Detwiler v. Lowden
| Decision Date | 23 October 1936 |
| Docket Number | 31,125 |
| Citation | 269 N.W. 367,198 Minn. 185 |
| Parties | ROBERT M. DETWILER v. FRANK O. LOWDEN AND OTHERS |
| Court | Minnesota Supreme Court |
Action in the district court for Steele county against defendants as trustees of the Chicago, Rock Island & Pacific Railway Company to recover for injuries sustained by plaintiff while in defendants' employ, wherein defendants appealed from an order, Fred W. Senn, Judge, denying their motion to have first tried and determined the existence and validity of a certain contract relating to settlement or trial of plaintiff's cause of action, and, if found valid, to have it specifically enforced. Appeal dismissed.
Appeal and error -- nonappealable order.
1. In this action, brought under the federal employers liability act, for injuries sustained by plaintiff while in defendants' employ in interstate commerce, the answer denied liability and set up a contract under which plaintiff for $100 paid by defendants, covenanted that, should amicable settlement fail, he would not sue defendants on account of the injuries in any courts except those sitting in the state where the injuries were received or wherein he then resided and alleged that he received such injuries in a train collision in the state of Kansas, wherein he resided. The reply denied the execution of the contract and alleged that if he signed such a contract it was procured by concealment and fraud of defendants in representing it to be a receipt for money advanced as a loan, and further averred that the covenant in the contract was illegal and against public policy. Defendants appeal from the order denying their motion to have the existence and validity of the contract first tried and determined and if found valid that it be specifically enforced. The order is not appealable as one denying a provisional remedy for it does not purport to be final.
Judgment -- adjudication not operative as bar.
2. The fact that in an action for the same injuries pending in the federal district court of this state, upon similar pleadings, an order, not appealed from, removed the cause from the law to the equity side of the court to first determine the existence and validity of the contract, is not res adjudicata of the legal proposition sought to be raised by this appeal.
Contract -- validity -- covenant not to sue.
3. If the contract was signed by plaintiff without concealment or fraud by defendants the covenant is legal and should be enforced.
O'Brien, Horn & Stringer, for appellants.
Robert J. McDonald and William H. DeParcq, for respondent.
Plaintiff, while a fireman on a train moving in interstate commerce and operated by defendants as trustees of the Chicago, Rock Island & Pacific Railway Company, was injured in a collision in the state of Kansas, in which state he then resided. He sues to recover damages for such injuries, alleging that the collision was caused by the negligence of defendants and their servants. Defendants' answer admits the operation and character of the train on which plaintiff was employed when the collision occurred, denies that it was caused by defendants' negligence, and avers that plaintiff's injuries resulted from his disobedience to the command of his superior in the service. Other defenses, not necessary now to mention, are set forth in the answer. The answer further alleges that the collision causing plaintiff's injuries happened in the state of Kansas, where he then resided. Then as an equitable defense and cross-bill it alleges that about four months after the injuries were received plaintiff, in consideration of $100 advanced to him by defendants, agreed in good faith amicably to settle with defendants for his injuries, and if his claim could not so be adjusted he covenanted with defendants not to sue them or the railway company for damages on account of said injuries "in any courts sitting outside of the state of" his residence at the time of said injuries or outside of the state wherein said injuries occurred. It also alleges that plaintiff, notwithstanding his covenant, sued defendants in the federal district court of this state to recover for said injuries; that these defendants therein set up the same equitable defense and crossbill as herein set forth, and plaintiff replied thereto; that thereafter a motion was made by defendants to transfer the cause from the law to the equity side of said court to first try and determine the existence and validity of said covenant not to sue in courts sitting outside the state of Kansas; and that the federal court granted the motion by an order made part of the answer, from which order no appeal has been taken.
Plaintiff questions the appealability of the order. It is not appealable under 2 Mason Minn. St. 1927, § 9498(3). But defendants contend the order denies a provisional remedy and is appealable under § 9498(2). The difficulty with this contention is that the order has not yet denied either an injunctional remedy or the specific performance of the contract not to sue in this state. The court indicated that under the pleadings the existence and validity of the contract upon which defendants rely may properly be disposed of in the trial by a court empowered to give effect to equitable defenses in the trial of an action at law. For that reason the trial court did not deem it necessary to consider or determine, in advance of the trial of the cause of action stated in the complaint, the question of the validity of the covenant not to sue except in the courts sitting in the state where the injuries were sustained and wherein plaintiff then resided. There are two issues raised by the pleadings with regard to this covenant. One is whether the contract containing the same was signed by plaintiff with knowledge of its contents or was obtained by defendants by fraudulently representing it to be a receipt for money loaned or advanced to him; and the other is the legal issue or question whether or not the covenant on its face is void as an attempt to circumscribe the jurisdiction of courts or is illegal as in contravention of 45 USCA, §§ 55 and 56, of the federal employers liability act. The first, or the question of fact, may well be submitted to a jury as is generally done in cases for personal injuries where a release is pleaded as a defense and is attacked by the reply as having been obtained by fraud. If that issue is determined in favor of the present plaintiff, of course the illegality of the covenant becomes moot. The order appealed from on its face is not final. [1] It does not purport to pass on the validity of the covenant, nor does it determine that the contract, if found to have been made by plaintiff, should not be specifically performed by enjoining him from suing in the courts of this state for the injuries referred to in the complaint.
Defendants also insist that the order of the federal court, not appealed from, has become res adjudicata and should govern in the state court. The procedure in the courts of this state is different from that under the federal judicial code. The latter provides [2] that when equitable issues are presented by an affidavit of defense and plaintiff's reply they should be heard pursuant to § 274b of the code (28 USCA, § 398) "by a chancellor according to equity procedure in advance of the trial by jury at law of any purely legal issues." Enelow v. New York L. Ins Co. 293 U.S. 379, 381, 55 S.Ct. 310, 311, 79 L.Ed. 440. In our courts equitable defenses are available in actions at law. And certainly the issue of fact whether the signature of plaintiff to the contract pleaded was obtained by fraud and misrepresentation as to its character may be a jury issue the same as is usually the case in actions of this sort wherein the answer pleads a release which the reply attacks as obtained by fraud. 5 Dunnell, Minn. Dig. (2 ed. & Supp. 1932) § 7587. Under our practice whether equitable defenses are to be determined by the court without a jury in advance of the trial of a plaintiff's cause of action is usually left to the discretion of the court. 5 Dunnell, Minn. Dig. (2 ed. & Supp. 1932) § 7591. To a court having such discretion the order of the federal court in the action there pending was not even a precedent. The order appealed from cannot be considered appealable simply because...
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