Wabash Ry. Co. v. Lumley

• Decision Date: 03 October 1899
• Docket Number: 669.
• Parties: WABASH RY. CO. v. LUMLEY.
• Court: U.S. Court of Appeals — Sixth Circuit

96 F. 773

WABASH RY. CO. v. LUMLEY.

No. 669.

United States Court of Appeals, Sixth Circuit.

October 3, 1899

J. E Ingersoll and Samuel T. Douglass, for appellant.

E. L Thurston and Harvey D. Goulder, for appellee.

Before TAFT and LURTON, Circuit Judges, and SEVERENS, District Judge.

LURTON Circuit Judge.

This is a bill to reform a release under seal. A demurrer going to the whole bill was sustained, and the bill dismissed. Upon a former appeal to this court that decree was reversed, and the cause remanded, with directions to overrule the demurrer. The opinion of this court is reported in 43 U.S.App. 476, 22 C.C.A. 60, and 76 F. 66, and may be referred to for the general facts of this case. The present appeal is from a final decree, upon pleadings and evidence, reforming the release according to the prayer of the bill. Many reasons have been assigned for reversing the present decree. Many of the points pressed are foreclosed by the former opinion of the court, which we have no disposition to question, even if open for reconsideration. We shall confine ourselves to errors assigned which are not determined in the former appeal.

1. It is said that Lumley should not be granted reformation of the release in question, because of his long delay. Lumley was hurt in October, 1890, and executed the release in question within a few days thereafter. This bill was filed in February, 1895. It is said that this is undue delay, and would result in great injustice if after such a length of time the appellant should now be compelled to defend an action for the jury adjusted by the release in question. Lumley's action at law for damages might have been brought at any time within six years. As matter of fact he brought an action early in 1894, which he dismissed, but renewed in July, 1894, after making a tender of the amount he had received for the release. The latter action came on for trial January, 1895, whereupon the railroad company pleaded this release in bar. The plaintiff thereupon offered evidence tending to show that the settlement evidenced by the release related only to certain specific injuries known and considered at the time, and that he was assured by the company's surgeon, whose opinion as to the character and extent of his injuries was relied upon by both parties, that his shoulder was not involved, save sympathetically. He also offered to show that he was misled by this opinion and that in fact his shoulder had sustained a grave independent injury, from which he lost the use of his arm and that neither party knew or considered this independent injury, or intended the release to cover more than the injuries then known, and the direct consequences thereof. This evidence was rejected upon the ground that the release was under seal, and could not be set aside at law for either fraud or mistake. The court thereupon permitted a mistrial to be entered, and the cause continued, on condition that a bill should be filed in equity to reform the release. It is now said that it would be a great injustice to set aside or reform this release, after a delay of four years, because four witnesses to the circumstances under which the injury was sustained have died, and the company thus deprived of their evidence. These persons were employes of the company at the time of the accident, and engaged at the time in or about the yard of the company where Lumley was hurt. But the very witness who proves that these persons are dead, and were at the time of Lumley's injury...