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of his age, brushing aside the railroad's attempted reliance upon Rock on the ground "that the facts found, when taken in connection with those shown by uncontradicted evidence, are not sufficient to bring this case within the rule applied in Minneapolis, St. P. & S. S. M. Ry. Co. v. Rock, supra, or the reasons upon which that decision rests.'

In support of this conclusion, the Court in Borum pointed to a number of factual differences with the Rock case. The first mentioned, and apparently the most important of these in the mind of the Court, was the fact that Rock, unlike Borum, had obtained his employment as an "impostor" by presenting himself to the railroad under an assumed name after his initial application in his own name had been rejected. Secondly, the Court pointed to the fact that Rock, again unlike Borum, had never been approved as physically fit for employment by the railroad's examining surgeon. Finally, the Court made reference to the fact that under the railroad's own rules, it could not have discharged Borum for his misrepresentation because more than thirty days had passed since his original provisional employment and the rules made this action final unless changed within that period. But no one of these facts, as the Court recognized, was sufficient to justify a distinction between Rock and Borum based upon an acceptable reconciling principle. In both cases, the worker had been guilty of making a material, false and fraudulent representation without which he would not have been employed. And if such a method of obtaining employment was, as intimated in Rock, to be considered so "abhorrent to public policy" that the normal distinction between "void" and "voidable" contracts was to be ignored, the mere existence of a rail

8 Id., at 451.

9

9 "The general rule is that fraud of this character renders a contract voidable rather than void, but that rule has been ignored in the Rock

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Opinion of the Court.

road rule limiting the time for discharge without cause could not, of course, have overridden that policy. The Court therefore, as shown above, based its decision upholding Borum's right to recover upon all of the factual distinctions between his case and that of Rock and held merely that Rock would not be extended to cover these new facts.

This factual distinction of Rock, though sufficient to show the non-existence of any broad principle that material misrepresentations relied upon by a railroad in hiring bar recovery under the Act, proved completely unsatisfactory to establish affirmatively an intelligible guide by which lower courts could decide what misrepresentations were so "abhorrent to public policy" as to compel a forfeiture of the worker's right to recover under the Federal Employers' Liability Act. And since Borum, the lower federal courts and state courts have been forced to struggle with the baffling problem of how much and what kinds of fraud are sufficiently abhorrent without further guidance from this Court. Consequently, in almost all of such cases, the courts have been faced with a dilemma occasioned by the fact that both parties have been able to argue with considerable force that a decision in their favor is absolutely required by one or the other of the two decisions on the question by this Court. The result in a vast majority of these courts has been an acceptance of Rock as laying down a narrow public policy holding to which Borum establishes the need for courts to make broad exceptions in appropriate cases. And, perhaps not so surprisingly, most cases have been deemed appropriate ones for avoiding the harsh consequences of Rock, with the

Case by the Supreme Court upon the ground that the safety of the traveling public is involved in a contract of this character, and for reasons of public policy it is held that the contract is void and, in effect, that appellee never became an employee of the appellant." Fort Worth & Denver City R. Co. v. Griffith, 27 S. W. 2d 351, 354.

649690 O-62-9

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368 U.S.

courts creating new exceptions to allow recovery whenever a case did not fit within one already established.10 Occasionally, as here, a worker has been held to be barred from recovery, but these few cases seem entirely

10 See, e. g., Qualls v. Atchison, Topeka & Santa Fe R. Co., 112 Cal. App. 7, 17, 296 P. 645, 650 (misrepresentations as to past employment record held "immaterial"); Powers v. Michigan Central R. Co., 268 Ill. App. 493, 498 (misrepresentations as to age and past employment record held insufficient to justify application of Rock because Rock "involved an unusual state of facts"); Dawson v. Texas & Pacific R. Co., 123 Tex. 191, 196, 70 S. W. 2d 392, 394 (misrepresentations as to past employment record and medical history held no bar because they were "in nowise connected with the cause of his injury and not related to his fitness or his ability to discharge the duties required of him"); Texas & New Orleans R. Co. v. Webster, 123 Tex. 197, 201, 70 S. W. 2d 394, 396 (misrepresentations as to previous injury and litigation arising out of that injury held no bar because "it was not shown that his physical condition was such as to make his employment inconsistent with plaintiff in error's proper policy or its reasonable rules to insure discharge of its duty to select fit employees"); Carter v. Peoria & Pekin Union R. Co., 275 Ill. App. 298, 303-304 (misrepresentations as to medical history held no bar because there was no "evidence to the effect that this former injury in any way disqualified or prevented appellant from properly performing his duties as switchman"); Phillips v. Southern Pacific Co., 14 Cal. App. 2d 454, 457, 58 P. 2d 688, 690 (misrepresentations as to past employment record held no bar even though facilitated by the use of an assumed name because there was no showing of "a causal connection between the injury and the misstatements in the application for employment"); Laughter v. Powell, 219 N. C. 689, 698, 14 S. E. 2d 826, 832 (misrepresentations as to age held no bar because there was, despite these misrepresentations, "a contract of employment, even though voidable, by which the relation of master and servant, or employer and employee, was created between defendants and plaintiff"); Newkirk v. Los Angeles Junction R. Co., 21 Cal. 2d 308, 320, 131 P. 2d 535, 543 (misrepresentations as to age held no bar because "[w]here employment is induced by fraudulent representations of the employee not going to the factum of the contract the employment exists although there may be ground for rescinding the contract, and recovery may be had from the employer for negligent injury to the employee at least where there is no causal connection between the

35

Opinion of the Court.

indistinguishable on any significant grounds from the many in which other courts have found or created exceptions.11

In this situation, it seems necessary for this Court, in the interest of the orderly administration of justice, to take a fresh look at this question in an effort to supply

injury and the misrepresentation"); Matthews v. Atchison, Topeka & Santa Fe R. Co., 54 Cal. App. 2d 549, 556, 129 P. 2d 435, 441 (misrepresentations as to age and past employment record held no bar even though these misrepresentations were facilitated by the use of an assumed name and even though they may have contributed to the worker's injury because the rule requiring "a causal connection between the injury and the misstatements' refers to the happening of the injury, not to its effects"); Blanton v. Northern Pacific R. Co., 215 Minn. 442, 446, 10 N. W. 2d 382, 384 (misrepresentations as to medical history and physical condition held no bar because "the jury could have found that there was no causal connection between the misrepresentation and plaintiff's hurt"); Casso v. Pennsylvania R. Co., 219 F. 2d 303, 305 (misrepresentations as to medical history and physical condition held no bar because the misrepresentations were not "of such character that it 'substantially affected the examining surgeon's conclusion that he was in good health and acceptable physical condition'"); Eresafe v. New York, New Haven & Hartford R. Co., 250 F. 2d 619, 621-622 (misrepresentations as to identity, medical history and physical condition held no bar because "[a] humane and realistic policy in such cases requires substantial proof of a direct causal connection between the misrepresentations made at the time of hiring and the subsequent injury to the employee"); White v. Thompson, 181 Kan. 485, 497-498, 312 P. 2d 612, 621 (misrepresentations as to medical history and physical condition held no bar because "it is not alleged the misrepresentations had causal relation to plaintiff's fitness to perform his duties and to the injuries he sustained, or that they substantially affected the medical examiner's conclusion that plaintiff was in good health and acceptable physical condition, or that defendant remained unaware of the deception until after plaintiff's injuries").

11

Only four cases have been brought to the attention of this Court in which the railroad has been permitted to prevail on an issue raised by the defense of fraudulent procurement of employment. One of these, Fort Worth & Denver City R. Co. v. Griffith, 27 S. W. 2d 351,

Opinion of the Court.

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an intelligible guide for future decisions. Having done so, we conclude that the Rock case, properly interpreted, lays down no general rule at all. In that case, the Court was confronted with an action by a railroad worker who, though undeniably an employee of the railroad in any practical or legal sense, had obtained his employment in what was deemed to be such an outrageous manner that it seemed to the Court at that time to be "abhorrent to public policy" to permit him to recover under the Act Congress had passed.12 There is no occasion for us here to reconsider the correctness of that decision on the basis of the peculiar combination of facts involved in that case, for no such facts are involved here and, indeed, they may never arise again. We do conclude, however, that Rock must be limited to its precise facts. In the face of the legislative policy embodied in the Federal Employers' Liability Act that a railroad should pay damages to its workers and their families for personal injuries inflicted by the railroad's negligence upon those who perform its duties, considerations of public policy of the general kind

was decided before Borum by a court which felt itself entirely bound by Rock: "In deference to the holding of the Supreme Court of the United States, which we feel constrained to follow, the judgment is reversed and is here rendered for the appellant." Id., at 354. The other three are: Clark v. Union Pacific R. Co., 70 Idaho 70, 211 P. 2d 402 (judgment for plaintiff reversed for failure to instruct the jury with regard to the railroad's fraud defense); Southern Pac. Co. v. Libbey, 199 F. 2d 341 (judgment for plaintiff reversed for exclusion of evidence relating to railroad's fraud defense); and Talarowski v. Pennsylvania R. Co., 135 F. Supp. 503 (motion to strike the railroad's fraud defense denied). All four of these cases involved misrepresentations as to the worker's physical condition. Compare these cases with those cited in note 10, supra, especially with Blanton v. Northern Pacific R. Co.; Casso v. Pennsylvania R. Co.; Eresafe v. New York, New Haven & Hartford R. Co.; and White v. Thompson.

12 For contemporaneous comment on the Rock decision, see Merrill, Misrepresentation to Secure Employment, 14 Minn. L. Rev. 646; Comment, 43 Harv. L. Rev. 141; Comment, 28 Mich. L. Rev. 357.