Southern Ry. Co. v. Stewart

• Decision Date: 07 December 1940
• Docket Number: No. 11609.,11609.
• Citation: 115 F.2d 317
• Parties: SOUTHERN RY. CO. v. STEWART.
• Court: U.S. Court of Appeals — Eighth Circuit

115 F.2d 317 (1940)

SOUTHERN RY. CO. v. STEWART.

No. 11609.

Circuit Court of Appeals, Eighth Circuit.

November 1, 1940.

Rehearing Granted December 7, 1940.

Walter N. Davis and Arnot L. Sheppard, both of St. Louis, Mo. (Wilder Lucas, of St. Louis, Mo., on the brief), for appellant.

Charles M. Hay, of St. Louis, Mo. (Charles P. Noell, of St. Louis, Mo., on the brief), for appellee.

Before SANBORN, THOMAS, and VAN VALKENBURGH, Circuit Judges.

VAN VALKENBURGH, Circuit Judge.

John R. Stewart, the deceased, was a switchman in the employ of appellant. February 12, 1937, he was engaged at East St. Louis, Illinois, in coupling up certain cars on track No. 12 in appellant's yards. Several of said cars contained goods which were en route in interstate commerce from various states of the United States to various other states of the United States. While engaged in such duties, Stewart's arm was crushed by impact between the couplers of two cars of the train. It was charged by appellee that he died on February 14, 1937 as a result of such injury.

The suit is based upon an alleged violation of the Safety Appliance Act, Act of March 2, 1893, c. 196, Sec. 2, 27 Stat. 531, 45 U.S.C.A. § 2, as amended by Act of March 2, 1903, 32 Stat. 943, c. 976, 45 U.S. C.A. §§ 8-10, and is brought under the Federal Employers' Liability Act, 45 U.S. C.A. § 51.

Mary Stewart, plaintiff below, and the original appellee in this court, was the wife of deceased, and brought this suit April 20, 1937, to recover damages for the alleged wrongful death of the deceased as an employee of the appellant railroad, and also for his conscious pain and suffering proximately caused by the alleged violation by said appellant of the provisions of the Federal Safety Appliance Act, in furnishing on its line any car "used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars".

After the filing of the suit Mr. H. B. Haun, assistant general claim agent of the appellant Southern Railway Company, made a number of attempts, by personal contact and through others, at his request, to enter into negotiations for the settlement of this cause; and, during this period, amounts in settlement from $1,000 to $5,000 were tentatively offered to Mrs. Stewart, but not accepted. Finally, according to the testimony of Haun, he learned that one Henry Hamm, the husband of a daughter of plaintiff, was, by his opposition, blocking the settlement. Hamm at that time was a switchman in the employ of the Terminal Railroad Association, which is owned by sixteen proprietary lines, of which appellant herein is one. The Terminal Association therefore readily accedes to all proper requests of the individual carriers. Mr. Haun testifies that when he learned of Mr. Hamm's attitude he called on Mr. J. L. Howell (now deceased), attorney for the Terminal Association, with offices at the Union Station in St. Louis, Missouri. To Mr. Howell, Haun testifies he said: "Mr. Howell, we oftentimes have cases where we have our own employees who are blocking these settlements. Here we have a case where we know that is what has happened, and I wish you would talk to Mr. Hamm about it". Mr. Howell then called up the east side office of the Southern Railway, where Hamm was employed, and requested that "they have Bill Hamm come in and see me at his first opportunity". When Hamm came in Howell referred to the death of the deceased, and the claim of the widow and said:

"`They are offering to pay her five thousand dollars clear and she is willing to take it, but they say that you are standing in the way.'

"`Yes', he said, `I am, because I don't want that woman gypped out of what money she gets.'

"I said, `How about the five thousand dollars?'

"He said, `That is the reason; that is all right to settle for that, if she gets the five thousand dollars.'

"I said, `What would it take to convince you that she would get the five thousand dollars?'

"`Well', he said, `I want it put in writing.'

"`Well, now', I said, `they can't do that. Railroads don't do that, put things in writing like that. It is not right. If the Southern tells you that they will pay your mother-in-law five thousand dollars clear, you can depend on what they tell you.'

"Well, he didn't know whether he could or not. I said, `You know Bruce Campbell, don't you?'

"He said, `Yes, I do'.

"I said, `If Bruce Campbell tells you that they will see that your mother-in-law gets five thousand dollars clear, and they stand all other expense, would you not believe him?'

"`Well', he said, `I would rather it would be put in writing.'

"I said, `Would you believe me if I would tell you right now?'

"`Yes, if you tell me that I will believe it.'

"I said, `Mr. Campbell will tell you the same thing'.

"He said, `If he will do that, that is all right.'

* * * * * *

"I turned around to my desk and called Bruce Campbell. I talked with Bruce Campbell and stated, in Mr. Hamm's presence, re-stated what I had already stated.

"Mr. Campbell says, `That is correct.' He said, `Is Hamm there?'

"I said, `Hamm is right here now, listening, and Hamm says it is all right, that he thinks five thousand dollars is a reasonable settlement, if she gets that much money, and I have myself guaranteed him that she will get that, if you say so.'

"He says, `Why not have him come right up here?'

"I said, `That would be fine.'

"I said to Hamm, `Hamm, can you go right up to Mr. Campbell's office?'

"He said, `Sure'.

"I said, `Hop on a car.'

"`Go on, Hamm, and whatever Bruce Campbell tells you I will guarantee', and he went out of the office. He said good-bye, shook hands, and away he went. That was the whole conversation.

"At that time I was under the impression that it was an accident, and they were settling it up. I knew nothing more about it, or heard nothing more about it, until Mr. Noell called me up on the telephone and had a conversation about the suit. I said I didn't know there was a suit. I think the next morning I saw in the paper that there had been a suit filed".

On November 30, 1937, there was a meeting in the office of Kramer, Campbell, Costello & Wiechert, attorneys for appellant, for the purpose of effecting a settlement with Mrs. Stewart on account of the death of her husband. Those present were Mr. Wiechert, attorney for appellant, Mary Stewart, widow of deceased, her daughter, Mrs. Henry Hamm, and her husband, Henry Hamm. It appears in the testimony that Mrs. Stewart had not previously agreed to this settlement, but did so finally, whereupon Wiechert, Mrs. Stewart, and Mr. and Mrs. Hamm repaired to the Probate Court of St. Clair County, Illinois, at Belleville, in which court the administration of the estate of John R. Stewart, deceased, was pending. The petition of Mrs. Stewart for leave to settle the case against appellant and relieve the latter from further liability in the premises was filed. The amount of the settlement consisted of $5,150, which included an attorney's fee of $150, which was paid to a Mr. Felsen, an attorney called in by Mr. Wiechert to represent Mrs. Stewart, instead of Mr. Noell, her attorney who filed the suit. The Probate Court, on that day, made its order approving said settlement. At a later date Mrs. Stewart filed in the said Probate Court a petition to set aside the previous order of that court authorizing and approving said settlement of November 30, 1937, alleging that the papers signed by her, praying for authority to settle, were signed as a result of fraud and duress on the part of appellant, and its agents and attorneys. After hearing in the Probate Court, her motion to set aside the approval of said settlement was denied. Subsequently, at the trial of this cause in the District Court, Mrs. Stewart testified that she was induced by fraud and duress to file the petition and procure the order of compromise in the Probate Court because of her fear, induced, in part at least, by a statement of Mr. Wiechert which she took to mean that if she declined to do so, her son-in-law Hamm might lose his position with the Terminal Railroad Association, in which case it would be difficult, if not impossible, to secure other employment, and his wife, Mrs. Stewart's daughter, and their children, would be reduced to privation and suffering thereby. The testimony of her daughter, Mrs. Hamm, corroborated that of Mrs. Stewart. At this point the offer of appellant to introduce evidence of the alleged compromise and that its setting aside was rejected by the Probate Court was denied upon objection by counsel for appellee.

The case was duly tried in the district court, notwithstanding said purported settlement, and the jury returned a verdict in favor of appellee in the sum of $17,500. Hamm did not testify at the trial. From the judgment entered upon that finding this appeal is taken. After the submission thereof, the death of Mary Stewart, administratrix, was duly suggested, and, pursuant to stipulation of counsel, Clarence A. Stewart, as administrator of the estate of John R. Stewart, deceased, was substituted as appellee.

1. The first point urged by appellant in its brief and argument is that the court erred in denying appellant's motion for a directed verdict be...