Before SWAN, CHASE and CLARK, Circuit Judges.
This appeal is from a judgment of the District Court for the District of Vermont in a suit under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., by one of the defendant's employees to recover damages for personal injuries. The defendant answered the complaint by denying liability and pleading a general release.Issue was joined and the case went to trial by jury. At the close of all the evidence the court, relying upon Vermont law, granted the defendant's motion to dismiss the complaint on the ground that the release barred the suit and entered a final judgment for the defendant. Thereafter the plaintiff died and the duly appointed administratrix of his estate was substituted as a party. She has taken this appeal.
Federal jurisdiction is clear and unquestioned and the only issue before us is whether the court erred in holding as a matter of law that the general release barred the suit. The execution and delivery of the release was admitted but the plaintiff sought to avoid it on the ground that he had been fraudulently induced to sign it by a claim agent of the defendant.
The plaintiff was a car inspector at work for the defendant in its freight yard at Burlington, Vermont, when he fell from a car which ran over his left foot and injured it so severely that his leg had to be amputated seven inches below the knee. He testified that about four days after he was hurt and while he was still in a hospital at Burlington the defendant's claim agent and its chief car inspector came to see him and he told them how the accident happened. Soon after he was discharged from the hospital the claim agent called at his home in Burlington, at which time they discussed a settlement. The upshot of that conversation was that the agent offered to pay $1500.00 but the plaintiff refused to accept that sum, saying, "it ought to be worth $5000.00 anyway." The agent replied that he couldn't pay so much. A few days later the claim agent returned to the plaintiff's home and the plaintiff's testimony as to what then occurred is as follows:
"A. Well he came down with a release and a check of 1500, and if I was - if I accepted the check of 1500 he would see that I would get more money. If I would go to court with it he said it might drag on two or three years and I probably wouldn't get anything. So in my condition, I hadn't worked or nothing coming in, I signed the release.
"Q. Did he say anything to you - did he promise you anything? A. He promised me he would see that I would get my pension retirement.
"Q. He promised he would see you got more money? A. Yes, sir.
"Q. And he would get your pension for you? A. He would try to get the pension.
"Q. And as a result you signed the release? A. I did.
"Q. And you signed the voucher - I mean the check? A. Yes.
"Q. Did he promise you anything about work at that time? A. No, sir."
He executed the release on October 24, 1944. It was general in form and specific in reference to the injury and consequent amputation of his leg. The stated consideration to him was "Payment of Hospital-Doctor Accounts, plus payment of $1,500.00. - the Railway to furnish an artificial foot agreeable to Dr. Truax and injured employee." This consideration was paid to the plaintiff and there was no proof that he thereafter demanded anything more or that all or any part of the consideration was ever returned or tendered to the defendant before or after this suit was brought on July 25, 1945.
Sometime after that date the plaintiff went to St. Albans, Vermont, on his own initiative, to see the claim agent who told him he "would try to get the pension or get me a job." He was offered a job as a call boy at St. Albans on condition that he would discontinue his suit. He refused to accept the job offer, however, because he thought it would have been too expensive to live away from his family in Burlington. He asked for a job at Burlington but none was available there for him. After returning to Burlington he was advised to drop his suit by a friend who was in no way connected with the railroad. The friend wrote and brought to the plaintiff two letters - one addressed to the plaintiff's attorney and one to the defendant's claim agent - which the plaintiff read and then signed and mailed. The one to ...