Waters v. Guile

• Decision Date: 20 July 1916
• Docket Number: 2784.
• Citation: 234 F. 532
• Parties: WATERS et al. v. GUILE.
• Court: U.S. Court of Appeals — Sixth Circuit

234 F. 532

WATERS et al. v. GUILE.

No. 2784.

United States Court of Appeals, Sixth Circuit.

July 20, 1916

[Copyrighted Material Omitted]

T. S Parker, of Detroit, Mich., and C. E. Ward, of Grand Rapids Mich., for plaintiffs in error.

S. A. Anderson, of St. Paul, Minn., for defendant in error.

Before KNAPPEN and DENISON, Circuit Judges, and SATER, District Judge.

KNAPPEN Circuit Judge.

The Pere Marquette Railroad Company is a railway carrier engaged in interstate and intrastate commerce, its railroad being operated by plaintiffs in error as receivers. While in the latter's employ as rear brakeman on a freight train running between Plymouth, Mich., and Grand Ledge, Mich., which train carried both intrastate and interstate freight, defendant in error (whom we shall hereafter call plaintiff) received, in the course of switching operations, serious injuries alleged to be due to the negligence of another member of the train crew, and on account of these injuries recovered verdict and judgment under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65, amended April 5, 1910 (36 Stat. 291, c. 143)).

Plaintiffs in error (hereafter called defendants) not only assign error with respect to proceedings upon the trial, but insist here, as they did in the court below, that plaintiff's right of action under the federal Employers' Liability Act is taken away by the Michigan Workmen's Compensation Act (Act No. 10, P.A. Mich. (Ex. Session) 1912) and the proceedings had thereunder before this suit was begun.

In our opinion in Grand Trunk Railway Co. v. Knapp, 233 F. 950, . . . C.C.A. . . ., decided June 30th last, the question of the relation of the Michigan statute to the federal Employers' Liability Act, and the applicability of the Michigan act to injuries suffered by employes of interstate railroad carriers received careful conclusion and discussion; and we there reached and announced the conclusion that, in view of the paramount jurisdiction of Congress over interstate commerce, and thus over remedies against employers therein for injuries sustained by employes while in such commerce, the federal Employers' Liability Act provides the exclusive remedy for at least negligent injuries to employes of interstate railroad carriers while actually engaged in interstate commerce. We found it unnecessary to decide, and intimated no opinion on, the question whether the state act would apply had the injuries occurred without the employer's negligence. We held that Knapp's injuries were suffered while employed in interstate commerce, and affirmed recovery therefor. We refer to our opinion in the Knapp Case for a statement of the reasons for the conclusions there reached, as well as for a synopsis of the important features of the Michigan statute. The defendants here previous to the accident filed their election to come under the act. Plaintiff, however, had never previous to the accident accepted the act, unless by his failure to give written notice of his nonassent. As the train on which plaintiff was working contained cars loaded with interstate freight, plaintiff was engaged in interstate commerce within the meaning of the federal Employers' Liability Act, notwithstanding the train in question ran only between points in the same state. N.Y.C.R.R. Co. v. Carr, 238 U.S. 260, 35 Sup.Ct. 780, 59 L.Ed. 1298. The views announced in the Knapp Case, and the reasoning on which those views are based, require us to hold that the federal act provided the exclusive remedy for plaintiff's injuries at the time they were suffered, if occasioned by defendant's negligence, and that the Michigan act was not made applicable thereto by plaintiff's failure to give notice of his nonassent to the act.

The instant case contains, however, a feature not found in the Knapp Case: Two days after the accident plaintiff's wife applied at the office of the State Industrial Accident Board, where the Michigan Compensation Act was explained to her, and where she signed a claim expressed to be under the act, and later notices addressed to the railroad company, claiming compensation under the act, were, at her request, made out ready for signature. Both copies of the notices were signed by plaintiff. One copy was sent to defendant; the other was returned to the Industrial Accident Board. Defendants took up the matter through their representative and prepared a proposed agreement for settlement, upon the basis of the section of the act applicable to plaintiff's claim as drawn. (The claim in fact did not state the full extent of plaintiff's injuries.) Plaintiff knew, at least from what defendants wrote him, that the Michigan Compensation Act Fixed compensation on the basis of average weekly wages for a stipulated number of weeks, and that defendants wished, or at least were willing, to settle with him under that law and on that basis. His failure to settle was due to a dispute as to the amount of compensation to which plaintiff was entitled-- the point of disagreement, at least in the first place, being the amount of average wages. Because of this dispute as to the amount of compensation plaintiff brought this suit. We assume, for the purposes at least of this review, that plaintiff knew he had applied for compensation under the state act. No settlement was in fact carried out, or even agreed upon, nor was arbitration asked for. Defendants insist that by this action plaintiff elected to come under the Michigan Compensation Act, and that the transaction amounted to an agreement to adjust all liability under the provisions of that statute, which provides for arbitration in case of disagreement between employer and employe, with right of review by the Industrial Accident Board of the arbitrator's findings.

As between two inconsistent remedies, the deliberate choice of one ordinarily constitutes an election as against the right to claim under the other; and we assume that, had plaintiff the option of proceeding under either the Michigan Compensation Act or the federal Employers' Liability Act, what he did amounted to an election which would bar suit under the federal act. Bomgardner v. Zilch, 19 Ohio Cir.Ct.r.(N.S.) 438. But election presupposes a choice of remedies, and where there is but one remedy available there can be no choice of remedies, and an unsuccessful pursuit of an inapplicable remedy would not bar resort to a remedy that is applicable. Brown v. Fletcher, 182 F. 963, 105 C.C.A. 425.

It is established by the verdict that plaintiff's injuries were occasioned by defendants' negligence, and the trial court properly held that those injuries were suffered during plaintiff's employment in interstate railroad transportation. The federal act thus provided plaintiff's sole and exclusive remedy for his injuries. ^[1] His mere claim under the Michigan act, not prosecuted to recovery, was thus not an effective election as against a remedy under the federal act. In reaching this conclusion we lay out of account the suggestion of plaintiff's counsel that the record does not affirmatively show that when plaintiff filed the claim for compensation he knew that the train on which he was working carried interstate freight, and that it does not affirmatively appear that he knew he had a right of action under the federal act

We have no doubt that it was competent for the parties to make a settlement, after the accident, upon the basis provided by the Michigan Compensation Act. Indeed, such adjustment, as eliminating the question of defendants' negligence might well have been regarded by both parties as desirable. The question comes, we think, to this: Whether what was done after the accident amounted to a settlement which would bar proceeding under the federal statute.

No settlement was in fact reached. The proceeding in legal effect amounted, at the most, to an implied agreement (in case adjustment should not be reached between the parties) to arbitrate their differences, employing for the purpose the machinery of the act. But such voluntary agreement to arbitrate, not carried into effect, did not amount to a settlement, nor did it bar resort to applicable remedy at law, unless by what was done plaintiff is estopped therefrom.

There is, we think, no room for estoppel, unless in the fact that defendants provided 'medical and hospital services and medicines' for plaintiff during the first three weeks after the injury, which defendants were by section 4, part 2, of the act required to do. But while defendants showed that payments for such purposes (aggregating nearly $300) were made under approval of the legal department, by reason of plaintiff's claim for compensation under the act (which claim reached that department about a month after the accident), yet it does not appear that defendants have been legally prejudiced by the payment; for not only is it not shown that defendants were not already directly obligated to the persons furnishing such services and medicines, but had plaintiff paid the bills in question defendants' liability for his injuries, as found by the verdict, would naturally include the payments in question (plaintiff was in the hospital six weeks in all) and theoretically plaintiff's recovery has been lessened by the amount thereof.

We do not overlook the fact that plaintiff's signed account of the accident given defendants' representative six days later expressed the opinion that no one was to blame for the accident, and that the negligence alleged in his letter refusing defendants' offered adjustment was not that asserted here. But while these statements seriously discredit plaintiff's testimony, as to the fact of the asserted negligence, they do not, we think, legally estop him from such assertion-- even assuming (which we do not...