Thompson v. Camp

• Decision Date: 11 August 1947
• Docket Number: No. 10362.,10362.
• Citation: Thompson v. Camp, 163 F.2d 396 (6th Cir. 1947)
• Parties: THOMPSON v. CAMP.
• Court: U.S. Court of Appeals — Sixth Circuit

163 F.2d 396 (1947)

THOMPSON v. CAMP.

No. 10362.

Circuit Court of Appeals, Sixth Circuit.

August 11, 1947.

COPYRIGHT MATERIAL OMITTED

Cooper Turner, of Memphis, Tenn. (Canada, Russell & Turner, of Memphis, Tenn., on the brief), for appellant.

Walter P. Armstrong, of Memphis, Tenn. (W. E. Hendrix, R. G. Draper, and Walter P. Armstrong, all of Memphis, Tenn., on the brief), for appellee.

Before HICKS, ALLEN, and MILLER, Circuit Judges.

MILLER, Circuit Judge.

This is an appeal from a judgment of the District Court awarding the appellee, Louise Camp, Administratrix of the estate of her husband, Irving Camp, deceased, the sum of $35,000 as damages for injuries received by the decedent while working as a switchman for the St. Louis-San Francisco Railway Company (hereinafter referred to as Frisco). The action was brought under the provisions of the Federal Employer's Liability Act, Title 45 U.S.C.A. §§ 51-60. The applicability of the Act is not questioned.

On April 26, 1945, Camp was engaged in switching operations on tracks used by the Frisco in and around what is known as K. C. Junction in Memphis, Tennessee. At the time of the accident, about 11:55 p. m., he was engaged as what is known as a pin puller, with duties consisting generally of lifting coupling pins so as to uncouple cars which were going to be released. Immediately prior to the accident the engine was coupled to seven cars which were to be delivered to the Southern Railway on an interchange track. Before this could be done it was necessary to remove four cars in the Southern track which were to be delivered to the Frisco. Accordingly, the seven cars were shoved into the Southern track and coupled onto the four cars standing there. The foreman, Van Hooser, gave instructions that the cut be pulled out of the Southern track and that the four cars for delivery to the Frisco be kicked into the Southern extension of the Frisco lead track. A cut of cars is kicked by having the engine shove the cars until the desired speed is reached, at which time the engine slows down with the result that the cars which are to be kicked, being either already uncoupled or being then uncoupled, roll on in the direction in which they are being kicked. The cars in such a case are uncoupled by the pin puller. The evidence is conflicting as to whether Camp was on the end of the seventh car from the engine, which was the last car in the cut that the engine would hold on to and would not kick, or whether he was riding on the adjoining end of the eighth car from the engine, this being the end of the cut of four cars which was to be detached. The engine shoved the cars toward the south, slowed down and brought it and the seven cars attached to it to a stop permitting the four cars which were being kicked to roll on free. Van Hooser then gave the engineer a signal to proceed back through the crossover where it would be in a position to put these seven cars into the Southern interchange track. When the engine and cars came to a stop, Camp was not on them. Hightower, an engineer on another engine in the yard, testified that between 11:50 p. m. and 12 o'clock he saw a lantern overturned on the ground, stopped his engine, got off and investigated. He found Camp sitting in a crouched position holding his head in his hands with his face dirty. He asked Camp what had happened and Camp told him that "he got off the cut, stepped in a hole, and slipped and fell." Camp's watch had stopped at 11:53.

Camp was treated at the hospital by Dr. M. B. Hendrix, a surgeon employed by the Frisco Employees Hospital Association, a general welfare corporation of Missouri, to which Camp belonged and to which he paid dues for the privilege of receiving hospital and medical benefits. The Association was governed by sixteen trustees eleven of whom were employees of the railroad chosen by the employees as their representatives. Dr. Hendrix's salary was paid by the Association, not by the appellant, although in some matters, such as examining prospective employees, he was employed specially by the Frisco and paid by it. Dr. Hendrix advised Mrs. Camp that Camp had a brain concussion and a blood clot, together with severe lacerations. He was unconscious about three days and nights. After regaining consciousness, he complained of severe headaches. Dr. Hendrix made two spinal punctures which gave some relief, but did not stop the headaches. He was in the hospital from April 26th until May 9th, a period of 13 days, when he was released by Dr. Hendrix and permitted to go home. During his stay at home he visited Dr. Hendrix at his office on three occasions, the last one being on Saturday, June 2, 1945 at about Noon. Mrs. Camp was with him on this last visit and testified that Camp told Dr. Hendrix that his neck still hurt at times and he sometimes had dizzy spells, that Dr. Hendrix took his knee reflexes, looked at his eyes and "told him he was O.K., he could go back to work." Dr. Hendrix testified that Camp stated, in answer to his questions, that he was all right and wanted to return to work. Camp got in touch with Henry Westbrooke, local claim agent for the Frisco, during the evening. Westbrooke came to Camp's home and then took Mr. and Mrs. Camp to his office in the Grand Central Building in Memphis about 9:00 p.m. for the purpose of settling the claim before Camp returned to work on Monday. On two previous occasions Westbrooke had asked Camp for a statement about the accident, which Camp had declined to give at that time. At the office that evening Westbrooke took Camp's statement on the typewriter. There was no discussion between them about Camp's condition of health, what had been his trouble or when he would be well. Westbrooke asked Camp how much it would take to settle the case, and when Camp stated that he thought he should have $800 or $900 for the time he had lost and for the injuries, Westbrooke stated that there was no liability but that he would settle with Camp for $500, which he thought was all he should pay considering the time he had lost and that the injuries were no more serious than they were. This was a little more than, or approximately the same amount, Camp would have earned if he had worked overtime during the time he was laid off. After giving it consideration, Camp accepted the proposition and signed a release prepared at that time by Westbrooke. The release recited Camp's claim for damages, the denial of liability on the part of the Frisco, and stated that Camp released the appellant "from any and all liability for all claims for all injuries, including those that may hereafter develop as well as those now apparent, and also do release and discharge them of all suits, actions, causes of action, and claims for injuries and damages which I have or might have arising out of the accident referred to, both to my person and property, as well as from all claims or demands of any kind whatsoever, and do hereby acknowledge full satisfaction of all such liability and causes of action." Westbrooke assisted them in cashing the check that evening. Camp returned to work Monday June 4th. He worked intermittently until June 17, 1945, when about 2:30 a.m. he collapsed and was taken to the hospital in an unconscious condition, where he died within a few hours. At the time of his death Camp was thirty-three, and had two sons, thirteen and ten years of age. A third son was born shortly after his death.

In her Bill of Complaint the appellee charged that Camp's injuries and death were the proximate result of appellant's negligence in that it failed to furnish Camp a reasonably safe place in which to work, and in particular that it was carrying on switching operations over tracks which had been permitted to become dangerous and unsafe by reason of large holes and excavations in the ground which made it necessary for Camp in the performance of his duties to alight on uneven ground, and that it had failed to have the place where Camp was required to work properly lighted, so as to disclose the dangers existing; that the release was secured by reason of appellant misrepresenting to Camp that he had fully recovered from the accident, and that in any event the settlement was also made as the result of a mutual mistake of fact. The complaint prayed that the release be set aside and that the Adminstratrix recover damages in the sum of $100,000. The appellant denied the alleged negligence on its part and pleaded that Camp was guilty of contributory negligence, and that any alleged cause of action was barred by the release of June 2nd which was not the result of either fraud, misrepresentation or mutual mistake of fact. The District Judge empaneled an advisory jury, which found (1) that the release was not executed as a result of fraud on the part of the appellant, and (2) that the release was executed as the result of a mutual mistake of fact on the part of the appellant and the deceased, and on the questions of liability and damages found for the appellee in the amount of $35,000. The District Judge approved the verdict of the jury in all respects and rendered the judgment which is herein appealed from.

Appellant contends that his motions for a directed verdict at the close of the plaintiff's case and at the close of all the evidence should have been sustained, in that the evidence failed to show any negligence on the part of the Frisco which was the proximate cause of Camp's death, and in any event, the action was barred by the release which Camp executed on June 2nd; and that the evidence was insufficient to sustain the finding that the release was invalid as having been executed under a mutual mistake of fact.

We first consider the validity of the release. Federal law, rather than the law of Tennessee, is controlling. Ricketts v. Pennsylvania R. Co., 2 Cir., 153 F.2d 757, 164 A.L.R. 387, Garrett v. Moore-McCormack Co., Inc., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239. Appellant concedes that a release...