Swan v. Great Northern Railway Co.

• Decision Date: 10 June 1918
• Court: North Dakota Supreme Court

168 N.W. 657

40 N.D. 258

MIKE SWAN, Respondent, v. GREAT NORTHERN RAILWAY COMPANY, a Corporation, Appellant

Supreme Court of North Dakota

June 10, 1918

Rehearing denied July 30, 1918.

From a judgment of the District Court of Eddy County, Buttz, J defendant appeals.

Reversed.

Reversed and remanded.

Murphy & Toner, for appellant.

This lawsuit is governed by the Federal Employers' Liability Act; the case was not so pleaded or proved, and on defendant's motion should have been dismissed.

The railway line of defendant on which plaintiff was injured was a through line; the company was engaged in interstate commerce; plaintiff was an employee of defendant, and as such, under the existing facts, was employed in interstate commerce. Hein v. G. N. Ry. Co., 34 N.D. 440-446; Pederson v. Ry. Co., 229 U.S. 146; Ry. Co. v Williams (Ky.) 103 S.W. 920.

Upon defendant's motion a verdict of dismissal should have been directed. Walker v. Ry. Co., 241 F. 395; Ry Co. v. Wright, 239 U.S. 548; Ry. Co. v. Hayes, 234 U.S. 86; Ry. Co. v. Slavin, 236 U.S. 454.

The fact that the Federal act was not pleaded is immaterial; either party had the right to take advantage of it. Hein v. G. N. Ry. Co., 34 N.D. 440; Ry. Co. v. Lindsay, 233 U.S. 42; Ry. Co. v. Duvall, 225 U.S. 477; Lamphere v. Ry. Co., 47 L.R.A. (N.S.) 75; Ry. Co. v. Seale, 229 U.S. 156.

The right to demand and obtain sufficient security for costs exists even in the absence of statutory provision. 11 Cyc. 171, 174, 190.

In this case an original claim for damages for personal injuries was made. The claim was settled between the parties by a compromise amount; the defendant signed the release of claim and accepted and retained the amount of money paid to him under such compromise settlement agreement and release; he has never returned or offered to return such money, or any part of it. The plaintiff cannot maintain this action. Comp. Laws 1913, § 5936; Ry. Co. v. McElroy, 100 Ky. 153, 37 S.W. 844; Hill v. N. P. Ry. 113 F. 914; Price v. Comers, 146 F. 503; Heck v. Ry. Co., 147 F. 775.

There is no claim or evidence of fraud or misrepresentation at the time or as a part of the compromise agreement, therefore, the release was not void, but merely voidable, and cannot be revoked in an action at law. Smith v. Ry. Co. (Miss.) 73 So. 801; Shampeau v. Lumber Co., 42 F. 760; Perry v. M. O'Neill & Co., 78 Ohio St. 200, 85 N.E. 41; Moline v. Bostwick, 109 N.W. 925; Insurance Co. v. Webb, 157 F. 155; Kosztelnik v. Co., 91 F. 606; Connor v. Chemical Works, 50 N.J.L. 257, 12 A. 713; Hill v. N. P. Ry. Co., 104 F. 754, 113 F. 914; Vandervelden v. Ry. Co., 61 F. 54; Ry. Co. v. Welch, 52 Ill. 183; McMahon v. Plummer, 50 N.W. 480; Ry. Co. v. Lewis, 109 Ill. 120; Hartley v. Ry. Co., 214 Ill. 78, 73 N.E. 398; Ry. Co. v. O'Rourke, 172 Ill. 177, 50 N.E. 242; Homuth v. Ry. Co., 129 Mo. 629, 31 S.W. 903; Hancock v. Blackwell, 139 Mo. 440, 41 S.W. 205.

Plaintiff at most has only pleaded a breach of contract. A promise made by one party to another, performance of which can be enforced, or damages recovered in a proper action for its breach, does not contain within it any element of fraud. This is true whether the promise was made with or without intention to perform it. 12 Cyc. 13; Comp. Laws 1913, §§ 5846, 5849; Tamlyn v. Peterson, 15 N.D. 488.

The court erred in its entire failure to instruct the jury on the doctrine of assumption of risk. Ry. Co. v. Deatley, 241 U.S. 310.

N. J. Bothne, for respondent.

This is the first time defendant has ever mentioned the Federal act or its application to this case.

"It is elementary that a party cannot adopt one position in the trial court and thereafter urge a different one here for reversal. This court must rule upon the same issues as did the trial court, and not upon new ones." Lynn v. Seby, 29 N.D. 420.

"In reviewing a ruling on a motion for nonsuit or a directed verdict, the appellate court will consider only the grounds urged in the trial court, and appellant will not be permitted to change them or to add others in the appellate court." Erickson v. Wiper, 33 N.D. 193; McLain v. Nurnberg, 16 N.D. 144; Poirier Co. v. Kitts, 18 N.D. 556; Petrie v. Wyman, 35 N.D. 126.

By failing to object to the complaint; by pleading contributory negligence, which is no defense under the Federal act; by failing to object to the evidence and instructions of the court on that ground; by failing to call the court's attention to the matter, and by trying the case on the theory that the state statute was applicable,--the defendant has waived its right under the Federal statute, if any existed, and cannot now raise the point here for the first time on appeal. Leora v. Ry. Co., 146 N.W. 520.

"The rule seems to be well established and settled that a defendant, as in the instant case, will not be permitted for the first time in an appellate court to invoke the protection of a Federal statute." Hanson v. Ry. Co., 146 N.W. 524; Chicago, etc., Ry. Co. v. McBee, 145 P. 331; Chicago, etc., Ry. Co. v. Holliday, 145 P. 786; Louisville & N. R. Co. v. Woodford, 234 U.S. 46; Ry. Co. v. Rogers, 150 S.W. 281; Freeman v. Powell, 144 S.W. 1033; Pelton v. Ry. Co., 150 N.W. 236; Bradbury v. Ry. Co., 128 N.W. 1; Midland, etc., Co. v. LeMoyne, 148 S.W. 654; Ry. Co. v. Neaves, 127 S.W. 1090.

"Where the declaration did not aver that the defendant was doing interstate business, nor allege facts to show that the Federal act controlled the case, is to be decided by the state law." Hemick v. Ry. Co., 184 Ill.App. 275; Bradbury v. Ry. Co., 128 N.W. 1; Hein v. G. N. Ry. Co., 34 N.D. 440.

The Federal statute does not attempt to define negligence, and hence the question of what constitutes negligence will be determined by the state law. Ry. Co. v. Swamm, 169 S.W. 886; Helm v. Ry. Co., 160 S.W. 945.

The state law also controls as to the rules of evidence and procedure. Ry. Co. v. Leslie, 167 S.W. 83; Ry. Co. v. Holloway, 173 S.W. 343.

Under our law contributory negligence is no bar to a recovery of damages for injuries by an employee, and can only be considered by the jury in apportioning the damages. Comp. Laws 1913, § 4805; Peterson v. Ry. Co. (N.D.) 164 N.W. 42.

The trial court fully instructed the jury, under this state statute, and it was not necessary to further instruct. Cole v. Atchison, 139 P. 1177; Graber v. Ry. Co., 150 N.W. 489; Ry. Co. v. Strange, 161 S.W. 239.

Assumption of risk is a matter of defense which must be pleaded in order to entitle the defendant to an instruction on that point. Carr & Erickson v. Soo Ry. Co., 16 N.D. 217.

"A party cannot in a court of error avail himself of an omission of the trial court to instruct the jury upon a point in respect to which he asked no instruction." Frye v. Ferguson, 6 S.D. 392.

"The employee does not assume the risk of injury caused by the master's negligence, where he had no knowledge of the existing danger." Meehan v. G. N. Ry. Co., 13 N.D. 432.

"It is error to submit to the jury issues on which there is no evidence." Douda v. Ry. Co., 119 N.W. 272; 13 Standard Proc. 792; N.D. Comp. Laws, § 4807; Federal Employers' Liability Act, § 6.

It is not error for the trial court to refuse to dismiss the action for failure of a nonresident to give security for costs, when such motion is made at the opening of the trial and without other notice. Bergh v. Wyman Farm Land Co., 30 N.D. 158.

A release of claim obtained by fraud may be avoided in an action at law, and a suit for damages maintained without first obtaining a decree in equity canceling the release. Clark v. N. P. R. Co., 36 N.D. 503.

Such releases are treated in the law as merely partial payments, and under proper instructions the jury, if it awards a greater amount by its verdict, may deduct or allow for in any other manner, the amount of the release, and render verdict for the net balance they may decide to give plaintiff. Hedlum v. Holy Terror Min. Co., 16 S.D. 261; O'Brien v. Ry. Co., 57 N.W. 425; 35 L.R.A. (N.S.) 660; Girard v. St. Louis Car Wheel Co., 25 L.R.A. 514.

The release here was not only voidable for partial failure of consideration, but was voidable on the ground of actual fraud. Actual fraud, among other things, consists of "a promise made without any intention of performing it, or any other act fitted to deceive." Comp. Laws 1913, § 5849; Tamlyn v. Peterson, 15 N.D. 488; Pollard v. McKenney, 96 N.W. 679; Cerny v. Pacton Co., 110 N.W. 882; Lawrence v. Gayetty, 78 Cal. 126; Langley v. Rodriquez, 122 Cal. 580.

In such cases as this one, misrepresentations on the part of the physician as to the nature and extent of the injuries will avoid a release. The concealment of a material fact is as fraudulent as a misrepresentation. Clark v. N. P. R. Co., 36 N.D. 503; Viallet v. Co., 5 L.R.A. (N.S.) 663, and note; Haigh v. Co., 50 L.R.A. (N.S.) 1091 and note; Jacobsen v. Ry. Co., 156 N.W. 251.

Where a person who is illiterate and does not understand the language in which a release is written, and did not know what he was signing, it is the duty of the person presenting such release or instrument for signature to fully explain its true contents and the meaning of the same, and a failure to do so is evidence of fraud. Christianson v. Ry. Co., 69 N.W. 640; Peterson v. Butler Bros. 144 N.W. 407; Lusted v. Ry. Co., 36 N.W. 857; Miller v. Ry. Co., 143 P. 981; Bearden v. Ry. Co., 103 Ark. 341; Pierson v. Milling Co., 139 P. 394; Stanwood Co. v. Bain, 157 Ky. 623; Ry. Co. v. Nichols, 136 P. 159; Woods v. Wickstrom, 135 P. 192.

Although the amount paid for such a release may be very unfair and unconscionable, this fact alone is not sufficient to avoid it; but it is an evidence of fraud and is a proper question for the jury, and their finding of a general verdict for plain...