Mooney v. Central Motor Lines

• Court: U.S. Court of Appeals — Sixth Circuit
• Writing for the Court: MARTIN, McALLISTER, and MILLER, Circuit
• Citation: Mooney v. Central Motor Lines, 222 F.2d 569 (6th Cir. 1955)
• Decision Date: 26 April 1955
• Docket Number: No. 12233.,12233.
• Parties: Leo T. MOONEY, Plaintiff-Appellant, v. CENTRAL MOTOR LINES, Inc., Defendant-Appellee.

222 F.2d 569 (1955)

Leo T. MOONEY, Plaintiff-Appellant, v. CENTRAL MOTOR LINES, Inc., Defendant-Appellee.

No. 12233.

United States Court of Appeals Sixth Circuit.

April 26, 1955.

C. Richard Grieser, Columbus, Ohio, argued, Alex S. Dombey, Columbus, Ohio, William A. Finn, Toledo, Ohio, on the brief for appellants.

Ernest C. Schatz, Toledo, Ohio, argued, Doyle, Lewis & Warner, Toledo, Ohio, on the brief for appellee.

Before MARTIN, McALLISTER, and MILLER, Circuit Judges.

McALLISTER, Circuit Judge.

The district court dismissed appellant's complaint, in a personal injury case, with prejudice. From a denial of a petition to set aside such order of dismissal, appellant seeks review.

Appellant's claim for damages arose out of a collision at a railroad crossing between appellee's truck and a Pennsylvania Railroad train on which appellant was engineer. On the day following the collision, appellant went to the office of the claim agent of the railroad and made a statement of the accident. Subsequently, the claim agent, in an interview with appellant, in the presence of John Cox, Chairman of the Brotherhood of Locomotive Engineers for appellant's division, offered to get an attorney for him and to pay all costs and fees for appellant if he would sue the owner of the truck; and appellant agreed to accept this proposal. An attorney was secured for him, who, apparently upon information supplied by the railroad, filed suit for appellant against appellee owner of the truck in the state court in Chicago, Illinois. In an affidavit afterward filed for the purpose of setting aside the dismissal of his complaint by the district court, appellant stated that a few days after he had accepted the offer of the railroad company to secure a lawyer and start suit for him, he called Mr. Cox, the Brotherhood Chairman, and told him he was "not ready to go along with the Pennsylvania and that I wanted to get more information." A little more than a month after appellant had authorized the railroad claim agent to secure an attorney for him and commence suit, he called upon the claim agent and received a check for $300 from the railroad as an advance payment on account of his injuries, and, at that time, was told that the lawsuit had been started in his behalf. He declares that he then informed the claim agent that he was not ready to go along with the suit and would prefer settlement with the railroad first; and he states that the claim agent told him that the suit "would be `shelved' and would remain until I was ready to go ahead with it." Seven months after this conversation, he was informed by the Brotherhood Chairman, Mr. Cox, that the suit was coming up in Chicago and that he should see his lawyer there. He did not follow Mr. Cox's advice. He states that this was the first time he knew of the name of the attorney representing him; and he declares that he told Mr. Cox "I had no information and wanted to know where I stood before I went to Chicago." Later, appellant stated that he had heard that the case had been transferred to Toledo. He sets forth in his affidavit that he and his wife had been making plans to visit the state of Washington and proposed leaving on December 16, 1953; that a week before his planned departure, he asked the claim agent of the railroad if he could go, and was told that the agent didn't know of any reason why he could not go. However, on December 15, 1953, appellant received a letter which, he said, contained "what looked like court papers." As anyone could plainly see, they were a notice to him to appear for the taking of deposition, and an order of the court directing him to appear for a physical examination. He thereupon took the papers to the claim agent, who told him it was a subpoena. Apparently this did not impress appellant, who told the agent that he had never filed a suit against the trucking company and "knew nothing about where I stood in the case and that I would not go to Toledo." He then left for a trip of several weeks in the state of Washington.

It appears that appellant was represented, in filing his complaint, by counsel of record, and that while he did not personally select this counsel, he accepted the offer of the railroad company to retain him on his behalf. It further appears that the suit was afterward removed from the state court in Chicago to the District Court for the Northern District of Illinois; and that it was thereafter transferred to the District Court for the Northern District of Ohio, at Toledo, and that appellant knew of these facts. Subsequently, the case was placed upon the district court's regular jury assignment for trial on January 25, 1954, and scheduled for pre-trial conference in open court on December 22, 1953. Notice of the assignment for trial and the pretrial conference was served, by mail upon appellant's attorney of record. On December 11, 1953, appellee's counsel filed a motion under Rule 35(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., for a...