Camerlin v. New York Cent. R. Co.

• Decision Date: 12 November 1952
• Docket Number: No. 4651.,4651.
• Citation: 199 F.2d 698
• Court: U.S. Court of Appeals — First Circuit
• Parties: CAMERLIN v. NEW YORK CENT. R. CO.

199 F.2d 698 (1952)

CAMERLIN v. NEW YORK CENT. R. CO.

No. 4651.

United States Court of Appeals First Circuit.

November 12, 1952.

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Leo M. Goldberg, Providence, R. I. (Joseph Palmieri, George Ajootian and Goldberg & Goldberg, Providence, R. I., on the brief), for appellant.

Frank W. Crocker, Boston, Mass. (George C. Caner, Jr., and Ropes, Gray, Best, Coolidge & Rugg, Boston, Mass., on the brief), for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

MAGRUDER, Chief Judge.

The appeal here is from a summary judgment for the defendant in an action under the Federal Employers' Liability Act, as amended, 35 Stat. 65, 53 Stat. 1404, 45 U.S. C.A. § 51 et seq. Our holding is that the case was not a proper one for summary judgment, for we do not agree that on the pleadings and depositions before the court the plaintiff was as a matter of law bound by a general release set up in answer to the action.

It was alleged in the complaint that on or about September 8, 1948, plaintiff was employed by defendant railroad as a laborer, working at Churchville, New York, on the job of laying heavy cement blocks for the construction and maintenance of "water-pans", which were placed between the rails for the servicing of defendant's trains engaged in interstate commerce; that while he was so employed, one of such cement blocks was caused to fall upon him by the negligence of a fellow employee resulting in serious and permanent injuries, all to his damage in the sum of $25,000.

In its answer, defendant set up various defenses only one of which is relevant to this appeal. The Fourth Defense was that "the plaintiff for a valuable consideration, duly executed and delivered to the defendant a general release in writing whereby the plaintiff duly released the defendant and forever discharged it from the alleged cause of action set forth in the plaintiff's complaint and from any and all claims and cause of action of every kind whatsoever against the defendant."

To this Fourth Defense plaintiff filed a reply denying the allegations therein and further alleging that the so-called release was "intended between the parties to be merely a receipt by the plaintiff to the defendant of certain monies advanced by the defendant to the aforesaid plaintiff"; that the defendant corporation falsely and fraudulently represented to the plaintiff that the instrument referred to in the Fourth Defense "was only a receipt for a payment for medical bills and weekly compensation under the New York Workmen's Compensation Law, McK.Consol.Laws, c. 67, in the sum of $25.00 per week for a period of approximately 26 weeks," and that in reliance on such misrepresentation he signed the same and did not ascertain that it purported to be a release of the cause of action set forth in the complaint until after the present action was instituted. In addition, plaintiff's reply alleged that the sum of $950 given by defendant as consideration for the purported release was so grossly and flagrantly inadequate, in view of plaintiff's actual injuries, that in equity and good conscience the release should be declared void and of no effect. The reply also averred plaintiff's readiness and willingness to return the $950 if the court decided that he must do so, but he asserted his belief that it was not necessary to return this sum as a condition precedent to the maintenance of the action.

On January 25, 1952, defendant presented to the court below a deposition by plaintiff and one by his mother, taken on behalf of defendant pursuant to subpoena. Counsel for both parties were present at the taking of the depositions, and questioned the deponents. Plaintiff's deposition rehearsed in detail the circumstances attending the execution of the so-called release. The mother's deposition is of little or no importance, since she was not present at the conversation between the plaintiff and the claim agent, and was merely called in after the execution of the release to witness her son's signature to that document and to a separate document reciting the facts relating to the accident. On the basis of the pleadings and of these two depositions, defendant moved for a summary judgment in its favor under Rule 56(c), F.R.C.P., 28 U.S. C.A.

Subsequently, on February 9, 1952, plaintiff filed by leave of court an affidavit executed by him after the taking of the depositions. The affidavit also recited the circumstances leading up to the execution of the so-called release.

On February 12, 1952, the district court allowed the motion for summary judgment and entered judgment for the defendant.

In an accompanying memorandum, the district judge stated that in so far "as the affidavit differs from or varies the evidence of the plaintiff in his deposition, the deposition will control, as the right of cross-examination was not present with regard to the affidavit." If by this the district judge meant to rule that the facts alleged in the affidavit would be excluded from consideration in the determination of the question whether there was any genuine issue as to any material fact, then we think the ruling was technically in error. Rule 56(c) provides: "The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Italics added. See also Rule 56(e).

However, if there was error in this respect, it was not prejudicial. The affidavit was not in any material respect in contradiction of any of the allegations contained in the plaintiff's deposition, but for the most part was merely a reaffirmation of his testimony given by deposition. The only important additional allegation contained in the affidavit was to the effect that the claim agent assured him "that when I got better and was able to return to do some work, the company would give me a lifetime job of some kind if I was unable to do the same kind of work I did in Churchville, New York, before I was injured"; that this was one of the statements by the claim agent upon which he relied in executing the so-called release; and that subsequently "the company did not give me any lifetime job as the Claim Agent promised me." If the release were otherwise valid and binding, it could not be avoided on account of the railroad's subsequent nonfulfillment of this oral promise allegedly made by the claim agent in the course of negotiations leading to the settlement. It is not asserted that the parties meant to include this oral promise in the written contract of settlement, and that it was omitted therefrom by mutual mistake. The oral promise is not enforceable as a promise, in view of the parol evidence rule, and the plaintiff could not, therefore, avoid his part of the bargain on the ground of failure of consideration. Nor do the above-stated allegations in the affidavit make out a case of fraud on the agent's part in the sophisticated sense that the agent procured the plaintiff's execution of the release in part by making an oral promise which he then and there had no intention to fulfill, or which he knew the railroad would not fulfill. The mere fact that the railroad subsequently did not give plaintiff a lifetime job is not, without more, a basis for inferring as a fact that the claim agent made the promise in bad faith, misrepresenting his then state of mind. Irish v. Central Vermont Ry., Inc., 2 Cir., 1947, 164 F.2d 837, relied upon by the plaintiff in this respect, is clearly distinguishable. In that case the plaintiff testified that the claim agent "promised me he would see that I would get my pension retirement"; and that partly on the faith of this promise he was induced to execute a general release. The court pointed out that since it was the Railroad Retirement Board which had the sole power under the applicable law to grant such pensions, and since the plaintiff's particular disability did not make him eligible for a pension under the law, the jury would be warranted in inferring "that the claim agent knew that he was inducing the plaintiff to agree not to sue the railroad by creating false hopes." Therefore the court held that there was an issue of fact as to fraud in the procurement of the release which ought to have been submitted to the jury and that the trial court was in error in dismissing the complaint.

For the above reason we shall take no further account of the allegations in the affidavit, in determining whether the district judge properly granted a summary judgment for the defendant in the present case.

The plaintiff's story, as told in his deposition, may be summarized as follows: After the accident, in which a concrete block dropped on his foot, the plaintiff was given emergency treatment by a Dr. Vail at Churchville, New York. After three days of treatment there, upon advice of Dr. Vail, plaintiff went to his home in Providence, Rhode Island, where he put himself under the care of Dr. William A. Horan, a bone...