Lindsey v. Wabash Ry. Co.

• Decision Date: 01 May 1933
• Docket Number: No. 17367.,17367.
• Citation: 61 S.W.2d 369
• Parties: LINDSEY v. WABASH RY. CO.
• Court: Missouri Court of Appeals

61 S.W.2d 369

LINDSEY v. WABASH RY. CO.

No. 17367.

Kansas City Court of Appeals. Missouri.

May 1, 1933.

Rehearing Denied June 12, 1933.

Appeal from Circuit Court, Caldwell County; Ira D. Beals, Judge.

Action by William Lindsey against the Wabash Railway Company. Judgment for plaintiff, and defendant appeals.

Reversed.

S. J. & G. C. Jones, of Carrollton, Dudley & Brandom, of Gallatin, Homer Hall, of St. Louis, Davis & Ashby, of Chillicothe, and Andrew Field, of Kingston, for appellant.

Kelly, Buchholz & O'Donnell, of Kansas City, and Garland Wilson, of Bethany, for respondent.

BLAND, Judge.

This is an action for damages for personal injuries, brought under the Federal Employers' Liability Act (45 USCA §§ 51-59). Plaintiff recovered a verdict and judgment in the sum of $4,000.00 and defendant has appealed.

Plaintiff, a resident of Alexander, Illinois, brought this suit in the circuit court of Daviess county, in this state, to recover damages for personal injuries received by him on November 29th, 1929, at a crossing of a public highway with defendant's railroad, about 2 miles east of Alexander. The injuries were caused by a collision between an automobile being operated to the south over the crossing and a west-bound motor handcar, on which plaintiff, a section laborer employed by defendant, was riding to Alexander, after his day's work, with his section crew. Plaintiff sued under the Federal Employers' Liability Act.

The motor handcar upon which plaintiff was riding was about 6 feet long and 4 feet 8 inches wide. It had constructed therein a box about 3 feet wide and extending 18 inches above the floor. This box ran lengthwise of the car and was located in its middle. There were four men in the section crew. Two of them were seated upon the handcar with their faces toward the east and two toward the west. The foreman was seated in front facing toward the west. Plaintiff was seated to the rear and facing toward the east. It was the duty of plaintiff and the other man facing east to keep a lookout toward the east and the foreman and the other man facing west to look to the west for possible approaching trains. I was cold and the carburetor of the motor of the handcar was not working well. McMann, a member of the crew, was seated to the south of the center of the motor handcar tending to the carburetor. The foreman was seated to McMann's right and on the north side of the car, tending to the brakes. As they approached the crossing going at a slow rate of speed, the foreman, instead of looking out ahead, as was his duty, was watching McMann working with the carburetor. When the motor handcar reached the crossing it struck an automobile, pushing the same across the road and de-railing the motor car, injuring plaintiff. The curtains of the automobile were up and the operator thereof did not see the handcar prior to the collision. Plaintiff's injuries consisted mainly of a fracture of the bones in both feet above the ankle, which healed in due time, but he now suffers a limitation in the use of his feet. He also received an injury to his spine.

Plaintiff, at all times, was a resident of the state of Illinois, while it appears that defendant is a corporation of the state of Indiana. After this suit was filed defendant procured an injunction in the circuit court of Morgan county, Illinois, restraining plaintiff from prosecuting this suit on the ground that plaintiff was a citizen of that state and that the defense that defendant would make to the suit pending in this state would require the presence of a large number of witnesses, who lived in the state of Illinois where the accident occurred, and that upon this, and similar grounds, the trial in this state would constitute an unreasonable and wrongful interference with, and burden upon, interstate commerce. However, defendant did not procure this injunction until after it had filed its answer in this case and after the injunction was procured it filed an application for a change of venue, resulting in the change of the venue of the case from Daviess county to Caldwell. Defendant, without success, sought to have this action abated in the court below on account of this injunction.

After the instant case was appealed to this court the temporary injunction was made permanent and that case was appealed. The Court of Appeals of the state of Illinois reversed the decree of injunction obtained by defendant in the circuit court of Morgan county in that state, on the ground that the petition for the injunction stated no cause of action.

Defendant's first point is that the court below erred in refusing to abate this suit on account of the injunction aforesaid. There is no question but that the circuit court of Morgan county had jurisdiction to issue an injunction in a case of this kind (State ex rel. v. Nortoni (Mo. Sup.) 55 S.W.(2d) 272), but the decisions are in conflict as to whether the court wherein the suit is pending, the prosecution of which is sought to be enjoined, will stay the proceedings or abate the suit by reason of such an injunction. If it does so, it is not because the Federal Constitution requires it so to act but, solely, upon the ground of comity. Kepner v. Cleveland, C. C. & St. L. R. R. Co., 322 Mo. 299, 310, 15 S.W.(2d) 825, 65 A. L. R. 599; Fisher v. Ins. Co., 112 Miss. 30, 72 So. 846; State ex rel. v. Dist. Court of Hennepin Co., 140 Minn. 494, 168 N. W. 589, 1 A. L. R. 145.

As before stated, prior to the application to the circuit court of Morgan county for the injunction, defendant filed its answer to this cause in the circuit court of Daviess county and so this suit was in process of determination in the latter court when defendant applied to the circuit court of Morgan county, Illinois, for the injunction. It is not claimed that the circuit court of Daviess county may not properly proceed in a case of this kind under the Federal Employers' Liability Act, where there has been no injunction. The right of the circuit court of Daviess county to proceed having attached before the injunction, we know of no rule of comity that would require the court below to discontinue the proceedings in this cause. State ex rel. v. Nortoni, supra; 15 C. J. p. 1183.

Aside from this, even after the injunction was obtained, defendant itself proceeded in the circuit court of Daviess county by taking a change of venue. Defendant seems to think that the court below should have desisted because plaintiff had been enjoined from prosecuting the cause but defendant, at the same time, could consistently proceed in it. In other words, the litigation could proceed, but only at the behest of the defendant. Under these circumstances, the circuit court of Caldwell county could have concluded that defendant had abandoned its injunction proceedings.

We have examined the cases of State ex rel. v. Nortoni, supra, and Ex parte Crandall (Crandall v. Habbe) 53 F.(2d) 909 (C. C. A.) and like cases cited by defendant, and find them not in point. Those cases merely deal with the question of jurisdiction of a state court to enjoin a litigant from prosecuting in a foreign state, a suit under the Federal Employers' Liability Act. We are not basing our holding or opinion upon the theory that the circuit court of Morgan county, Illinois, had no right to issue the injunction, but upon the ground that, conceding that that court had jurisdiction to issue it, the circuit court of Caldwell county was not required to stay the proceedings in this cause on the ground of comity, under all of the facts and circumstances.

The evidence shows that plaintiff, for the sum of $264.00, released his cause of action against the defendant. This release is pleaded in the amended answer. In his reply plaintiff seeks to avoid the release by setting up fraud in its procurement, alleging that defendant represented to plaintiff that said sum was paid as wages and not in release and satisfaction of his claim for damages.

It is the contention of the defendant that the court should have sustained its demurrer to the evidence, for, as a matter of law, there was no fraud in the procurement of the release. The facts, in this connection, show that plaintiff, after the collision spent several weeks in a hospital, located in Decatur, Illinois, and operated by the employees' association of the defendant railway company, and that he was there treated by Dr. Karol, in charge of the hospital. In the early part of March, 1930, Dr. Karol discharged plaintiff as a patient and told him that he could return to work, which plaintiff did on March 17th, and continued to work for defendant at his old job until April 29th, 1930. Dr. Karol told him to see defendant's claim agent, Tead, in Decatur. Plaintiff went to Tead's office on March 13th, 1930, having in his possession a letter that he had written to Tead, showing that he had lost in wages the sum of $264.48.

Plaintiff testified that he read the letter to Tead and gave it to the latter, who also read it; that he asked Tead, "what he was going to allow me for my injuries and Mr. Tead said he would give me my time but have to see to that later on * * * about my injuries"; that Tead had him sign a paper, which he told plaintiff "was a statement for my time"; that the witness did not read the paper he signed because he did not have his glasses with him; that he thought he was signing a statement as to the amount of the wages he had lost; that Tead told him that the witness would receive his money in about 30 days; that no payment of money was made to him at the time he talked to Tead. The paper that he signed reads as follows:

"Wabash Railway Company, Decatur, Illinois, station, March 13, 1930. I hereby agree to accept the sum of $264.00 in full settlement of my claim for personal injuries received by me while employed as a section laborer near Alexander, Illinois, on November 29, 1930, Springfield Division of the Wabash Railway Company; said amount to be paid without...