Connors v. Gallick, 15578.

• Decision Date: 19 December 1964
• Docket Number: No. 15578.,15578.
• Citation: 339 F.2d 381
• Parties: Gail M. CONNORS, Plaintiff-Appellant, v. Mary N. GALLICK, Executrix of the Estate of James J. Gallick, Deceased, and Mary N. Gallick, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

339 F.2d 381 (1964)

Gail M. CONNORS, Plaintiff-Appellant, v. Mary N. GALLICK, Executrix of the Estate of James J. Gallick, Deceased, and Mary N. Gallick, Defendants-Appellees.

No. 15578.

United States Court of Appeals Sixth Circuit.

December 19, 1964.

C. Richard Andrews, Cleveland, Ohio, Randall F. Fullmer, Otto Miller, III, Burgess, Fullmer, Parker & Steck, Cleveland, Ohio, on brief, for appellant.

Marshall I. Nurenberg, Cleveland, Ohio, Dudnik, Komito, Nurenberg, Plevin, Dempsey & Jacobson, Cleveland, Ohio, Meyer A. Cook, Cleveland, Ohio, on brief, for appellees.

Before MILLER, O'SULLIVAN and PHILLIPS, Circuit Judges.

O'SULLIVAN, Circuit Judge.

Disposition of this appeal may be the final chapter to the interesting litigation in which James J. Gallick, now deceased, obtained a $625,000.00 verdict in the Court of Common Pleas of Cuyahoga County, Ohio, against the Baltimore & Ohio Railroad Company in a Federal Employers' Liability Act case. The cause came to be known as the "bug-bite" case because liability was predicated upon the claim that Gallick was, on August 10, 1954, bitten by an unidentified insect while working along the railroad's right of way. Gallick died while a motion for new trial was pending in the Ohio Court of Appeals, shortly after the United States Supreme Court ruled that the Court of Appeals had erred in reversing the judgment entered upon that verdict. Following Gallick's death Mrs. Connors, the plaintiff in the present case, notified his former counsel of her claim to be his long-abandoned daughter by a previous marriage. Gallick's counsel, now representing Mrs. Gallick, then settled Gallick's judgment against the railroad for $475,000 in consideration of an agreed denial of the motion for new trial. The present action seeks a declaration of plaintiff's rights to participate in the settlement fund. Stripped of factual and procedural complexities, the question involved in this appeal is whether Gallick's death while the motion for a new trial was pending brought into existence a survival cause of action in which plaintiff became such a beneficiary as to be entitled to participate in the settlement fund.

In order to delimit the precise scope of our holding, it is necessary to state in some detail the procedural background against which the agreed settlement was made. Judgment on the jury verdict was entered in the Ohio Common Pleas Court in June, 1959. Upon appeal by the railroad, the Court of Appeals for Cuyahoga County reversed the Common Pleas Court and entered judgment for the railroad upon its view that Gallick's proofs were insufficient to support the judgment under the FELA. Gallick v. Baltimore & O. R. R. Co., Ohio App., 173 N.E.2d 382 (1961). The Court of Appeals held that the trial court erred in denying the railroad's motions for directed verdict and for judgment notwithstanding the verdict, but ruled that none of the other assigned trial court errors were prejudicial to the defendant railroad. The Ohio Supreme Court sustained the Court of Appeals by dismissing Gallick's appeal to it. Gallick v. Baltimore & Ohio R. Co., 172 Ohio St. 488, 178 N.E.2d 597 (1961). The Supreme Court of the United States reversed the judgment of the Ohio Court of Appeals, holding that it had "erred in depriving petitioner of the judgment entered upon the special verdict of the jury," Gallick v. Baltimore & Ohio R. R. Co., 372 U.S. 108, 122, 83 S.Ct. 659, 668, 9 L.Ed.2d 618, Feb. 18, 1963. It held that Gallick's proofs were adequate to make a case for the jury under the FELA and concluded its decision as follows, "The judgment of the Ohio Court of Appeals is reversed and the case is remanded for further proceedings not inconsistent with this opinion." 372 U.S. 122, 83 S.Ct. 668. The Supreme Court's mandate went down on March 16, 1963. On March 18, 1963, the Baltimore & Ohio Railroad Company filed a motion for new trial in the Ohio Court of Appeals, and on March 20, 1963, James J. Gallick died. The motion for new trial charged serious misconduct of a juror during the trial and if such was proven, and if the motion was procedurally proper,¹ a new trial might have been called for. Some eight days after Gallick's death, the plaintiff, Gail M. Connors, notified Gallick's counsel through her lawyer that she was Gallick's daughter. On April 22, 1963, the Probate Court appointed Mary N. Gallick executrix of Gallick's will. This will named her as the wife of Gallick, appointed her as executrix, and devised and bequeathed to her the testator's entire estate. On the same date, the death of James J. Gallick was suggested and the cause in which the $625,000 judgment had been obtained was ordered revived in the name of Mary N. Gallick as executrix. On May 28, 1963, the Court of Appeals of Cuyahoga County entered its order denying the railroad's pending motion for a new trial and the counter motion to dismiss or strike this motion on procedural grounds, reciting the court's awareness that a settlement had been agreed upon by the widow-executrix and the railroad.² The order further provided that its implementing mandate to the Common Pleas Court would be recalled and the motions reinstated if Probate Court approval of the settlement agreed upon should be withheld. On May 31 the Probate Court approved the settlement, reciting that application had been made to settle "all claims of said estate and all claims of any beneficiaries of decedent (Gallick)" against the railroad. The settlement was concluded by payment of $475,000 to Mary N. Gallick, the widow-executrix, who gave her release to the railroad by which the railroad was released

"from any and all claims, demands, actions and causes of action which I have or may have, or any person claiming by or through me has or may have * * * arising out of or in any way connected with the alleged insect bite of August, 1954, the subsequent illness of James Gallick, any loss of earnings, hospital, medical or other expense, or pain and suffering sustained by James Gallick during his lifetime, and any and all claims for damages by reason of his death if and to the extent the same may have been caused by the negligence or wrongful act of the Baltimore and Ohio Railroad Company. * * *"

The release further provided that the executrix' attorney was to enter on the Common Pleas Court record of the original case that "The judgment in this action having been satisfied, the same is hereby canceled and discharged."

Then on June 7, 1963, this lawsuit was commenced by plaintiff-appellant Gail M. Connors as a diversity action against Mary N. Gallick, executrix of the James J. Gallick Estate. Mrs. Connors sought to have it declared that she was entitled to participate in the $475,000.00 paid on the settlement as Gallick's daughter. Appellant also claims here that her complaint raised an issue as to whether Mary N. Gallick was the widow of Gallick in its prayer "that the Court declare that plaintiff is entitled to all of said settlement fund (or in the alternative to one-half thereof if the defendant Mary N. Gallick, is declared to be the surviving widow). * * *"

In rough terms, appellant's theory is that the death of Gallick while the motion for a new trial was pending necessitated a revival of the action under Section 9 of the Act, 45 U.S.C.A. § 59, so that any subsequent settlement would be held for the widow and children as the beneficiaries named in that section, rather than as an asset of Gallick's estate. The District Court dismissed the complaint, ruling that the right of action merged into the judgment obtained by Gallick so "there was nothing susceptible of being survived by a personal representative" and that "the mere coincidence of his death four years later while judgment still remained unpaid did not change the status of the original action." We agree with the conclusion of the District Judge.

While the following facts may not be essential to our decision, they do provide some assurance that our holding does not work an unnatural and perhaps inequitable disposition of the large recovery involved. Plaintiff's complaint, together with affidavits filed in opposition to the motion to dismiss it, reveals that in 1926 when she was one year old her mother, then living in Minneapolis, Minnesota, was divorced from James J. Gallick. Plaintiff had been born in 1925, some three or four months after the marriage of her parents. Following the divorce, her mother resumed her maiden name and plaintiff adopted it "in most of her personal dealings and affairs." James J. Gallick had apparently left Minneapolis prior to the divorce and neither plaintiff nor her mother had any further contact with him or knew his whereabouts until early in 1963 when they learned of the decision of the Supreme Court ordering reinstatement of the spectacular $625,000 judgment in his favor, and of his death — an event made newsworthy because of that recent decision. This news activated plaintiff's interest in her long-lost father and plaintiff's existence and interest in the money which Gallick had recovered was communicated through a lawyer to counsel who had represented Gallick, and who then were acting for Mary N. Gallick. It was after receiving this information that the settlement of the judgment was concluded. Plaintiff, having married Connors, was 38 years old at the time of her father's death. She and her father had been, in effect, mutual strangers during at least the last 37 years of their lives. While the issue of the status of Mary N. Gallick as widow of James was not decided, a certificate of the marriage in Chicago in 1926 of Jacob J. Gallick (as James J. Gallick was sometimes known) to one Pearl Wilson was put in evidence. Although no evidence was taken on the question, the brief of Mary N. Gallick's counsel in this Court asserts that while Pearl Wilson was a fictitious name used by her for personal reasons, Mary Gallick did in 1926 become James' wife, and lived with him as his wife until...