brought in time.
Under the Federal Employers’ Liability Act (35 Stats, at Large, 66, Section 6; Section 8662, U. S. Comp. Stats., 1913), passed April 22, 1908, it is provided that “no action shall be maintained under this act unless commenced within two years from the day the cause of action accrued.”
The plaintiff seeks to avoid the effect of this statute by pleading the conduct of the defendant in giving him employment upon the condition that he forebord to bring suit. But it has been held in several well-considered cases that the statute just cited confers a right to which is attached a condition that it be enforced within the stated period, two years. The act creates a liability where none existed theretofore, and it takes away defenses which were formerly available. Coupled with the
This question was squarely presented to the supreme court of Michigan in Bement v. Grand Rapids & I. Ry. Co., 194 Mich., 64, 160 N. W. Rep., 424. To the same effect are the decisions in Morrison v. B. & O. Rd. Co., 40 App. Cas. D. C., 391, and Partee v. St. Louis & S. F. Rd. Co., 204 Fed. Rep., 970.
It is admitted in this case that the right of the plaintiff to recover, if he had a right, arose under the Federal Employers’ Liability Act, in that he was engaged while employed by the defendant in
We deem it unnecessary to pass upon the other alleged questions of error in the case. For the reasons stated the judgment of the court below will be affirmed.
Judgment affirmed.