Lumley v. Wabash Ry. Co.

SWAN, District Judge (after stating the facts). 1. The objection that jurisdiction is not made to appear by any averment in the bill is not well founded. The court will so far notice judicially the relation of the dominion of Canada to Great Britain as to recognize the citizens of Canada as “citizens and subjects of a foreign state.” Whatever distinction there may be between the citizenship enjoyed by a subject of the queen of Great Britain, resident in the United Kingdom, and that possessed by a citizen of the dominion, or of its constituent provinces, they are both subjects of the same sovereignty, and “citizens of a foreign state,” under the act of 1887, defining the jurisdiction of the federal courts. The court will take judicial notice of historical facts recognized by the political power of the nation in treaties and otherwise. Jones v. U. S., 137 U. S. 202, 11 Sup. Ct. 80; Ex parte Lane, 6 Fed. 34. The averment of the bill that complainant is “a citizen of the province of Ontario, in the dominion of Canada,” is sufficient to confer jurisdiction on this court, under the statute cited. If this were otherwise, however, the fact that defendant obtained the removal from the state court of the action at law brought by plaintiff, in which exactly the same allegation of citizenship was made, and in its petition alleged as a ground for removal that the complainant is “an alien and citizen of Great Britain,” suffices, of [26] itself, independent of other considerations, to demonstrate that the first ground of the demurrer must be overruled, since the record-' in that cause, of which this is a continuation or incident, established the alienage of the complainant. ' The second objection to the bill it is unnecessary to discuss. 2. The remaining grounds of demurrer may be considered together, as a demurrer for want of equity. There can be no question but that the terms of this release are sufficiently comprehensive to exclude recovery by plaintiff for the injuries from which he is now suffering, although the same were not detailed specifically in the instrument, unless the release can be avoided for fraud or mistake. “A release is held to include all demands embraced by its terms, whether particularly contemplated or not, and direct parol evidence that a certain claim was not in the minds of the parties is not admissible. Deland v. Manufacturing Co., 7 Pick. 244; Hyde v. Baldwin, 17 Pick. 303; Sherburne v. Goodwin, 44 N. H. 271. The surrounding facts and circumstances may, as in other cases, be shown, in order to apply the language of the instrument to its proper subject-matter, and prevent its application to a matter not involved in the transaction. Littledale, J., in Simons v. Johnson, 3 Barn. & Adol. 175; 1 Greenl. Ev. §§ 286, 288.” The Cayuga, 8 C. C. A. 188, 59 Fed. 483, 486. In construing a release, “the intent is to be sought from the whole and every part of the instrument, and when general words are used, if it appears by other clauses of the instrument, or other documents definitely referred to, that it was the intent of the parties to limit the discharge to particular claims, courts, in construing it, will so limit it.” Dunbar v. Dunbar, 5 Gray, 103, 104; Averill v. Lyman, 18 Pick. 346; Brown v. Cambridge, 3 Allen, 474. There is, however, no need to invoke this rule of construction. The language of this release is its own interpreter. The subject-matter of the instrument is described as “the severe contused and lacerated wound on forehead, right side, fracture of right arm between wrist and elbow, and various injuries and contusions, both internally and externally, in and on various parts of my body.” This aggregation of injuries, of simultaneous occurrence, and thus conjunctively stated in the recital, is ostensibly the foundation of the contract referred to in the covenants off the releasor, discharging and releasing the defendant from all actions, suits, etc., arising from “injuries so aforesaid received, and any and every and all results hereafter flowing therefrom”; and for a discharge from liability from these, as a whole, defendant paid the stipulated consideration. The notice to defendant that plaintiff would insist that he was not bound by the receipt of the $75 paid him in settlement at Danville is cogent evidence that he knew, despite his denials, the scope and effect of the release. It is not claimed that complainant was unable, because of mental or physical infirmity, to comprehend the instrument, or that his signature thereto was obtained by any false representations of matters of fact, nor yet that he was unable to read its contents. The charge that Austin read the paper rapidly, but did not read all of it, immediately preceded, as it is, by the admis [27] si on that complainant does not know whether he read it all, is without weight. An intentional omission of a material part of the deed would be evidence of fraud, which is not to be presumed, but: must be clearly shown; and this averment, not being well pleaded, is not admitted by the demurrer. Dillon v. Barnard, 21 Wall. 430. If it is true that “the only part of the paper so read that he could understand it” was the words “fracture of the arm,” and that relating to the $75, complainant was grossly negligent in signing until lie knew its full import. He was in the complete possession of Ms faculties, unaffected by opiates, and so keenly alive to the situation, if Ms bill states truly, as to make his acceptance of the $75 conditional upon his recovering in a limited time. The presumption is that he knew the contents of the paper he signed. Hazard v. Griswold, 21 Fed. 180: Howland v. Blake, 97 U. S. 625; Insurance Co. v. Nelson, 103 U. S. 548; Curley v. Harris, 11 Allen, 112; Taylor v. Fleckenstein, 30 Fed. 99. If lie did not, he can only avoid the consequences of his negligence by clear proof that it was induced by fraud or excusable mistake. Says Gibson, C. J., in Greenfield’s Estate, 14 Pa. St. 491: "If a parly who can read will not read a deed x>ut before him for execution, or if, being unable io read, will not demand to have it read or explained. he is guilty of supine negligence, which, I take it, is not the subject of protection at law or in equity." To the same effect are Upton v. Tribilcock, 91 U. S. 45-50; Railroad Co. v. Shay, 82 Pa. St. 198; Eccles v. Railway Co. (Utah) 26 Pac. 924; Albrecht v. Railroad Co., 87 Wis. 105, 58 N. W. 72. Under these circumstances, and in the absence of fraud, complainant’s case is not aided by the fact that the consideration received in settlement of his claim against the railroad company has proved wholly inadequate to compensate him for the injuries he suffered, and their consequences. “The law,” said Lord Wynford in Blachford v. Christian, 1 Knapp, 77, “will not assist a man who is capable of faking care of his own interest, except in cases where he has been imposed upon by deceit against which ordinary prudence could not protect Mm. If a person of ordinary understanding, on whom no fraud has been practiced, makes an imprudent bargain, no court of justice can release him from it.” Willis v. Jernegan, 2 Atk. 251; French v. Shoemaker, 14 Wall. 315, 333; Eyre v. Potter, 15 How. 42, 60; Gavinzel v. Crump, 22 Wall. 308, 321; 1 Story, Eq. Jur. § 244. .Does the complainant’s case establish such fraud or mistake as will avoid the settlement? The bill avers that She release, so far as it covers the injuries from which complainant suffers, was obtained from him “surreptitiously and fraudulently,” and “that if said release was not obtained by actual fraud on the part of the officers, and by the suppression from your orator of the truth concerning Ms physical condition, by said surgeon, then it was given and received under a mutual mistake of the vital facts concerning your orator’s injuries.” So far as the charge of fraud is concerned, it is clearly ill pleaded. 1( is made in the most general terms, without stating the facts on which the charge rests. The free use of the epithets “fraudulent,” [28] “fraudulently,” and “surreptitiously” neither informs the conscience of the court of the facts of the case upon which it is asked to act, nor enables the defendant to meet the accusation of wrongdoing made against him. The pleading is open to the further objection that it is lacking in certainty and positiveness, and its charges are contingently and alternatively stated. It is not enough to denounce and opprobiously characterize the party or transaction assailed, but the facts should be so stated that the nature of the matter in issue will prima facie warrant the relief sought. Brooks v. O’Hara, 8 Fed. 531; Hazard v. Griswold, 21 Fed. 178; Lafayette Co. v. Neeley, Id. 738; Fogg v. Blair, 139 U. S. 118, 11 Sup. Ct. 476. “A. court of equity, when examining a bill of complaint to find a grievance which will justify its interposition, looks to the substantive facts averred in it, not to the adjectives or adverbs which may be added to qualify them.” Per Grier, J., in Magniac v. Thomson, 2 Wall. Jr. 254, Fed. Cas. No. 8,957. Such epithets are merely allegations of conclusions of law, which a demurrer does not admit. Ambler v. Choteau, 107 U. S. 586, 591, 1 Sup. Ct. 556; Fogg v. Blair, supra; Dillon v. Barnard, supra; U. S. v. Ames, 99 U. S. 35, 45; Pullman’s Palace-Car Co. v. Missouri Pac. Ry. Co., 115 U. S. 5S7, 6 Sup. Ct. 194. Whether the bill makes a case for relief on the ground of mistake of fact, it is not necessary to decide. Accepting its statements as sufficient for that purpose, it seems clear that plaintiff’s failure to promptly repudiate the settlement is fatal to his claim for rescission. He suffered severe pain in the injured shoulder at the time he executed the release. Without reproaching him for accepting the opinion of the surgeon that the pain was sympathetic, merely, and proceeded from the fractured arm, it appears that it continued and increased in severity from that time; that he was advised by an eminent surgeon as early as March, 1891, that there was a fracture of the right shoulder and atrophy of the muscles in its vicinity on that side, and that his injuries were permanent. His only action on this knowledge and advice was a notification to the defendant’s surgeon, mailed several months after the accident, that he should insist that he was not bound by the receipt of the $75 paid him, and that he would “insist on his rights in the premises.” He made no offer to return the money paid him, nor did he further assert his purpose to rescind until he brought suit in the state court in March, 1894. His excuse for this inaction, and the failure to return what he had received, is that his poverty prevented. Having discontinued that suit to avoid the objection that he had not returned the money paid him by defendant, he brought his action in this court in September, 1894, after tendering back the amount. Unfortunately for plaintiff, his pecuniary condition will not avail to condone his delay. Hayward v. Bank, 96 U. S. 611, 617; Leggett v. Oil Co., 149 U. S. 294, 13 Sup. Ct. 902. It was his duty to pursue his claim promptly, and not by empty words. Clegg v. Edmondson, 8 De Gex, M. & G. 787, 810. Even the institution of a suit does not of itself relieve a party from the charge of laches. His failure to prosecute it with diligence subjects him to the same consequences as if it had never been brought. Johnston v. Mining Co., 148 U. S. 360, 13 Sup. Ct. 585. He should [29] have announced Ms purpose to enforce Ms claim, and adhered to it. Grymes v. Sanders, 93 U. S. 55; McLean v. Clapp, 141 U. S. 429, 12 Sup. Ct. 29. Instead of this, he remained passive for more than 3 years after the settlement, before he brought Ms first action, and for over 3 years after he was advised and convinced that his injuries were permanent and entailed total incapacity to labor, and he permitted nearly 5 years to run before filing this bill. The retention of the money paid plaintiff, and Ms long acquiescence in tbe settlement, are not excused by any matter alleged in the bill. He knew in March, 1891, all the facts he now urges for the cancellation of the release, except the exact terms of that instrument, which he made no effort to learn, though he seems to have known its substance and effect. These facts constitute a ratification of the settlement, from which he cannot at this late day recede. The complainant’s case is certainly pitiable, but it is impossible to afford him relief consistently with the principles of equity. He has by his own remissness erected an insuperable obstacle to the aid of the court. The demurrer must be sustained, and the bill dismissed.