Wabash Western Ry. v. Brow

• Decision Date: 05 February 1895
• Docket Number: 199.
• Parties: WABASH WESTERN RY. v. BROW.
• Court: U.S. Court of Appeals — Sixth Circuit

65 F. 941

WABASH WESTERN RY. v. BROW.

No. 199.

United States Court of Appeals, Sixth Circuit.

February 5, 1895

In September, 1892, Joseph Brow filed his declaration in the circuit court for Wayne county, Mich., against the Wabash Western Railway, seeking to recover $20,000 damages for a personal injury caused, as he alleged, by defendant's negligence. On the 24th of the same month the sheriff of the county duly served Fred J. Hill, as agent of the defendant with a copy of the declaration, and a notice to appear and plead in 20 days. On October 7th the defendant filed its petition for removal as follows:

'To the Circuit Court for the County of Wayne, aforesaid: The petitioner, the Wabash Western Railway, defendant in the above-entitled cause, shows to the court as follows: (1) That the matter and amount in dispute in the above-entitled cause exceeds, exclusive of interest and cost, the sum or value of two thousand dollars. (2) That the controversy in said suit is between citizens of different states, and that the petitioner, the defendant in the above-entitled suit, is a corporation created and existing under the laws of the state of Missouri, having its principal business office at the city of St. Louis, in said state, and a citizen of the said state of Missouri, and a resident of said state of Missouri, and that the plaintiff, Joseph Brow, was then, and still is, a citizen of the state of Michigan, and a resident of the county of Wayne, in said state. (3) Your petitioner offers herewith good and sufficient security for the entry by it in the circuit court of the United States for the Eastern district of Michigan on the first day of its next session of a copy of the record in said suit, and for paying all costs that may be awarded by said circuit court if said court shall hold that this suit was wrongfully or improperly removed thereto. Your petitioner therefore prays this court to proceed no further in this suit, except to make the order of removal required by law, and to accept said surety and bond and to cause the record herein to be removed into said circuit court of the United States for the Eastern district of Michigan.'

Defendant also filed his bond, conditioned to enter in the United States district court for the Eastern district of Michigan on the first day of its next session a copy of the record, and to pay all costs if the suit should be found to be wrongfully removed. The order of removal was granted the same day. On October 14th the record was filed in the court below, and afterwards, upon the same day, this motion:

'And now comes the Wabash Western Railway, defendant (appearing specially for the purpose of this motion), and moves the court, upon the files and records of the court in this cause, and upon the affidavit of Fred J. Hill, filed and served with this motion, to set aside the service of the declaration and rule to plead in this cause, and to dismiss the same for want of jurisdiction of the person of the defendant in the state court from which this cause was removed and in this court.' The motion was supported by the following affidavit:

'Fred J. Hill, being duly sworn, deposes and says: (1) That this deponent on the 24th day of September, A.D. 1892, when he was served with a copy of the declaration in this cause, was the freight agent of the Wabash Railroad Company, a corporation which owns and operates a railroad from Detroit to the Michigan state line, and was not an agent of the Wabash Western Railway, defendant in this suit. (2) That on the day aforesaid the defendant in this cause, the Wabash Western Railway, did not own, operate, or control any railroad in the state of Michigan, or have any officers or agent of any description therein, and did no business, and had no property and no place of business, in said state; and that on said day deponent was not a ticket or station agent of the said defendant, nor an officer or agent of the defendant of any description.'

No other evidence was offered on the issue raised by the motion. The circuit court denied the motion, and required defendant to plead. To this action the defendant excepted, and went to trial under protest.

Brow, the plaintiff, was injured while repairing a car of defendant in its yards at Delray, near Detroit. He was one of a gang of car repairers in defendant's employ at work on some seven cars under the direction of one Heiler as foreman. The cars were on a track known as the 'repair track.' Blue flag signals were displayed, to show to the yard men that men were at work on and under them. A switch engine crew was directed to push some other cars which had been repaired on to a track parallel with the repair track. Instead of doing so, they pushed the cut of cars on to the repair track, bumped the cars standing there together, and severely injured plaintiff, who was at work under his car putting in a drawbar, by pinning him down between his tool box and one of the axles. Plaintiff's evidence tended to show that the mistake in the turn of the switch occurred through the negligence of one Thompson, a switchman, who was drunk; that a few weeks before, a similar mistake had been made by the same man, in the same drunken condition; that Heiler, plaintiff's foreman, had at that time reported Thompson's drunken negligence to Henderson, the foreman of the yard, and to Ruxton, the general foreman of the car department in the yard; that Henderson, in the absence of Dimick, the general yard master of defendant, had the authority to employ and discharge switchmen under him. Defendant's evidence tended to show that the accident was caused, not by Thompson, but by the foreman of the switch crew, and that Thompson was a sober man, and that he and plaintiff had worked together in the same yard. Defendant further introduced a release, signed by Brow, as follows:

'Whereas on the 9th day of Nov., 1887, I, Joseph Brow, was an employe of the Wabash Western Railway Company, and as such employe was engaged as carpenter in Delray yard; and whereas, I, the said Joseph Brow, received certain injuries as follows: ribs bruised; and whereas, the said railway company denies any and all negligence on the part of itself, its officers, agents, and employes, and denies any and all liability for damages for the injuries so as aforesaid by me received: Now, therefore, for the purpose of fully ending and determining the question of liability on the part of the said railway company for damages for the aforesaid injuries, and for the purpose of avoiding litigation, I, the said Joseph Brow, for and in consideration of the premises and of the sum of one dollar to me in hand paid, the receipt whereof I do hereby acknowledge, and of re-employment by said railway company for such time only as may be satisfactory to the said railway company, do hereby waive and relinquish all claims which I may have against the railway company for damages for the aforesaid injuries, and do hereby release the said railway company of and from all claims as aforesaid.

'Witness my hand and seal, this 10th day of Nov. A.D. 1887. (Signed) Joseph Brow. (Seal.)'

Ferguson, whom defendant called to prove plaintiff's signature to the release, was the clerk of the master mechanic, Ruxton. Ferguson and Ruxton witnessed the signature. Ruxton said he could not remember whether remuneration or employment was given to the plaintiff, but that defendant never refused to take him back. Ferguson testified that he did not think that any money had been paid to plaintiff, or that he had received any employment from defendant. In rebuttal, plaintiff stated that he was sent for to go to the office in the yard; that he there saw Ferguson, who had this release, and two other papers; that Ferguson asked him his wife's name, and those of his children, and then gave him a pen, and said, 'Sign this;' that nothing was said to him about employment; and that he received no consideration in employment or money from defendant. Defendant moved that a verdict be directed in its favor. This was overruled.

The only part of the charge material to the present discussion concerns the release. It was as follows: 'I charge you, in regard to the release, in as much as that is offered in bar of the plaintiff's claim, there is not, in view of the testimony laid before you, such a consideration proved to have been given for the execution of that paper as makes it competent for you to find it to be a bar to recovery. The testimony is that there was no money paid, and that there is nothing in that paper which obliges the company to employ the plaintiff. ' The jury returned a verdict for $4,000 for plaintiff. The court made an order granting a new trial, unless plaintiff entered a remittitur of $1,500, which he did. Thereupon judgment was entered for $2,500. The judgment has been brought by writ of error to this court for review.

Several of defendant's exceptions and assignments are based on the circuit court's rulings on matters of evidence. Defendant excepted to the admission of evidence that 19 days before, Thompson, while drunk, had caused a similar accident. Again, the defendant excepted to the refusal of the court to exclude a statement by Heiler that he had reported Thompson's drunkenness and negligent conduct to Henderson, and that Henderson had responded: 'What of it? If Thompson would kill three or four Polacks, there is enough of them yet. ' The other exceptions related to the evidence of Ferguson, Ruxton, Heiler, and plaintiff as to the signing of the release, it being claimed by counsel for defendant that, after proof of the signature, the release under seal was a binding contract, importing consideration, and could not be varied or contradicted and could only be set aside in equity.

Alfred Russell, for plaintiff in...