Louisville & N. R. Co. v. Solchenberger

• Citation: 120 So.2d 704,270 Ala. 536
• Decision Date: 19 May 1960
• Docket Number: 6 Div. 81
• Parties: LOUISVILLE AND NASHVILLE RAILROAD COMPANY v. W. E. SOLCHENBERGER.
• Court: Supreme Court of Alabama

Page 704

120 So.2d 704

270 Ala. 536

LOUISVILLE AND NASHVILLE RAILROAD COMPANY v. W. E. SOLCHENBERGER.

6 Div. 81.

Supreme Court of Alabama.

May 19, 1960.

Gibson & Gibson, Lange, Simpson, Robinson & Somerville, White E. Gibson, Jr., and Wm. L. Clark, Birmingham, for appellant-petitioner.

Jackson, Rives, Pettus & Peterson, Birmingham, for appellee.

COLEMAN, Justice.

This an appeal from a decree of the circuit court denying relief in equity and retransferring the cause to the law side there to be tried on the merits. Appellee has filed a motion to dismiss the appeal. Appellant has filed also in this court an original petition for mandamus in the alternative and seeks to review the decree complained of by that procedure if said decree will not support an appeal.

A decree retransferring a cause from equity back to law where the cause commenced will not support an appeal and the appeal is dismissed, Jones v. Wright, 220 Ala. 406, 125 So. 645; but such a decree may be reviewed by an original application for mandamus, Ex parte Robinson, 244 Ala. 313, 13 So.2d 402, notwithstanding the statutory provision, § 155, Title 13, Code 1940, providing for review of such retransfer order on appeal from the final judgment because the statutory review does not afford an adequate remedy, Ex parte Louisville & N. R. Co., 211 Ala. 531, 100 So. 843. We will, therefore, on the petition for mandamus review the decree here complained of.

On the Merits.

The appellee brought an action at law against appellant under the Federal Employers' Liability Act, Title 45, § 51, U.S.C.A., for personal injuries sustained by appellee while he was employed by appellant as a switchman. We will refer to appellee as plaintiff and to appellant as defendant.

After the action was begun, the parties engaged in negotiation of a settlement. Defendant contends that a binding agreement to compromise and settle the controversy was entered into by the parties. Plaintiff contends that no binding agreement had been entered into.

On stipulation of the parties and agreement to dismiss another suit then pending in the Federal District Court of Pensacola, Florida, between the same parties, the Circuit Court of Jefferson County ordered the instant cause transferred to equity for the sole purpose of determining whether or not plaintiff is bound to consummate the alleged agreement to settle. The transfer order provided that from decision on that question either party should have the right of appropriate review.

After transfer, defendant filed its bill in equity averring that plaintiff had agreed to settle for $7,500 and dismiss the action but had later refused to execute the agreement. The prayer is for specific performance of the agreement.

Plaintiff filed a demurrer to the bill but the demurrer apparently was not ruled on. Plaintiff later filed an answer. Testimony was taken ore tenus.

The cause was submitted on bill of complaint, answer, testimony taken orally, and exhibits. Decree was rendered denying relief to defendant and retransferring the cause to the law side for trial on the merits. Defendant here seeks review of this last decree.

No question is raised as to defendant's right to seek relief in equity by bill for specific performance of an agreement to settle an action at law under the circumstances of the instant case. Plaintiff (appellee) states in brief:

'* * * There is adequate authority for enforcing a settlement agreement in a proceeding such as this. In fact, a recent annotation contains a collection of cases on the subject. 48 A.L.R.2d 1211. We do differ with appellant, however, in the application of existing law to this case.'

Note 1, 48 A.L.R.2d 1211, states that the discussion '* * * does not include a consideration of the right to compel execution of the compromise agreement in the action which is settled thereby.' Landau v. St. Louis Pub. Serv. Co., 364 Mo. 1134, 273 S.W.2d 255, 48 A.L.R.2d 1200, which is the subject of the annotation, appears to be a case in which specific performance of a compromise agreement was granted in the action which was settled by the agreement. In the Landau case, supra, however, it appears that the settlement agreement had been entered into prior to the filing of the petition or complaint in that case. Landau v. St. Louis Pub. Serv. Co., Mo.App., 267 S.W.2d 364. In the instant case, the alleged settlement agreement was entered into on September 27, 1955, which was more than thirteen months after the complaint at law was filed August 10, 1954. This proceeding in equity to require specific performance of a settlement agreement made after action was commenced is unique in this jurisdiction so far as we are advised. Since, however, no objection is made to the procedure her followed, we are not required to decide whether the remedy in equity is or is not appropriate. We lay that question to one side and proceed to consider defendant's right to specific performance on the merits. Both parties invite us to do so and lack of jurisdiction is not apparent. The principle defendant seeks to invoke is not unlike the principle under which equity courts will enjoin an action at law where defendant has an equitable defense unavailable in the law action. Boone v. Byrd, 201 Ala. 562, 78 So. 958; Ex parte Finley, 246 Ala. 218, 20 So.2d 98.

The essential averments of the bill are that plaintiff brought his action at law as aforesaid; that the case was set for trial October 3, 1955, and defendant had prepared its case and arranged for witnesses to attend trial; that thereafter defendant submitted offer to pay $7,500.00 and costs if plaintiff would execute release and dismiss the action; that on September 27, 1955, plaintiff agreed to accept the offer of settlement as evidenced by letter written by plaintiff's attorney to defendant's claim agent as follows:

'September 27, 1955

'* * * We have just been advised by Switchman Solchenberger that he has decided to accept the offer of L&N RR Co. to settle his case for $7,500.00 with the understanding that the settlement is to be consummated by release containing the following provision, viz:

"The seniority rights of W. E. Solchenberger are not impaired or prejudiced by this settlement and release.'

'It is the desire of Switchman Solchenberger that all of the proceeds of the settlement be allocated to damages, that is to say, factors other than wages, so that there will be no tax due or payable on any portion of the proceeds of settlement.

'The following Order will be entered in Jefferson Circuit Case Number 32372-X, being the case of W. E. Solchenberger, Plaintiff, v. L&N RR Co., Defendant, viz.: 'On Motion of Plaintiff, case dismissed and, by agreement, Defendant taxed with all costs of Court.'

'If you will forward to us the release, we will have it properly executed by Switchman Solchenberger.';

that after receipt of letter, defendant cancelled plans for attendance of witnesses; that when the case was called October 3, 1955, the presiding judge entered the following order:

'Continued for order case having been settled.';

that on October 13, 1955, plaintiff refused to perform and continues to refuse to perform the settlement agreement, but defendant is and has been at all times since September 27, 1955, ready, willing, and able to perform.

The answer avers that action was filed and the letter of September 27, 1955, written as averred in the bill; that it was agreed that plaintiff 'would execute a release of any and all damages claimed' in the action and on execution of release would dismiss the action; that the presiding judge entered the order aforesaid on October 3, 1955, but that neither plaintiff nor his attorney was present when the case was called October 3, 1955; that plaintiff's attorney then was engaged in trial of another case and that said order was entered without the knowledge or consent of plaintiff or his attorney and contrary to his attorney's request to hold the case for order at a later date; that the terms of settlement alleged in the bill did not constitute all the terms and conditions of the settlement agreement; that plaintiff did decline to execute the agreement by letter from plaintiff's attorney to defendant's agent as follows:

'October 13, 1955

'* * * It will be remembered that the spirit of the proposed settlement of this case and the motivating influence on Switchman Solchenberger was for Switchman Solchenberger to return to his job with L&N RR Co. That was the sole reason for his insistence that the release that was to be executed for a receited consideration of $7,500.00 should contain the special provision to the effect that his seniority rights would not be prejudiced or impaired by the settlement and release.

'Dr. Batson and Dr. Barranco, physicians and surgeons for L&N RR Co. at Pensacola, have both testified to the effect that Switchman Solchenberger has been physically qualified to return to work as a switchman for L&N RR Co. since June or December of 1954. It was felt that since these physicians and surgeons for L&N RR Co. had qualified Switchman Solchenberger physically for work as a railroad switchman, there would be no difficulty in his returning to work for L&N RR Co. upon disposition of the existing controversy regarding his personal injury claim. However, Switchman Solchenberger informs us that on October 10, 1955, L&N RR Co. required him to submit to a further physical and medical examination by a physician at Mobile, Alabama, and that this doctor has indicated he may not qualify him for work as a switchman. This additional examination is not understood in view of the sworn testimony of the L&N doctors at Pensacola to the effect that Solchenberger is physically qualified to work as a switchman, and it means that Switchman Solchenberger has questioned the good faith of L&N RR Co. in this matter and is inclined to believe that it is the desire and intention of L&N RR Co. to make every effort to prevent his returning to his job as a...