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Zukoski v. Baltimore & Ohio Railroad Company.

December 28, 1962; As Amended April 4, 1963.

WALTER E. ZUKOSKI, APPELLANT,
v.
BALTIMORE & OHIO RAILROAD COMPANY.



Before KALODNER and FORMAN, Circuit Judges and ROSENBERG, District Judge.

Per Curiam.

Upon review of the record we find no error. The Order for Judgment of the District Court will be affirmed.

On Petition for Rehearing

Before BIGGS, Chief Judge, and McLAUGHLIN, KALODNER, HASTIE, GANEY and SMITH, Circuit Judges.

KALODNER, Circuit Judge.

The appellant has petitioned for rehearing of our per curiam affirmance on December 28, 1962 of the Order of Judgment*fn1 of the District Court. He also petitions for modification of our Order imposing costs upon him on the ground that it "constitutes a serious financial hardship to him and his family, etc."

Since the defendant in its Answer to the Petition for Rehearing and Modification of Order Relating to Costs has stated that it will waive the collection of its costs "solely because of the claim of hardship upon plaintiff's family" the Order relating to costs will be amended so as to provide that each party is to bear its own costs.

There is no merit to the petition for rehearing. The reasons advanced therein are simply a rehash of the contentions previously advanced by the appellant. On our earlier review of the record we found them to be so specious as not to require our discussion.

The sum of appellant's position is that the District Court erred (1) in entering judgment in favor of the defendant on a jury's finding that he had not been induced by alleged fraudulent conduct on the defendant's part to enter into a release on February 1, 1957 in settlement of his then existing lawsuit under the Federal Employers' Liability Act, and (2) in granting the defendant's motion for a directed verdict on a count in his Complaint which sought damages for an alleged breach of defendant's promise to give him "suitable employment."

The record discloses that in June 1955 the appellant brought an action against the defendant railroad under the Federal Employers' Liability Act alleging that he had sustained severe and permanent injuries while at work as a machinist in October 1950. The defendant paid the appellant $30,000 in settlement of his action on February 1, 1957 on his execution of an unconditional release at the office and in the presence of the experienced attorney who then represented him. An order of "dismissal of prejudice" was entered thereafter on February 14, 1957 by the District Court, pursuant to the execution of the release. The latter, it may be noted, stated in capital letters in part as follows:

"THIS RELEASE IS EXECUTED BY ME SOLELY FOR THE CONSIDERATION ABOVE EXPRESSED, WITHOUT ANY REPRESENTATION WHATSOEVER, AND HAS BEEN CAREFULLY READ BY ME AND UNDERSTOOD BY ME BEFORE SIGNING."

The release also contained the following statement in the appellant's own handwriting:

"I have read and understand this statement."

It may be noted parenthetically that the record discloses the appellant is a ...


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