Lumley v. Wabash R. Co.

• Citation: 76 F. 66
• Decision Date: 22 June 1896
• Docket Number: 360.
• Parties: LUMLEY v. WABASH R.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

76 F. 66

LUMLEY v. WABASH R.

No. 360.

United States Court of Appeals, Sixth Circuit.

June 22, 1896

Appellant's bill was dismissed upon demurrer for want of equity. It contained, in substance, the following statement: That the complainant was a passenger on the Wabash Railway, in charge of a shipment of horses owned by his employer, which were being transported from Ridgetown, in the province of Ontario to Danville, in Illinois; that while the car in which said horses were was in the yards of the Wabash Railway Company at Detroit, Mich., a collision occurred between said car and a locomotive operated by the servants of the Wabash Railway Company, whereby complainant, who was in the car in discharge of his duties, sustained great and permanent bodily injuries that this collision occurred on the night of October 3, 1890 and was wholly due to the fault and negligence of the servants of the defendant company; that, notwithstanding his injuries, he pursued his journey; that on the following morning he was attended by a surgeon in the employ of the company, who placed his arms in splints; that it was found that the complainant was suffering from two injuries,-- a superficial contusion on the forehead and a fracture of the right arm between the elbow and wrist; that complaint was made of pain in the right shoulder, but that said surgeon made no examination of the parts, assuring complainant that the pain he noticed was due to the broken arm, and was wholly 'sympathetic'; that upon a second visit to the office of this surgeon he met one Austin, who represented himself as anxious to settle with complainant for 'the fracture of his arm and the contusion' above described; that complainant was asked what his regular wages were; that he replied that he was a carpenter, and earned eight dollars per week; that Austin then asked the said surgeon how long it would be before complainant would be well and able to resume his work; that the surgeon answered 'that the contusion was trivial, and that the fracture would be entirely well in about eight weeks'; that said surgeon more than once assured your orator that he would be able to resume his daily occupation 'in not to exceed eight weeks at the very outside'; that Austin calculated what orator would earn in eight weeks at $64; that upon a suggestion that his arm might require a readjustment of the splints on his arrival at home, Austin said that he would pay the difference between $65 and $75 'for that purpose,' and would pay orator $75 on account of said injuries; that this was accepted; that it was never claimed or pretended that the company was not liable for the injuries sustained in said collision; that a release was drawn up by said Austin, 'which he pretended to read, * * * but that he read same with great rapidity whether he read all of it your orator does not know, but he charges that he did not'; 'that all your orator understood him to read was with regard to the receipt of seventy-five dollars, and the expression, 'fracture of the arm';' that no copy of this release was given orator, and that he never afterwards saw it until filed in court in a suit to be mentioned hereafter; that in May or June, 1894, on request of orator's counsel, a copy of same was furnished complainant, when, and for the first time, he became aware that it contained terms which he never understood as the subject of settlement or consideration. The release aforesaid was in these words: 'Whereas, on the third day of October, A.D. 1890, I, Ephraim Lumley, of Ridgetown, Ontario, Canada, was a passenger of the Wabash Railroad Company, and as such passenger was engaged in the discharge of my duty in caring for horses loaded in car, said car standing on tracks in R.R. Yard, Detroit, Mich., at time said car, wherein I was, was run against and upon by a locomotive, giving car heavy shock, whereby I was injured, on the Third district, E. Division, of said railroad; and whereas, I, the said Ephraim Lumley, received certain injuries, to wit, severe contused and lacerated wound on forehead, right side, fracture of right arm between wrist and elbow, and various injuries and contusions, both internally and externally, in and on various parts of my body; and whereas, I, the said Ephraim Lumley, believe that my injuries are the direct result of the negligence of said railroad company, its officers, agents, and employees; and whereas, the said railroad company denies any and all negligence on the part of itself, its officers, agents, and employees, and denies any and all liability for damages for the injuries so as aforesaid by me sustained, but by reason of an offer of compromise, made by me, the said Ephraim Lumley, for the purpose of avoiding litigation, to receive and accept the sum of seventy-five dollars in full accord and satisfaction for all claims for damages which I may or might have, either at common law or by virtue of any legislative enactment of the state of Michigan, for the injuries aforesaid, have paid to me the said sum of seventy-five dollars: Now, therefore, in consideration of the premises, and of the payment to me of the aforesaid sum of seventy-five dollars, the receipt whereof I do hereby acknowledge, remise, quitclaim, and forever discharge the said the Wabash Railroad Company, its leased and operated lines, of and from all actions, suits, claims, reckonings, and demands for, on account of, or arising from injuries so as aforesaid received, and any, every, and all results hereafter flowing therefrom. Witness my hand and seal this sixth day of October, A.D. 1890.'

The bill then charges that, so far as said release undertakes or purports to release or discharge said company from liability for any injury except the head contusion and fracture of the arm, and so far as it recites that there was a controversy as to the liability of the company 'the same is false and fraudulent, and was imposed upon your orator fraudulently, and without proper reading upon the part of said claim agent; and that orator never intended to execute any such paper, and no such agreement was ever made between the parties. ' The bill then states in a detailed way that the shoulder trouble increased, and that subsequently it was discovered that the supposed 'sympathetic pain' in the shoulder and adjacent parts had an independent origin, the shoulder having been dislocated and fractured; that from these unknown injuries to the shoulder complainant was for a long time confined and suffered much distress, and that from those injuries he is and has been permanently disabled, and is unable to support himself through his avocation; that it was never intended to release said company from liability for any injuries other than those known and discussed at the time; that he trusted entirely to the statement and representation of the said chief surgeon as to the character and extent of his injuries; that he did not read the release prepared for him, and relied entirely upon the good faith and honesty of the servants of the company who prepared it. It charges that if said surgeon knew the fact that he had sustained serious and independent injuries to his shoulder, his representations that the pain in his shoulder was purely sympathetic was an actual fraud; that, on the other hand, if he was ignorant, the language of the release is too broad, in that it purports to cover 'various injuries and contusions, both internally and externally, in and on various parts of my body'; that the words quoted were inserted fraudulently, and were no part of the subject-matter of the settlement, and were inserted without the knowledge and intent of the complainant. The bill alleges that in May or June, 1894, a copy of said release was obtained from said company, until which time he was ignorant of its terms; that under advice of counsel he at once tendered a return of the $75, with interest, which was rejected; that in July, 1894, an action was brought in a state court to recover damages for the injuries so sustained; that the defendant company 'duly moved' that suit into the circuit court of the United States for the Eastern district of Michigan; that in January, 1895, that case came on for trial; that after the conclusion of the evidence and argument the court made an order allowing plaintiff to withdraw a juror upon condition that he would within 30 days file a bill on the equity side of that court for the purpose of avoiding the release aforesaid; that in compliance with that order this bill is filed, and the money received under said release deposited in the registry of the court. By way of excusing the delay in tendering back said money and in filing a bill to cancel or limit said release, the bill states that complainant, owing to his poverty, was unable sooner either to pay back said money or bring suit; that he did not know that the release he had signed embraced this injury until he obtained a copy in May or June, 1894; that he had a good cause of action for the injury to his said shoulder and parts adjacent for an amount exceeding $2,000; that the defendant had no legal defense against such action, and that it has fraudulently set up said release as a defense to said action. The bill prays the cancellation of said release as having been obtained through fraud, or that the court will enjoin defendant from pleading said release as a bar to an action for said injuries to complainant's right shoulder and the adjoining parts, or limit the release so that no right of action will be released save that for the contusion to the head and the fractured arm.

Alfred Lucking, for appellant.

Alfred Russell, for appellee.

Before TAFT and LURTON, Circuit Judges, and HAMMOND, J.

After making the foregoing statement, the opinion was delivered by LURTON, Circuit Judge.

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