Chicago, R.I. & P. Ry. Co. v. Callicotte

• Decision Date: 01 June 1920
• Docket Number: 5195.
• Citation: 267 F. 799
• Parties: CHICAGO, R.I. & P. RY. CO. v. CALLICOTTE. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

267 F. 799

CHICAGO, R.I. & P. RY. CO. v. CALLICOTTE. ^[1]

No. 5195.

United States Court of Appeals, Eighth Circuit.

June 1, 1920

John E Dolman, of St. Joseph, Mo. (Luther Burns, of Topeka, Kan., on the brief), for appellant.

Charles H. Mayer, of St. Joseph, Mo. (K. B. Randolph and Charles F Strop, both of St. Joseph, Mo., on the brief), for appellee.

Before HOOK, Circuit Judge, and AMIDON and BOOTH, District Judges.

BOOTH District Judge.

This is a suit in equity seeking to enjoin the enforcement of a judgment at law and to set aside the judgment. The judgment was obtained by Callicotte against the railway company in the state circuit court of Buchanan county, Mo., for personal injuries received by him December 28, 1914, while an employe of the railway company. The salient points in the history of the litigation are as follows:

Action was commenced by Callicotte in the state court April 5, 1915. Verdict was rendered and judgment entered in his favor June 23, 1915. On August 7, 1915, a motion for a new trial and a motion in arrest of judgment were made and overruled, and on the same day an appeal was allowed to the state Supreme Court. On December 6, 1916, the bill of complaint in the present case was filed in the District Court for the Western District of Missouri. On July 19, 1917, in the state court in which the personal injury case had been tried, a 'motion for an order in the nature of an application for an order for a writ of error coram nobis' was made, by which it was sought to vacate and set aside the judgment of June 23, 1915 on the ground that the judgment had been procured either through fraud or palpable mistake, or upon conjecture. On the same day this motion was overruled, and an appeal taken to the Supreme Court of Missouri from the order overruling the motion. September 25, 1917, upon the trial of the present suit in the United States District Court a decree was entered sustaining a demurrer by the defendant to the plaintiff's evidence, and dismissing the bill. In May, 1918, decisions were rendered in the Supreme Court of the state of Missouri (204 S.W. 528; Id., 204 S.W. 529) affirming the judgment entered June 23, 1915, in the state circuit court of Buchanan county, and also affirming the order of said circuit court in overruling the motion of the railway company for a writ of error coram nobis.

In the complaint in the case at bar plaintiff railway company alleges that Callicotte fraudulently and falsely pretended to receive injuries at the time of the accident which resulted in permanent paralysis of his lower limbs; that at the time of the trial of the personal injury case in the state court, and prior thereto, Callicotte, being aided by coconspirators, feigned paralysis of his lower limbs, and produced, or caused to be produced, an apparent paralysis of his lower limbs; that said feigned paralysis could not be detected by the usual and ordinary medical tests used for that purpose, although such tests were in fact made by the railway company; that Callicotte testified falsely at the trial that said paralysis was genuine, and the result of personal injuries; that Callicotte after the accident, both before and for some time after the trial, kept himself secreted in his house, so that his true condition should not be ascertained; that during said period he had perfect use of his lower limbs, and made use of them at will; that Callicotte and his coconspirators, by said fraudulent, deceitful, and feigned conduct, caused witnesses to falsely testify at the trial that his lower limbs were paralyzed; that Callicotte and his coconspirators caused him to be fraudulently exhibited to the jury at the trial as a hopeless paralytic; that the court and jury were fraudulently deceived and misled by these fraudulent acts of Callicotte, and by the false testimony of himself and others, who were induced to testify by the false and fraudulent acts of Callicotte; that by reason of the close and watchful care of Callicotte and his coconspirators the railway company was prevented from discovering his real condition, and did not discover it until about January 8, 1916.

The defendant, Callicotte, in his answer in the present suit denied that he had ever feigned paralysis or produced the same; denied that he had conspired to deceive the court, jury, or defendant railway, and denied that he had caused witnesses to testify falsely; denied that there was any false testimony on the trial on the part of himself or his own witnesses; alleged that the question of false testimony and the question of feigned paralysis were issues in the personal injury case tried. He also set up as defense, by way of adjudication, the proceedings by the railway company to obtain a writ of error coram nobis.

At the trial of the present suit in the lower court the plaintiff railway company introduced (1) a complete abstract of record in the personal injury case; (2) a transcript of the evidence given by Callicotte in a case entitled 'State of Missouri vs. Callicotte,' tried in April, 1916; (3) oral testimony of numerous witnesses. At the close of the plaintiff's case the defendant demurred to the evidence on the ground that the same failed to prove facts sufficient to constitute a cause of action, and, as has already been stated, the demurrer was sustained, and a decree entered dismissing the bill.

It becomes necessary, therefore, to determine (1) what facts were disclosed by the evidence; (2) whether those facts make a case for the equitable relief demanded; (3) whether such relief can be afforded in the federal court.

1. Among the important facts which are established by the evidence are the following: That on the trial of the personal injury case testimony of plaintiff as to the history of his case was 'that since a day or two after the accident, a period of more than six months, he had been completely paralyzed in his lower limbs; that he had no control over them, or sensation in them'; that before the trial Callicotte had been examined on behalf of the railway company, and also on his own behalf, by several skilled medical men, who made the usual tests to ascertain whether paralysis existed as claimed by Callicotte, and the tests indicated that he had no control over his legs and no sensation in them; that at the time of these several examinations the history of the case up to that time was given to these doctors either by Callicotte or by his regular attending doctor; that this history of the case was a material factor in the conclusions drawn by the expert medical witnesses for Callicotte to the effect that this paralysis would be permanent; that one of Callicotte's own medical witnesses who had testified for him on the trial of the personal injury case testified on the trial of the case at bar on behalf of the railway company to the effect 'that if in fact Callicotte walked and otherwise used his legs between the time of the accident and February, 1915, the time when he examined him, it would be his opinion that the paralysis which he found in February, 1915, had been produced by artificial means'; that Callicotte was not paralyzed, as testified by himself, but in fact had the use of his legs, and had actually used them in walking about the house and otherwise, during the whole period from the time of the accident to the time of the trial and thereafter; that it was admitted that Callicotte had had the use of his legs since August 19, 1915, but it was claimed that the paralysis disappeared on that date; that Callicotte, with the aid and understanding of members of his family and his wife's family, kept his true condition concealed from the general public both during the period between the accident and the trial of the personal injury case and thereafter; that he made use of such methods as keeping the blinds of his house drawn and the doors locked when he was up and about, or by making use of a wheel chair; that as late as January, 1916, he was discovered one afternoon disguised in women's clothes, going to a coal shed in his back yard; that he remarked at that time, upon being discovered, that 'the jig was up'; that Callicotte threatened to kill one of the members of his wife's family if she ever gave him away; that the discovery of the fraud was not made until long after appeal had been taken from the trial court to the Supreme Court, and that discovery was made possible through a falling-out among the conspirators. The evidence further established that it is possible by the injection of certain drugs to produce and reproduce local temporary paralysis, and that paralysis so produced cannot be distinguished from genuine paralysis, except by observation over an extended period.

We have here, therefore, a conspiracy by Callicotte and others (1) to prevent his true condition and the history of his case being known; (2) to swear falsely as to his condition and the history of his case; (3) to produce a false condition and fabricate a false history of the case as a basis for testimony by witnesses other than himself. This conspiracy was directed against the defendant, the defendant's witnesses, and certain of the plaintiff's own witnesses, and against the court, and jury. Its purpose was not merely to present a false case for plaintiff, but also to prevent the defendant company from putting in its own case in defense.

2. Do the facts warrant the relief demanded? The circumstances under which a court of equity will restrain the enforcement of a judgment on the ground of fraud has been the source of much litigation both in the federal and state courts. The leading case is U.S. v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93, where it was sought to set aside a patent alleged to have been procured by false testimony and a forged instrument of...