John M. Atkins v. Union Pacific Railroad Co.

This is an appeal from the dismissal of plaintiff Atkins’ FELA action on the ground that his. claim is barred by the statute of limitations. See 45 U.S.C. § 56 (1976). Atkins argues that his mental incompetence tolled the statute, or alternatively, that Union Pacific is estopped to assert the statute of limitations. We agree with the latter argument and reverse.

I

FACTS

Plaintiff Atkins received an eye injury in an on-the-job accident on June 11, 1975. Three months prior to the injury, he had been hospitalized for psychiatric problems, from which he had recovered sufficiently to resume work. After the eye injury, Atkins contacted two law firms, neither of which ever took any action on his behalf, for reasons that do not appear in the record. However, it is not disputed that during most of the three years following the accident, Atkins was under the impression that a lawyer was representing him.

During 1976 and 1977, between the time the first law firm disclaimed representation of Atkins and the time he apparently con *1148 tacted another law firm, the railroad’s claims agent discussed with Atkins settling his claim. The claims agent offered $20,-000; Atkins replied that he…

dissenting.

I dissent. Atkins knew when he turned down $20,000 and demanded $50,000 that no settlement was pending. Whether or not Atkins had a lawyer is immaterial. Every defendant has the right to remain quiet and let the statute run. That is the way the system works.

I would affirm the trial court.

685 F.2d 1146 John M. ATKINS, Plaintiff-Appellant, v. UNION PACIFIC RAILROAD CO., Defendant-Appellee. No. 80-3225. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 4, 1981. Decided Aug. 31, 1982. James J. Roberson, Portland, Or., for plaintiff-appellant. Jeff S. Asay, Portland, Or., for defendant-appellee. Appeal from the United States District Court for the District of Oregon. Before GOODWIN and FLETCHER, Circuit Judges, and McNICHOLS, * District Judge. FLETCHER, Circuit Judge: 1 This is an appeal from the dismissal of plaintiff Atkins' FELA action on the ground that his claim is barred by the statute of limitations. See 45 U.S.C. § 56 (1976). Atkins argues that his mental incompetence tolled the statute, or alternatively, that Union Pacific is estopped to assert the statute of limitations. We agree with the latter argument and reverse. 2 * FACTS 3 Plaintiff Atkins received an eye injury in an on-the-job accident on June 11, 1975. Three months prior to the injury, he had been hospitalized for psychiatric problems, from which he had recovered sufficiently to resume work. After the eye injury, Atkins contacted two law firms, neither of which ever took…