Ross v. Service Lines, 625-D.

• Decision Date: 13 March 1940
• Docket Number: No. 625-D.,625-D.
• Citation: 31 F. Supp. 871
• Parties: ROSS v. SERVICE LINES, Inc.
• Court: U.S. District Court — Eastern District of Illinois

31 F. Supp. 871

ROSS v. SERVICE LINES, Inc.

No. 625-D.

District Court, E. D. Illinois.

March 13, 1940.

Herbert H. Patterson, of Chicago, Ill., and Jones, Grant & Sebat, of Danville, Ill., for plaintiff.

W. M. Acton, of Danville, Ill., for defendant.

LINDLEY, District Judge.

On October 2, 1939, this court entered an order granting a separate trial upon the issues raised by the first defense, namely, that of release of the damages claimed, and directed the parties to file their briefs upon the question of whether the trial upon the issue thus framed, should be before the court or before a jury. After the expiration of four and a half months, plaintiff has filed a brief and moves to vacate the order of October 2.

Federal Rules of Civil Procedure, rule 42, 28 U.S.C.A. following section 723c, provides that the court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any claim or issue. Inasmuch as in reply to the defense of release of damages incurred, plaintiff confesses the release but attempts to avoid it and the parties are at issue as to whether such release was fraudulently obtained, in view of the rule, the court deems it best that the issue thus framed be tried and disposed of before the trial upon the merits, if the latter should become necessary. The case is clearly within the language of Union Pacific R. Co. v. Syas, 8 Cir., 246 F. 561, 567, wherein the court said: "In the case before us, and all others like it, where it appears that no damages can be recovered until the release is out of the way, orderly procedure and a due regard for the rights of the parties demands that the equitable issues should be first tried by the court sitting as a court of equity. It is true the chancellor may take the advice of a jury, but in such cases the issues to be passed upon by the jury should be carefully framed, and the jury should not be the one which also tries the action at law, as the desire of the jury to render a verdict in the law action in favor of plaintiff or defendant may so cloud their judgment as to render their advice unsafe to follow. We are of the opinion that the failure of the trial court to try the equitable issues raised by the pleadings as a court of equity prior to the trial of the action for damages, as requested by counsel for the defendant, was prejudicial error." Of like purport are Cavender v. Virginia Bridge & Iron Co., D.C., 257 F. 877; Hoad v. New York Central R. Co., D.C., 3 F. Supp. 1020. If such procedure was proper before the adoption of the rules, as the first two cases held, it is even more so in view of the Supreme Court's provision for separate trials to avoid prejudice or to promote convenience.

Plaintiff contends also that the trial upon the issue of validity of the release must be before a jury. The release under seal recites the receipt of consideration in settlement of damages incurred in the accident mentioned in the complaint. Plaintiff now asserts that at the time he signed the release he did not read it and that it was represented to him, and he believed that he was, releasing only the claim for damages to his wife's truck. These acts, he says, constitute fraud invalidating the transaction. Defendant admits that plaintiff did not read the release but avers that it was read to him and that he understood it. So the issue between the parties is whether upon these averments, an equitable question arises or one at law, justifying a demand for jury trial.

In Papke v. Hammond, 192 Ill. 631, 61 N.E. 910, 912, the court distinguished between two kinds of fraud, first that going to the execution of the instrument, and, second, that which consists of fraudulent representations as to the nature or value of the consideration, and said: "It seems to be well settled that when the signature to an instrument under seal is procured by false representations, the nature of the instrument being fully understood by the party signing it, the effect of such instrument can only be avoided by a separate...