Kansas City, Ft. S. & M.R. Co. v. Morgan

• Citation: 76 F. 429
• Decision Date: 05 October 1896
• Docket Number: 407.
• Parties: KANSAS CITY, F.T. S. & M.R. CO. v. MORGAN.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

76 F. 429

KANSAS CITY, F.T. S. & M.R. CO. v. MORGAN.

No. 407.

United States Court of Appeals, Sixth Circuit.

October 5, 1896

The plaintiff below, C. H. Morgan, sued the defendant below in the circuit court of Shelby county, Tenn., in March, 1895 for negligence which occurred in November, 1891, and which negligence is alleged to be the direct and proximate cause of an injury to the plaintiff, by reason of which his leg was amputated. The neglect alleged upon the part of the railroad company was the failure to furnish a safe and suitable switch engine. The plaintiff, Morgan, was employed by the railroad company as a switchman in its yard at West Memphis, and it is alleged that the company furnished for work in said yard a defective and wholly unsuitable and unsafe switch engine, and one dangerous to the lives of its employes; that the engine had no brakes, its valves were leaky, and it was what is known in railroad parlance as a 'bucker'; that it was unmanageable in the hands of a competent and skillful engineer, and entirely unsuited for the work of a switch engine, all of which was known to the railroad authorities and unknown to the plaintiff, Morgan; and that the unsuitableness of this engine was the cause of the injury. The case was removed from the circuit court of Shelby county to the circuit court of the United States, where the railroad company filed, among other pleas, the following: '(3) And the said Kansas City, Ft. Scott & Memphis Railroad Company by Adams & Trimble, its attorneys, comes and defends the wrongs and injuries, when,' etc., 'and says that the said C. H. Morgan ought not to have or maintain his aforesaid action against the defendant, because it says that the said C. H. Morgan heretofore, to wit, at the January term, in the year 1893, in the circuit court of Shelby county, state of Tennessee, then being holden at the courthouse at Memphis, in said county, impleaded the Kansas City, Ft. Scott & Memphis Railroad Company in a certain plea of trespass, or trespass on the case, to the damage of the said C. H. Morgan in the sum of five hundred dollars ($500), for the same identical acts of negligence in the said declaration mentioned, which said suit was prosecuted by the said C. H. Morgan, by his next friend, Sam H. Morgan. Such proceedings were then had in said court in that plea that afterwards, to wit, at the same term, said C. H. Morgan, by the consideration and judgment of said court, recovered in the said plea against the Kansas City, Ft. Scott & Memphis Railroad Company, for said acts of negligence specified in the declaration, $100, and for the costs of the suit the further sum of $8.35, whereof the said railroad company was convicted, as by the record and proceedings therein remaining in the said circuit court of Shelby county now appears, which court had jurisdiction of the subject-matter and of the parties. Thereafter the said Kansas City, Ft. Scott & Memphis Railroad Company paid to the clerk of the said circuit court of Shelby county the sum of $100 damages and $8.35 costs, in full satisfaction and discharge of the same, being authorized by the laws of the state of Tennessee to discharge said judgment in said manner. This defendant further says that this judgment was never appealed from, reversed, set aside, annulled, or in any manner modified, by any court whatever, all of which said railroad company is ready to verify by the record, and that the same is fully paid and satisfied, and that the said plaintiff, C. H. Morgan, has received the same. Wherefore it prays judgment if the said C. H. Morgan ought to have or maintain his said action against the said railroad company.'

To this plea the plaintiff filed a replication as follows: 'And further replying herein, plaintiff says that heretofore, to wit, on the 6th day of November, 1891, he was injured in the manner set forth in his declaration. At the time of his injury he was still a minor, and did not attain his majority until the 1st day of November, 1894. And heretofore, prior to the 3d day of March, 1893, the plaintiff was still a minor and legally incompetent to make and enter into any valid contract not beneficial to himself. And prior to the day and date last aforesaid one Sam H. Morgan, the father of the plaintiff, who was an honest laborer, but ignorant and illiterate, made and entered into a contract with the defendant to accept one hundred dollars as a settlement in full of all demands which plaintiff had and held against the defendant on account of the wrongs and injuries in plaintiff's declaration pleaded. Plaintiff charges that the said contract was made by the defendant through the agency of its attorneys, Adams & Trimble, a firm composed of E. F. Adams and C. H. Trimble, both of whom are lawyers of great ability and splendid attainments, and it was made on the part of Sam H. Morgan in person, and without the aid or advice of attorneys. And the said attorneys of the defendant, realizing that the said Sam H. Morgan could not by the contract aforesaid legally bind this plaintiff, then a minor, and desiring zealously and faithfully to represent the interests of their clients, on the 6th day of March, 1893, advised and procured the said Sam H. Morgan to file a suit in the circuit court of Shelby county, Tennessee, against the defendant, in the name of Chas. H. Morgan, by next friend, Sam. H. Morgan, which said suit was No. 6,025 on the docket of said court, for the sum of five hundred dollars, on account of the same wrongs and injuries alleged in plaintiff's declaration, with the design and understanding at and prior to the institution of said No. 6,025 that the judgment therein to be rendered should be for the sum of one hundred dollars. Plaintiff charges that there was no real controversy between the parties to said cause No. 6,025, but it was their purpose and intent to render that contract valid by a simulated and pretended judgment, which they knew to be in law fraudulent and void. And on the same day, to wit, the 6th of March, 1893, S. H. Morgan and Adams & Trimble caused a summons to be issued in said cause No. 6,025 without having first given security for the costs; and on the same day, to wit, the 6th of March, 1893, the defendant, by its attorney, C. H. Trimble, acknowledged service of said summons; and on the same day, to wit, the 6th of March, 1893, in pursuance of the said purpose and intent, they filed and caused to be filed the declaration in said cause; and on the same day, to wit, the 6th of March, 1893, they appeared before the honorable circuit court of Shelby county, Tennessee, and by consent took a judgment for the plaintiff for one hundred dollars; and on the same day, to wit, the 6th of March, 1893, they caused to be entered a judgment for the plaintiff for one hundred dollars. All of which said summons, declaration, pleas, and judgment will be exhibited to the court on the trial hereof. Plaintiff alleges that W. B. Edrington, Esq., signed the declaration as attorney for the plaintiff in said cause, but he signed the same as a mere matter of form, and as an accommodation to Messrs. Adams & Trimble, with the understanding that the amount of the judgment to be rendered had been already settled and agreed upon. Wherefore plaintiff prays that that which defendant pleads in bar of his right to a recovery herein, notwithstanding the same appears to be the judgment of a court, is in truth and in fact no judgment, but was an unauthorized use of the court for the purpose of giving color of validity to a contract known by them to be void. Plaintiff says that he does not charge, and does not wish to be understood as charging, that Messrs. Adams & Trimble and Edrington, who are reputable and honorable attorneys of this court, were in the matters alleged acting corruptly, or were guilty of immoral fraud, but simply insists that the said acts constitute legal fraud; that, there being no real adversaries and no real controversy before the court, the pretended judgment is a nullity and void.'

To this replication the railroad company filed a demurrer, and this demurrer, upon hearing, was overruled by the court. The demurrer having been overruled, there was a traverse and joinder of issues, and the cause was heard before a jury, and a judgment rendered in favor of the plaintiff for the sum of $2,500. In addition to the general verdict the jury found specially that the engine furnished by the railroad company and used when the accident occurred 'was defective (1) in being too light for the work required; (2) in having neither steam, air, nor vacuum brakes, and (3) that the valves must have been defective in order for her to have received steam, producing the action which caused the accident. ' It appeared on the trial of the issues that the engine was a light engine, and not the one that was usually used, but one that was an extra one in the yard, and used in case of emergency; that it had no brake, nor had it relief valves, and the throttle valve was somewhat leaky. The court refused to return a verdict for it, and left it to the jury whether or not the engine thus used, without the brake and without relief valves, was reasonably safe to be thus used, and whether or not in fact these defects in the engine were the proximate cause of the injury to plaintiff. The defendant, as part of its evidence, filed a copy of the declaration, orders, and judgment in the state court, pleaded as a bar, which judgment is as follows:

'And on, to wit, March 6, 1893, March term, 1893:

'Charles H. Morgan, by Next Friend, Sam. H. Morgan, v. The Kansas City, Ft. Scott & Memphis Railroad Co.

'Judgment.

'This cause having come on this day to be heard before the court sitting as a jury, and the plaintiff appearing in person and by W. B.

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