One who secures employment by a railroad company engaged in interstate commerce by concealing a physical condition which if disclosed would have disqualified him for such employment, cannot recover under the Federal Employers' Liability Act for personal injuries sustained in the course of his employment even though his physical condition was not the cause of such injuries. Minneapolis, St. P. S. Ste. M.R. Co. v. Rock, 279 U.S. 410, 49 S.Ct. 363, 73 L.Ed. 766; New York C.R. Co. v. Lockwood, 17 Wall. 357 84 U.S. 357, 21 L.Ed. 627; Great Northern R. Co. v. Wiles, 240 U.S. 444, 36 S.Ct. 406, 60 L.Ed. 732; Stafford v. Baltimore O.R. Co., 4 Cir., 262 F. 807.

It is not every misrepresentation of a material fact by one who seeks employment under the Federal Employers' Liability Act that will prevent recovery under that act. Minneapolis, St. P. S.S.M.R. Co. v. Borum, 286 U.S. 447, 52 S.Ct. 612, 76 L.Ed. 1218; Newkirk v. Los Angeles Junction Ry. Co., 21 Cal.2d 308, 131 P.2d 535, 543; Dawson v. Texas P. Ry. Co., 123 Tex. 191, 70 S.W.2d 392.

GIVENS, Justice.

Respondent, ostensibly employed by appellant as a brakeman, working on a switching crew in the yards at Idaho Falls, attempted — in line of duty — to board a moving oil car. He claimed the grabiron and sill step were loose on one side, thereby giving way and tending to let him slip in under the moving car. To avoid such injury, he threw himself backward and fell from the car, striking his head on a rail of the adjoining track, rendering him momentarily unconscious, and causing ensuing alleged permanent injuries in that the accident either caused, or changed, petit mal into grand mal and resulted in other related disabilities.

Respondent sued under the Federal Employers' Liability Acts, 45 U.S.C. (1946) Ch. 2, §§ 51 and 52, p. 4911, 45 U.S.C.A. Ch. 2, §§ 5 land 52; Vol. 10, Title 45 Fed. Code Ann. §§ 51 and 52; and the Safety Appliance Acts, 45 U.S.C. (1946) Ch. 1, §§ 4, 11 and 13; 45 U.S.C.A. Ch. 1, §§ 4, 11, and 13; Vol. 10, Title 45 Fed. Code Ann. §§ 4, 11 and 13; charging a violation of Sections 4, 11 and 13 of the latter, and obtained a verdict for $35,000. After overruling a motion for a new trial and judgment notwithstanding the verdict, judgment was entered therefor, occasioning the present appeal, which presents appellant's points of error thus:

First, the evidence is insufficient to support the judgment;

Second, the verdict is so excessive as to appear to have been given under the influence of passion or prejudice;

Third, that respondent perpetrated fraud upon appellant at the inception of his employment, thereby depriving him of the right to sue and receive the benefits of the above Federal Statutes.

The last point, with an instruction given by the court relative thereto, is decisive of the appeal.

The allegation of employment is contained in Paragraph III of the Complaint: "That on and prior to the 28th day of October, 1947, the plaintiff was employed by the defendant as a switchman in interstate commerce, and working, at the time of the accident hereinafter set forth, within defendant's railroad yards in the City of Idaho Falls, Idaho." And denied by the answer: "Defendant denies each and every allegation contained in paragraphs II, III, IV, V and VI of said complaint."

During the course of the trial, without objection interposed by him, respondent as a witness on cross-examination, and as a witness for appellant relative to copies of his written applications for employment both with appellant and others, admitted he had made false and deceptive statements with regard to his physical condition, and did so because if he had made true statements, he probably would not have secured employment. Appellant's former chief surgeon, at the time of the trial employed only as a consultant, testified without contradiction that if respondent had stated to appellant when he was first employed, that he was afflicted with epilepsy, he would not have been employed. It is virtually conceded that unless the person afflicted with mal, petit or grand, so states or is seen in a seizure, no diagnosis will disclose it.

In this connection, appellant assigns as error the giving of this instruction by the court: "As stated to you in the previous instruction, the plaintiff's action is brought under the provisions of the Acts of Congress quoted to you in that instruction. And the plaintiff's employment by the defendant at the time of the alleged injury was such as to bring him within the provisions of those acts, and to entitle him to the benefits of those acts." Instr. No. 4. (Emphasis indicates erroneous position.)

Respondent counters with the contention fraud was not plead. On the other hand, the evidence of respondent's deception went in without objection by him and the issue was, therefore, properly in the case. Idaho State Merchants' Protective Ass'n v. Roche, 53 Idaho 115, at page 119, 22 P.2d 136, 137: "Evidence received without objection enlarges the pleadings." In so concluding, we do not pass on whether fraud as a defense may, over objection, be presented under the general issue.

Respondent further urges that since appellant made no request for a correct instruction, it has waived the error — if any — in the instruction and furthermore, the evidence showed respondent had sufficiently advised appellant of his epileptic condition to at least put it on notice, and hence there was no prejudicial error. The evidence as to what respondent told appellant's physicians as to his condition prior to the accident was equivocal and different conclusions could be drawn therefrom and as to what warning or notice these statements portended. This presented a question for the jury, not for the court.

The learned trial judge in denying a judgment non obstante and motion for a new trial, correctly stated and recognized the situation and that the instruction was erroneous, thus: "This, of course, involves a ruling upon the question of fraud, as affecting the plaintiff's status as an employee. On this question, I think the defendant's pleading is sufficient to raise the issue. That is, the defendant's denial of the allegations of plaintiff's complaint to the effect that the plaintiff was at the time of the injury an employee, within the meaning of the Federal Acts, is sufficient to entitle the defendant to challenge the plaintiff's position as an employee upon the ground that he fraudulently concealed from the defendant his epileptic condition. I think this is the effect of the decision of the U.S. Supreme Court in the case of Minneapolis, St. Paul, Sault Ste. Marie Railway Company v. Rock, 279 U.S. 410, 49 S.Ct. 363, 73 L.Ed. 766. In the case at bar, however, the cross examination of the plaintiff is to the effect that Doctor Willson, who was at the time the examining physician for the defendant, knew of these seizures. This raised the question as to whether or not the defendant was actually deceived by the failure of the plaintiff to disclose his true physical condition. And this is so, even though the plaintiff himself testified that his concealing was deliberate, and with intention to deceive. This issue of fact was not submitted to the jury with appropriate instructions. This is no doubt error, but it is an error that the defendant is not urging as ground for a new trial, and is one which is probably waived by the failure of the defendant to request appropriate instructions on the issue."

Where an instruction is erroneous, the complaining party need not request a correct instruction to take advantage of the error. Abbs v. Redmond, 64 Idaho 369, at page 375(3-4), 132 P.2d 1044.

The instruction pre-emptorily took this issue from the jury and the rule as to amplifying or explaining instructions is not pertinent. Mitchell v. Atwood, 55 Idaho 772, at page 775, 47 P.2d 680, is not applicable.

If respondent's deception so entered into the contract of employment with appellant as to vitiate it, under the Federal authorities he was not entitled to sue under the Federal Statutes, Minneapolis, St. P. S. Ste. M.R. Co. v. Rock, 279 U.S. 410, 49 S.Ct. 363, 73 L.Ed. 766; Minneapolis, St. P. S. Ste. M.R. Co. v. Borum, 286 U.S. 447-451, 52 S.Ct. 612, 76 L.Ed. 1218.

This issue should have been presented to the jury under appropriate instructions as to whether the false or deceptive statements affected the factum of the contract, Newkirk v. Los Angeles Junction Ry. Co., 21 Cal.2d 308, 131 P.2d 535, at page 543 (15-16), or there was a causal relation between his concealed infirmity and the accident.

The error is substantial and, therefore, prejudicial and requires a reversal.

Since the cause is remanded for a new trial, we need not and do not discuss the sufficiency of the evidence or the claimed excessiveness of the verdict.

Judgment reversed and cause remanded for a new trial. Costs to appellant.

PORTER and KEETON, JJ., and GLENNON, District Judge, concur.