Hogue v. Southern Co

• Court: U.S. Supreme Court
• Writing for the Court: PER CURIAM; HARLAN
• Citation: Hogue v. Southern Co, 390 U.S. 516, 88 S.Ct. 1150, 20 L.Ed.2d 73 (1968)
• Decision Date: 01 April 1968
• Docket Number: No. 889,889
• Parties: Henry Harold HOGUE v. SOUTHERN R. CO

390 U.S. 516

88 S.Ct. 1150

20 L.Ed.2d 73

Henry Harold HOGUE

v SOUTHERN R. CO.

No. 889.

Decided April 1, 1968.

Samuel D. Hewlett, Jr., for petitioner.

Charles A. Horsky, for respondent.

PER CURIAM.

We granted the petition for certiorari in this case over the opposition of the respondent carrier. 390 U.S. 903, 88 S.Ct. 819, 19 L.Ed.2d 869. The writ presents for review a judgment in favor of the respondent carrier entered by the Georgia Court of Appeals upon a holding that a plaintiff under the Federal Employers' Liability Act, 35 Stat. 65, as amended, 45 U.S.C. § 51 seq., who attacks a previously executed release on grounds of mutual mistake of fact, must, as a condition to bringing his suit, tender back to his carrier employer the consideration he received for the release. 116 Ga.App. 194, 156 S.E.2d 412, certiorari denied by the Supreme Court of Georgia. Respondent carrier has now filed before argument a 'Memorandum Confessing Error' which states 'that its insistence before the Georgia courts that the applicable law required a tender, and the decision of the Georgia Court of Appeals requiring a tender were erroneous. Accordingly, respondent does not desire to offer brief or argument against petitioner on this issue, and confesses error.'

Petitioner had suffered an injury to a knee while working in respondent carrier's shops. He executed a release for a consideration of $105, and did not offer to return the consideration before instituting this action. He pleaded that the release was obtained by reason of a mistake of fact of both parties as to the extent of his injuries, alleging specifically that he and the carrier had relied on the assurances of the carrier's doctor that he had only a bruised knee and was not permanently injured, whereas later it was determined that his injury was permanent and resulted in his having two operations, one of which caused him to lose a kneecap.

The question whether a tender back of the consideration was a prerequisite to the bringing of the suit is to be determined by federal rather than state law. Dice v. Akron, C. & Y.R. Co., 342 U.S. 359, 361, 72 S.Ct. 312, 314, 66 L.Ed. 398. We reject the suggestion that a tender back of the consideration is excused only where fraud enters into the execution of the release. See, e.g., Graham v. Atchison, T. & S.F.R. Co., 9 Cir., 176 F.2d 819, 826. We hold that a tender back is also not requisite when it is pleaded that the carrier and the employee entered into the release from mutual mistake as to the nature and extent of the employee's injuries. We have held that an express agreement of an injured employee who obtained funds from a carrier to help defray living expenses first to return the sum paid as a prerequisite to the filing and maintenance of an action under the FELA was void under § 5 of the Act.^* Duncan v Thompson, Trustee, 315 U.S. 1, 62 S.Ct. 422, 86 L.Ed. 575. There is no occasion to decide whether the release here...