Gifford v. Wichita Falls & Southern Railway Co.

• Decision Date: 09 August 1955
• Docket Number: No. 15365.,15365.
• Citation: 224 F.2d 374
• Parties: Ben N. GIFFORD, Appellant, v. WICHITA FALLS & SOUTHERN RAILWAY COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

224 F.2d 374 (1955)

Ben N. GIFFORD, Appellant, v. WICHITA FALLS & SOUTHERN RAILWAY COMPANY, Appellee.

No. 15365.

United States Court of Appeals Fifth Circuit.

June 30, 1955.

As Modified on Denial of Rehearing August 9, 1955.

Jack G. Banner, Philip S. Kouri, Wichita Falls, Tex., Kouri & Banner, Wichita Falls, Tex., for appellant.

John H. Alvis, Abilene, Tex., Leslie Humphrey, Wichita Falls, Tex., H. W. Fillmore, Wichita Falls, Tex., J. B. Look, Jr., Dallas, Tex., Bullington, Humphrey, Humphrey & Fillmore, Wichita Falls, Tex., Wagstaff, Harwell, Alvis & Pope, Abilene, Tex., of counsel, for appellee.

Before RIVES, Circuit Judge, and DAWKINS and DE VANE, District Judges.

DE VANE, District Judge.

This action was brought by appellant, hereinafter referred to as plaintiff, under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., to set aside a release executed by him and to recover damages for personal injuries. Plaintiff alleged in his complaint that he was injured while employed by defendant as a bridge carpenter; that he received injuries necessitating the amputation of his right leg, and that he was induced by defendant's agent to execute a release in consideration of a lifetime job and the sum of $6,000.00. The complaint further alleged that the promise of a lifetime job was fraudulently made and the release was therefore void and of no binding effect.

Defendant answered the complaint by asserting the validity of the release and traversing plaintiff's allegations as to negligence.

On April 29, 1953 this action was tried before the court and a jury; defendant appearing and vigorously contesting plaintiff's case; which, at the conclusion of the testimony, resulted in the trial court directing a verdict for the defendant. Plaintiff appealed to this court and defendant, through counsel, resisted the efforts of plaintiff to secure a reversal of the trial court's judgment.

In an opinion reported in 211 F.2d 494 this court remanded the case for a new trial, holding that it was error for the trial court to direct a verdict under the facts and evidence presented by plaintiff. The case was again set for trial at the October, 1954 term of court. On September 27, 1954 defendant filed a motion to dismiss the action or in the alternative, for a summary judgment and this motion was set for hearing before the court on September 30, 1954. Prior to the hearing on defendant's motion, plaintiff filed with the court a motion for leave to amend the complaint by correcting what he alleged to be a misnomer of the defendant. The court heard oral argument on plaintiff's motion and denied plaintiff leave to amend. Although the record discloses no order of denial the record fully supports plaintiff's claim in this regard.

After refusing to permit plaintiff to amend, the court heard evidence on defendant's motion to dismiss or for a summary judgment and at the conclusion of the testimony ordered the case dismissed. The case is before this court on appeal from the lower court's order of dismissal.

The mix-up in this case grows out of the following facts: Plaintiff brought this action against Wichita Falls & Southern Railway Company. The evidence on the motion to dismiss discloses that some years prior to the institution of this suit the Wichita Falls & Southern Railroad Company acquired all the assets of the Wichita Falls & Southern Railway Company and that the Railroad Company was, in fact, the owner and operator of the railroad property and that plaintiff was, in fact, an employee of said company. The evidence further shows that these corporations are inter-related; that the two corporations occupy offices together and that only employees on the payroll of the Railroad Company perform services for the Railway Company.

Plaintiff relies upon Rule 15 of the Federal Rules of Civil Procedure, 28 U.S.C.A., in support of his right to amend the complaint to substitute the Railroad Company for the Railway Company as party defendant and cites numerous cases in support of his position in this regard.

Defendant relies chiefly on two decisions of the Texas Court of Civil Appeal, viz.: Wichita Falls & Southern Railway Company v. Foreman, 109 S.W. 2d 549 and Gillette Motor Transport Company v. Whitfield, 160 S.W.2d 290. These cases clearly support defendant's contention and if they are controlling upon this court are decisive of this case in defendant's favor.

The court is of the opinion, however, that they are not controlling or even applicable in this case. The matter of amendment to pleadings is a procedural matter governed by Federal law and the Federal Rules of Civil Procedure and not by Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. See: Tozer v. Charles A. Krause Mill, 3 Cir., 189 F.2d 242; Zumwalt v. Gardner, 8 Cir., 160 F.2d 298; Copeland Motor Co. v. General Motors Corporation, 5 Cir., 199 F.2d 566; Grandey v. Pacific Indemnity Co., 5 Cir., 217 F.2d 27.

In Copeland Motor Co. v. General Motors Corporation, supra, Judge Hutcheson, speaking for the court, said 199 F.2d 567:

"Drawn to give effect to the principle that cases should, as far as possible, be determined on their merits and not on technicalities, the courts have given Rule 15 not lip service merely but full fealty."

In Grandey v. Pacific Indemnity Co., supra, Judge...