Gilmore v. Southern Railway Company, Civ. A. No. 11478.

• Decision Date: 18 May 1964
• Docket Number: Civ. A. No. 11478.
• Citation: 229 F. Supp. 198
• Parties: Katie Marie GILMORE et al. v. SOUTHERN RAILWAY COMPANY et al.
• Court: U.S. District Court — Eastern District of Louisiana

229 F. Supp. 198

Katie Marie GILMORE et al. v. SOUTHERN RAILWAY COMPANY et al.

Civ. A. No. 11478.

United States District Court E. D. Louisiana, New Orleans Division.

May 18, 1964.

Maurice E. Landrieu, New Orleans, La., for plaintiffs.

W. Ford Reese, New Orleans, La., for American Ins. Co. and Royal Indemnity.

Thomas J. Wyllie, Robert B. Acomb, Jr., New Orleans, La., for Southern Railway Co. and New Orleans Terminal Co.

FRANK B. ELLIS, District Judge.

The plaintiffs in this litigation are Mrs. Katie Marie Gilmore, Luther Henry Gilmore, Mrs. Sara Lean Duncan, Katie Mae Gilmore, Dorris Louise Gilmore and Dessye Lois Gilmore, the widow and children of Henry Gilmore, deceased. All plaintiffs are residents of the State of Mississippi, with the exception of plaintiff Luther Henry Gilmore, a resident of the State of Louisiana.

The defendants are the Southern Railway Company and/or New Orleans Terminal Company, alleged employers of the deceased. A third defendant is the American Insurance Company, liability insurer of R. P. Farnsworth & Company, Inc. Suit is brought against American Insurance Company under the provisions of the Louisiana Direct Action Statute, LSA-R.S. 22:655.

The plaintiffs assert that on or about August 11, 1959, the decedent was employed by the Southern Railway System, and/or New Orleans Terminal Company on an interstate line. At that time, Farnsworth Company, Inc., was a contractor or sub-contractor for decedent's alleged employers, and was engaged in the removing or handling of cross ties by the use of a crane.

It is asserted that on that date the decedent was injured as a direct consequence of the negligence of the employees of Farnsworth Company, Inc., and the negligence of his employer, the Southern Railway Systems and/or New Orleans Terminal Company in failing to furnish a safe place to work.

After the alleged injury the decedent apparently returned to his home in Hattiesburg, Mississippi, where he retained the service of an attorney named Earle Wingo to represent him in his claim for injuries sustained. Settlement negotiations were successfully concluded on August 10, 1960, at which time the decedent personally appeared at his attorney's office and after a full explanation to decedent of all of his rights, in the presence of his attorney, the decedent executed a settlement and release of all claims against all parties.

From the affidavits in the record it is apparent that the claim was settled for the sum of Seven Hundred Fifty Dollars, one half of which was paid by the employer, New Orleans Terminal Company, and one half paid by the insurer of the Farnsworth Construction Company.

On August 31, 1960, some twenty-one days later, the decedent died, allegedly as a direct consequence of the injuries he sustained on August 11, 1959. On August 31, 1961, the plaintiffs brought this action against the alleged employers under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. and against the insurer of the R. P. Farnsworth Company, Inc., under Article 2315 of the LSA-Civil Code.

The matter is presently before the Court on motions of all defendants to dismiss and alternatively for summary judgment. After oral argument plaintiffs voiced no objection to the dismissal of the Southern Railway Company, it appearing that the decedent was not an employee of that company and that Southern was not involved in any of the work being performed at the time of the original injury.

Upon oral argument, and in its brief, New Orleans Terminal Company urges that there is no right of action on the part of the heirs or widow of the decedent since any claim that he had or may have had was clearly extinguished as a result of the settlement and release agreement. Defendant Terminal Company directs the Court's attention to Mellon v. Goodyear, 277 U.S. 335, 48 S.Ct. 541, 72 L.Ed. 906, as dispositive of the issues between it, the Terminal Company, and the plaintiffs. The Court agrees that Mellon and related cases do hold forth for defendant's position.

In the Mellon case, an employee of the railroad sustained personal injuries on July 31, 1919, and, subsequently, on March 16, 1920, he settled with his employer accepting the agreed sum and executing a general release. On May 4, 1920, he died. On April 19, 1921, his widow filed suit in the District Court, Republic County, Kansas, against the employer in an effort to recover damages for his death as a result of the injuries sustained during his period of employment.

In answering special interrogatories the jury found that no fraud attended the settlement of March 16, 1920; that the decedent was mentally capable of transacting business at the time; that there was no mutual mistake as to his physical condition; and, that the release was not given under the mistaken belief that the material results of his injuries had disappeared. The jury rendered a verdict in favor of the administratrix in the amount of $5,000. The Supreme Court of Kansas affirmed, Goodyear v. Davis, 121 Kan. 392, 247 P. 446, and the United States Supreme Court granted certiorari, 273 U.S. 684, 47 S.Ct. 240, 71 L.Ed. 839.

Before the United States Supreme Court the petitioner, Mellon, Director General of Railroads, argued that under the Federal Employers' Liability Act, a settlement and release of all claims for personal injuries made in good faith by an injured employee,...