Lindsay v. Acme Cement Plaster Co.

• Decision Date: 02 November 1922
• Docket Number: No. 30.,30.
• Citation: 220 Mich. 367,190 N.W. 275
• Parties: LINDSAY v. ACME CEMENT PLASTER CO. et al.
• Court: Michigan Supreme Court

220 Mich. 367

190 N.W. 275

LINDSAY

v.ACME CEMENT PLASTER CO. et al.

No. 30.

Supreme Court of Michigan.

Nov. 2, 1922.

Error to Circuit Court, Kent County.

Action by Alice E. Lindsay, as special administratrix de bonis non of estate of Luther C. Lindsay, deceased, against the Acme Cement Plaster Company and another. Judgment for defendants, and plaintiff brings error. Affirmed.

Argued before FELLOWS, C. J., and WIEST, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ. Clapperton & Owen, of Grand Rapids (Angell, Turner & Dyer, of Detroit, of counsel), for appellant.

Knappen, Uhl & Bryant, of Grand Rapids, for appellees.

STEERE, J.

Plaintiff's husband was killed on September 20, 1912, in a derailing accident, while employed by the Lake Shore & Michigan Southern Railway as conductor in charge of a switching crew at Grand Rapids, Mich. He was working with a switching engine and crew, consisting of the engineer, fireman, and a helper. After dinner on the day of the accident they did some switching at the Eagle Mills, and then under his directions the engineer ran the switching engine in over a spur track to defendant Acme Cement Company's plant, where they coupled the front of the switching engine to a car loaded with plaster and proceeded to back out with it to the main line; Lindsay standing on the running board of the tender to the engine, which put him at the front of the train in the direction they were going. While passing around a curve on the spur track, the rails spread and capsized the tender, which fell upon and fatally injured him. He was than about 50 years of age, and an old employee of the Lake Shore Railway, which had elected to come under the Michigan Workmen's Compensation Act (Comp. Laws 1915, §§ 5423-5495).

Soon after his death the Lake Shore Railway Company entered into an agreement with plaintiff, as executrix of her husband's estate, to pay her $3,000 in settlement for her husband's death, being the maximum amount of compensation for accidental death of an employee specified in the Michigan Workmen's Compensation Act. On November 20, 1912, under authority of the probate court of Kent county, and in consideration of the payment of $3,000 as specified, she gave the Lake Shore Railway Company a receipt, acknowledging satisfaction in full, reading in part as follows:

‘I hereby release and discharge the said company from all claims and demands against it, and especially from all liability for damages of every kind, nature, or description, arising from injuries suffered or death sustained by Luther Lindsay, deceased, at or near Grand Rapids, Mich., on or about the 20th day of September, 1912, said settlement being authorized by order of the probate court of Kent county, in the state of Michigan; and I hereby agree that this release shall be a complete bar in any action which might be brought otherwise at common law or under any state or federal statute for the benefit of any person or estate whatsoever, for the recovery of damages on account of said injuries or death.’

On December 1, 1920, a further instrument was executed by the parties, in form and amount approved by the Industrial Accident Board, stating the circumstances, of the accident, and concluding as follows:

‘It is agreed by the parties hereto that the said Lake Shore & Michigan Southern Railway Company shall pay to the said Alice Lindsay, administratrix, the sum of three thousand ($3,000.00) dollars, in weekly installments of ten ($10.00) dollars. Deceased was earning 35 cents an hour at the time of his death.’

Some time thereafter the Lake Shore Railway Company was absorbed by the New York Central Railroad Company, and on August 30, 1915, plaintiff, as ‘administratrix of the estate of Luther C. Lindsay, deceased,’ and ‘individually,’ subscribed an assignment which, following recitals touching the events related, reads as follows:

‘Now, therefore, for and in consideration of the payment of said sum ($3,000), and in further consideration of one dollar and other valuable consideration paid to the undersigned, I, the said Alice Lindsay, personally and as administratrix of the estate of Luther C. Lindsay, deceased, do hereby sell, assign, transfer, and set over unto the said Lake Shore & Michigan Southern Railway Company, now the New York Central Railroad Company, any and all rights or causes of action, claims, or demands whatsoever, which I, either as administratrix as aforesaid or individually, may have against the Acme Cement Plaster Company or the Grand Rapids Terminal Belt Railway Company, corporations organized and existing under the laws of the state of Michigan, and by whose negligence it is claimed the said Luther C. Lindsay met his death. And I, both as administratrix as aforesaid and individually, hereby authorize said Lake Shore & Michigan Southern Railway Company, now the New York Central Railroad Company, at its own expense, including counsel for said Alice Lindsay, to bring suit against said Acme Cement Plaster Company and the Grand Rapids Terminal Belt Railway Company, either in its own name or in my name as an individual, or in my name as administratrix, as aforesaid, to enforce any such claim, right, or demand, and in the event recovery be had against said Acme Cement Plaster Company and the Grand Rapids Terminal Belt Railway Company, or either of them, as a result of suit or otherwise, the said Lake Shore & Michigan Southern Railway Company, now the New York Central Railroad Company, is authorized to retain the whole thereof, providing the amount thus recovered does not exceed above all costs and expenses of collection the sum of $3,000, and if such sum does thus exceed $3,000, the said Lake Shore & Michigan Southern Railway Company, now the New York Central Railroad Company, is to return the whole of such surplus as further consideration for this assignment to the undersigned, as administratrix as aforesaid.’

This action was subsequently commenced in the circuit court of Kent county in plaintiff's name as administratrix de bonis non of her deceased husband's estate to recover of defendants damages for his death, charged to their negligence in failing to maintain the spur track where the accident occurred in a suitable and safe condition for the operation of trains over it. An amended declaration was filed for plaintiff on March 15, 1921, which was met by an amended plea, and the case was soon thereafter tried, resulting in a directed verdict for defendants, with judgment thereon.

It appears undisputed that the work in which Lindsay was engaged at the time of the accident resulting in his death involved movement of a car in interstate commerce, to which the Michigan Workmen's Compensation Act did not apply, and it is conceded an agreement between the parties under that act is not conclusive, as its provisions could only operate upon parties bound by it. The spur track on which the accident occurred was owned by defendant Terminal Belt Railway Company, which was organized and incorporated by a Mr. Lazarus, who became its president. He was also a large stockholder in and president of defendant Acme Cement Plaster Company. The track was constructed in 1905, at the same time as the Acme Company's plant, which was the only industry the Terminal Belt Railway Company served. It had no rolling stock or stations, carried no passengers, and did not receive or dispatch freight. It spur track was built by the Lake Shore Railway Company for Lazarus with funds furnished by him.

The Lake Shore Railway Company had no written agreement with the Terminal Belt Railway Company for the use of this spur, but was given the right to switch cars over it to and from the Acme Company's plant as its business required, and customarily moved over it about 50 cars per month. On different occasions when the track was out of repair the Lake Shore Railway notified the Terminal Belt Railway of its condition, with cost of suggested repairs, and when so authorized made them at the latter's expense. Correspondence between the two companies on that subject shows that the Terminal Belt Company insisted on reserving full control over this spur. In refusing the Lake Shore Railway's overtures for a written agreement, it replied in part:

‘We are paying for this side tract just exactly what it costs, and it belongs to us, and we don't give your company and rights to use this side track, any more than you give us a right to use your main line. We expect to operate a terminal railroad and use our own engines, and until such time as we get ready to do this, of course, we will grant you a right to run your engine over this track.’

Although this was written in 1905, those expectations had not materialized when the accident occurred, and during the intervening years the spur continued to be owned by and maintained at the expense of the Terminal Belt Railway, and serve the needs of the Acme Company, of which Lazarus was a heavy stockholder, owning, with his family, $425,000 of its $1,000,000 capital stock, while the Lake Shore Railway continued to run its switch engines over the spur in moving the Acme Company's cars to and from its plant. When this accident occurred no repairs had been made on the track for about 11 months, and the fact that it was in poor condition was known to all parties in interest. The Lake Shore Railway had received repeated reports from its section foreman and roadmaster to that effect, and on four...