Weir v. Rountree

• Decision Date: 28 October 1909
• Docket Number: 3,086.
• Citation: 173 F. 776
• Parties: WEIR et al. v. ROUNTREE.
• Court: U.S. Court of Appeals — Eighth Circuit

173 F. 776

WEIR et al. v. ROUNTREE.

No. 3,086.

United States Court of Appeals, Eighth Circuit.

October 28, 1909

E. L Scarritt (William C. Scarritt and Elliott H. Jones, on the brief), for appellants.

Eugene F. Ware (Biddle & Lardner, Edwin Frieze, and Ware, Nelson &amp Ware, on the brief), for appellee.

Before SANBORN and VAN DEVANTER, Circuit Judges, and WM. H. MUNGER District Judge.

WM. H MUNGER, District Judge.

In this case complainants, as president and trustees of the Adams Express Company, filed their bill in the Circuit Court against Amy J. Rountree, alleging that the Adams Express Company entered into a contract with the St. Louis & San Francisco Railroad Company, whereby the railroad company engaged to transport express matter for the Adams Express Company over its line of road, and the employes having charge of the express matter should be transported over the road, for a consideration named, and it was a part of the contract between the said express company and the railroad company that the--

'said express company should indemnify and save harmless the said railroad company from all claims, demands, damages, actions, costs, and charges to which the said railroad company may be subject, or which it may be required to pay by reason of any injury or loss of life suffered or sustained by any agent or employe of the said express company while in, upon, or about any of the cars or station platforms of the said railroad company, whether such injuries or loss arise from the negligence of the employes of the said railroad company or otherwise.'

The bill further alleged that in January, 1904--

'one H. R. Rountree entered into an agreement in writing with the said express company at the city of Omaha, in the state of Nebraska, for his employment with it as an express messenger, whereby the said Rountree did express and agree that, whereas, the duties of said employment may require that he should be in, upon, or about, or travel on, the cars and conveyances of certain railroad companies and that the said railroad companies require of the said express company as a condition of their permitting said Rountree to be in, upon, or about, or travel on, their cars in the performance of said duties, that they should be indemnified by said express company against and released from all liability for and in respect of any damage or injury which might be sustained by the said Rountree, or for his death, in the course of such employment, whether same be occasioned by the negligence of said railroad companies or otherwise, in consideration of the premises and of his employment as aforesaid at a stipulated rate of compensation he, the said Rountree, did assume all risks of accidents and injuries which he might meet with or sustain in the course of his employment, whether occasioned or resulting by or from the gross or other negligence of any corporation engaged in operating any railroad, or of any employe of any such corporation, or otherwise, and whether resulting in his death or otherwise, and did thereby expressly agree to indemnify and save harmless the said express company of and from any and all claims which might be made against it at any time by any corporation under any agreement which the said express company had theretofore made or might thereafter make, arising out of any claim or recovery by him, the said Rountree, on his part, or by or on the part of his representatives, or any damages sustained by him or them by reason of any injury to him or by reason of his death, whether such injury or death resulted from the gross negligence of any such railroad corporation or any employe of any such corporation or otherwise, * * * and he did thereby expressly ratify all agreements theretofore made by the said express company with any corporation owning any railroad, and especially the said contract hereinbefore mentioned between the said express company and the said St. Louis & San Francisco Railroad Company, relative to the ultimate liability of the said express company to save said railroad company harmless from damages occasioned to the said Rountree through the negligence of the said railroad company or its employes, and he, the said Rountree, did expressly agree to be bound by said agreement as fully as if he were a party thereto.' The bill further alleges that while he was upon the St. Louis & San Francisco Railroad, in charge of certain express matter being carried and conveyed upon the line of said road, and while the said train was near the city of Columbus, in the state of Kansas, on or about February 14, 1906, said train and the car in which the said Rountree was being carried and conveyed as aforesaid was wrecked, and thereby the said Rountree was so injured that his death resulted therefrom a short time thereafter. The bill further alleges that the defendant Amy J. Rountree, widow of said H. R. Rountree, deceased, has commenced an action in the district court of Cherokee county, Kan., against said St. Louis & San Francisco Railroad Company, to recover the sum of $10,000 as her damages alleged to be sustained by reason of the death of said H. R. Rountree, caused by the negligence of said railroad company and its employes, etc. The bill further alleges that the railroad company, in its answer in said action, set forth the contract referred to between the said railroad company and the said express company, and the contract between the express company and said H. R. Rountree, but that the district court of Cherokee county, Kan., has sustained a demurrer to said answer, holding that such contracts were void and did not constitute a defense to said action.

Complainants in their bill pray that the court order and decree that the defendant Amy J. Rountree execute and deliver to the said St. Louis & San Francisco Railroad Company a good and sufficient release, under hand and seal, of all claims, demands, and causes of action arising out of the injury or death of the said H. R. Rountree, hereinbefore referred to, or connected with or resulting therefrom, to be of the same force and effect as though the same had been executed by the said H. R. Rountree under his hand and seal during his lifetime, and that a writ of injunction issue, commanding the said Amy J. Rountree, her agents and attorneys, and all persons claiming to act under her authority, direction, or control, to absolutely desist and refrain from prosecuting her said claim against the St. Louis & San Francisco Railroad Company in the district court of Cherokee county, Kan.

To the bill thus filed by complainants the defendant answered, in which she admitted the contract between the express company and the railroad company and the contract...