Hill v. Northern Pac. Ry. Co.

• Decision Date: 17 March 1902
• Docket Number: 695.
• Citation: 113 F. 914
• Parties: HILL et al. v. NORTHERN PAC. RY. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

113 F. 914

HILL et al. v. NORTHERN PAC. RY. CO.

No. 695.

United States Court of Appeals, Ninth Circuit.

March 17, 1902

Lewis Hardin & Albertson, for plaintiffs in error.

B. S Grosscup, for defendant in error.

Before McKENNA, Circuit Justice, and GILBERT and ROSS, Circuit Judges.

ROSS Circuit Judge.

This is an action at law, commenced in one of the courts of the state of Washington to recover damages growing out of the death of Alexander H. Hill, who was the husband of one of the plaintiffs and the father of the other, alleged to have been caused by the negligence of the defendant railroad company on whose motion the case was transferred to the court below. The deceased was a brakeman, and was on top of a car as the train was passing along a portion of the track between a tunnel and a snowshed, from which position he was thrown and killed in entering the shed. The defendant answered, denying any negligence on its part, alleging that the decedent's death was caused by his own negligence, and as an affirmative defense set up that on and prior to July 8, 1897, the plaintiffs' claims for damages growing out of the death of the deceased were taken up and discussed between the defendant and the plaintiff Teresa Hill, 'as an individual and as the surviving widow of said Alexander H Hill, and also as the guardian of Maud Isabel Hill' (the other plaintiff), resulting in a compromise and settlement between the parties, by the terms of which it was agreed that $700 should be paid to her as the surviving widow of the deceased, and $500 as the guardian of his minor child, Maud Isabel, in full satisfaction of all damages occasioned by the death of Alexander H. Hill, which respective sums of money were so paid by the defendant railroad company, in consideration of which the plaintiff Teresa Hill thereupon executed two releases and satisfactions in writing,-- one on her own behalf, and the other for and on behalf of her ward, Maud Isabel Hill, being thereto authorized by the probate court, which had appointed her such guardian. Each of the releases expressly states that the plaintiff Teresa Hill was fully informed in respect to all of the facts attending the accident by which the deceased lost his life, which facts had been stated to counsel, who advised the compromise and settlement of the claims for damages, and that the moneys so paid by the defendant railway company and received by her were in full satisfaction of the claims. To this affirmative defense the plaintiffs filed in the court below a reply, in which was admitted the execution of the releases in pursuance of the alleged compromise agreement, and the payment and receipt of the respective sums of money was received by the plaintiff Teresa Hill, either as guardian or in her own right, 'by or with the advice of counsel,' or that she had at the time of the execution of the releases full knowledge as to the manner in which the accident occurred, and by way of new matter, and as a further and affirmative reply to the affirmative defendant of the defendant company, the plaintiff alleged that after the death of her husband, acting for herself and their minor child, the plaintiff Teresa seasonably and diligently investigated to the best of her ability the facts and circumstances surrounding the accident; that she had no means at or after the time of the accident of ascertaining whether warning devices, called 'telltales,' were suspended in their proper place across the track of the defendant's road over which the train on which the deceased was a brakeman had to pass in going from the tunnel to the snowshed, except from the statements of employes of the defendant company, for the reason that within a few hours after the accident telltales were placed across the track at the point referred to, of which fact the plaintiffs were kept in ignorance by the express direction of the defendant company; that at the time of the accident no such telltales or other warning devices were in place, of which fact the plaintiffs were likewise kept in ignorance; that after the accident the agent of the defendant company having in charge the settlement of such claims for damages persistently sought a compromise and settlement of the plaintiffs' claims, and in so doing repeatedly represented to the plaintiff 'teresa that the telltales were in their proper place at the time of the accident, and that the deceased was thereby seasonably warned of his proximity to the mouth of the snowshed, and that his death was solely due to his failure to heed the warning thus given; that these and other like representations were wholly false, and so known to be, by the defendant company's agent, and were so made for the fraudulent purpose of securing a compromise and settlement of the plaintiffs' claims; and that it was solely by reason of such fraudulent representations, relied on by the plaintiffs as being true, that the settlement was agreed to and the releases executed. The reply also alleges that the proceedings in the probate court in respect to the authorization and confirmation of the settlement of the claim of the minor plaintiff for damages was taken by the attorneys for the defendant company, and were never examined by any attorney for either of the plaintiffs. It admits it to be true that the plaintiff Teresa Hill consulted counsel shortly after the accident in regard to the liability of the defendant company, and that 'upon the facts of the case as they then appeared to her, and as they had been represented to her' by the defendant, her counsel advised that it was doubtful whether the defendant was liable; but that the true facts were not then known to her or her counsel, and were not discovered until a few days before the commencement of this action. The reply of the plaintiffs to the affirmative defense of the defendant contains no averment of a tender of the money received by them upon the compromise and settlement, nor any offer to return the money so received, but does aver a willingness on the part of the plaintiffs 'to deduct from the amount to which they are entitled by reason of their damages as set forth in the complaint (alleged to be $20,000 in all) said sum of $700 and said sum of $500, together with interest thereon at the legal rate from July 8, A.D. 1897, and hereby credit said sums, with interest, upon their claims against said defendant for the aforesaid damages. ' The court below (104 F. 754) sustained a demurrer to the reply, which ruling presents the question for decision.

It is conceded that under the provisions of the statute of the state of Washington, as well as a number of other states, a release of a right of action may be avoided in an action at law by showing that it was obtained by means of false and fraudulent representations; and the position is taken on behalf of the plaintiffs in error that the same right exists in the federal courts by virtue of section 914 of the Revised Statutes, which provides that:

'The practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the circuit and district courts, shall conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the state within which such circuit and district courts are held, any rule of court to the contrary notwithstanding.'

It is thoroughly settled that it was not the design of this section to abolish, in the federal courts, the distinction between actions at law and suits in equity. Robinson v. Campbell 3 Wheat. 212, 4 L.Ed. 372; Whitehead v. Shattuck, 138 U.S. 146, 11 Sup.Ct. 276, 34 L.Ed. 873; Sheffield v. Witherow, 149 U.S. 574, 13 Sup.Ct. 936, 37 L.Ed. 853; Lindsay v....