Baltimore & O.R. Co. v. Evans

• Decision Date: 09 June 1911
• Docket Number: 12.
• Citation: 188 F. 8
• Parties: BALTIMORE & O.R. CO. v. EVANS.
• Court: U.S. Court of Appeals — Third Circuit

188 F. 8

BALTIMORE & O.R. CO. v. EVANS.

No. 12.

United States Court of Appeals, Third Circuit.

June 9, 1911

McCleave & Cecil (William B. Linn, of counsel), for appellant.

Frank W. Guffey and J. M. Stoner, for appellee.

Before GRAY, BUFFINGTON, and LANNING, Circuit Judges.

BUFFINGTON Circuit Judge.

In the court below Mrs. Bertha M. Evans, a citizen of Pennsylvania filed a bill in equity against the Baltimore & Ohio Railroad Company, a corporation of Maryland praying to set aside, as to her, a certain instrument of release signed by her and by M. H. Zinn, administrator of Daniel D. Evans by appointment in West Virginia. On hearing the court below decreed cancellation as prayed for, whereupon the railroad appealed to this court.

The general facts pertinent to the case are recited in an opinion simultaneously filed in an action at law between Bertha M Evans, administrator of Daniel D. Evans, and the Baltimore & Ohio Railroad Company, at No. 11, March term, 1911, and to which reference is made. 188 F. 6. In the present case it appears that Daniel D. Evans, a brakeman in the employ of the railroad, was killed in its service. He was a contributor to the relief fund of that railroad, and on his death his widow, Mrs. Bertha M. Evans, became entitled as his sole beneficiary to receive $1,000 from such fund. Mrs. Evans took out letters of administration in Fayette county, Pa., but for some reason the railroad required that additional letters be taken out in West Virginia, where Evans had been killed, and that the release in question, which had been signed by Mrs. Evans, the beneficiary, should also be executed by the West Virginia administrator. Mrs. Evans seems to have acceded to that request, and went to West Virginia to herself take out such letters, although she expressly insisted at the time, under the advice of counsel, that under the provisions of the employer's liability act, which had not yet been held unconstitutional by the Supreme Court, she intended to bring suit for damages, and that the release desired would not preclude her from so doing. When she went to West Virginia, it was found that letters could not be issued to a nonresident. Letters were therefore taken out there by one Zinn, an employe of the railroad.

While Mrs. Evans had signed the release, not as administratrix, but as widow and beneficiary, and it was in possession of the railroad, she has received no part of the $1,000 of...