Lumley v. Wabash Ry. Co.

• Decision Date: 16 August 1895
• Citation: 71 F. 21
• Parties: LUMLEY v. WABASH RY. CO.
• Court: U.S. District Court — Eastern District of Michigan

71 F. 21

LUMLEY v. WABASH RY. CO.

United States Circuit Court, E.D. Michigan.

August 16, 1895

The complainant is a citizen of the province of Ontario, in the dominion of Canada, and filed his bill in this cause to obtain the cancellation and annulment of a release under seal, by him executed on the 7th day of October, 1890, which discharged and released the defendant from all actions causes of action, damages, etc., which had accrued to complainant by reason of the alleged negligence of the defendant, whereby the plaintiff, who was traveling in one of the defendant's freight cars, in charge of horses, was injured by the concussion of the cars in making up the train in Detroit. He claims to have suffered, in addition to a fracture of his arm and a slight injury to his head, a severe and permanent injury to his right shoulder; and the release which he seeks to have canceled, it is the claim of the bill covers, and was intended to cover, only the injury to his arm and head; and he now seeks compensation for the more serious and the permanent injury to his shoulder. For this, in March 1894, he sued the defendant in the circuit court for the county of Wayne. On the 27th of that month the defendant filed its petition for the removal of the cause to this court, alleging therein that the plaintiff was an alien and a subject of the queen of Great Britain and Ireland, and that the defendant was and is a corporation organized and existing under the laws of the state of Missouri, and a citizen and resident of said state. An order of removal was made upon this petition, and the transcript from the state court was seasonably filed in this court. The cause thus removed was by stipulation between the attorneys for the respective parties, discontinued on the 27th day of June, 1894, and on the 19th of September, 1894, the plaintiff, describing himself as 'a resident and citizen of the province of Ontario, in the dominion of Canada' (being in terms the same averment of his citizenship as was made in the cause removed and subsequently discontinued), filed his declaration in this court, as commencement of suit, describing the defendant as a corporation organized and doing business under the laws of the state of Michigan. The form of action was case for the alleged negligence of the defendant, whereby the plaintiff suffered the injuries mentioned above, while being transported over the defendant's road; and the declaration also contains a count based upon the alleged failure of the defendant to provide a competent surgeon and physician to treat and care for the injuries of the plaintiff, by reason of which failure and the alleged want of care and skill of the physician employed by the defendant, to whose care the plaintiff submitted himself, the plaintiff did not receive proper treatment, and his injuries were greatly aggravated, and were rendered permanent and incurable, and have disabled the plaintiff, and rendered him wholly unfit to labor or earn his living. The ad damnum of the declaration is $20,000. The defendant pleaded the general issue. The cause came on for trial at the November term, 1894, of this court, and after the close of the evidence the defendant moved the court for an instruction to the jury to find a verdict for the defendant on the ground that the cause of action was barred by the release executed by the plaintiff. The following is a copy of the release in evidence by the defendant:

'Exhibit A. Form 2,105.

'Whereas, on the 3rd 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 which time said car wherein I was was run against & upon by a locomotive, giving car heavy shock, whereby I was injured,-- on the 3d 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 employes, 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 6th day of October, A.D. 1890.

his 'Ephraim X Lumley. (Seal.) mark

'Signed, sealed, and delivered in presence of H. W. Morehouse.

'Witnessed by Jno. Kniffen.' Upon the intimation of the court at the close of the argument that this release, being under seal, could not be avoided at law, under the testimony, but only upon a bill in equity, the court, upon the application of the plaintiff, permitted him to withdraw a juror, on condition that he should file a bill in equity in this court within 30 days for the cancellation of said release. In compliance with this condition, the bill of complaint in this cause was filed July 7, 1895. This bill describes the complainant as a 'resident of the province of Ontario, dominion of Canada, and a citizen of the dominion of Canada. ' It sets forth substantially as stated in the declaration the particulars of the accident of the 3d of October, 1890, in the yards of defendant at Detroit; that, except the injuries to his head and the fracture of his right arm, plaintiff was ignorant of the other injuries by him received, and for which he sought compensation in the cause at law; that plaintiff continued his journey to his destination, Danville, Ill., where he arrived October 5, 1890, where his arm was treated by the chief surgeon of the defendant; that on the morning of October 6, 1890, he went to said surgeon's office, where he met one Austin, an agent of defendant, who expressed his desire to settle with plaintiff for the fracture of his arm and the contusion of his head; that said surgeon then and there stated that the contusion was trivial, and that the fracture would be entirely healed in about six weeks, and that plaintiff would be entirely well, and able to resume his regular employment, in not to exceed eight weeks; that plaintiff's wages at that time were $8 per week, and Austin offered to pay plaintiff for eight weeks' time at that rate, and a small sum for such additional medical attendance as he might require,-- in all $75. This proposition complainant accepted, as his bill avers, upon those conditions, viz. 'that he should be well in not to exceed eight weeks, and that he would accept the said seventy-five dollars in satisfaction of said injuries so talked about,' and executed the release, receiving the $75 therefor. The bill avers that the claim agent, Austin, 'pretended to read the paper to which your orator set his mark, but that he read the same with great rapidity. Whether he read all of it, your orator does not know; but your orator charges that he did not, and that the only portion which was read so that complainant could understand it was that relating to the receipt of $75, and the expression 'fracture of the arm.' ' The further charge of the bill is that, 'in so far as the paper recites that there was a controversy as to the liability of the company, it is false and fraudulent, and was imposed upon your orator fraudulently, and without proper reading on the part of said claim agent, and that your orator never intended to execute any such paper, and no such agreement was ever made between the parties'; that it was executed wholly on the absolute and unqualified statements of defendant's chief surgeon 'that complainant would be entirely well and able to resume his employment in not to exceed eight weeks, and the implicit confidence in said statements by said plaintiff, who believed the same to be true, and he would not have set his mark to said paper except for such representations and statements, nor would he have accepted the $75 as satisfaction for the forearm and the wounds on his head'; that, before this settlement, complainant's right shoulder and right part of his body adjacent began to pain him to such an extent as to alarm him, but the surgeon assured him that such pain was merely sympathetic, and arose from the fracture of the arm. Plaintiff returned to his home on the 7th of October, 1890, where his shoulder and the muscles and parts adjacent again distressed him greatly, so that he could not remove his coat alone, and the same was necessarily cut off his person. He denies that any examination was made by the surgeon at Danville of any part of his body, except the forehead and right arm, and asserts that, from the time of complainant's arrival home, his shoulder grew rapidly worse, but, relying upon the assurance given him by the...