The opinion of the court was delivered by: DAVIS
This action was instituted by a railroad worker under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. to recover damages for injuries sustained from an on-the-job accident that occurred on May 27, 1959. The case went to trial and the jury returned a verdict for the plaintiff in the sum of $37,500.00.
The defendant filed motions for judgment non obstante veredicto and in the alternative for a new trial. After argument, the court entered orders on July 5 and 12, 1966 denying the motion for judgment n.o.v. but granting a limited motion for a new trial. On August 4, the plaintiff petitioned for reargument under Local Rule 34. This motion was granted on September 12, and reargument was had on November 7.
The undisputed facts indicate that the case was assigned for trial before the undersigned on March 5, 1964. On that day and in our presence, settlement discussions were entered into by counsel. The defendant offered $15,000 in settlement and the plaintiff's counsel accepted on the following day. Counsel for the plaintiff notified the office of the Clerk of the District Court that the case had been settled.
The plaintiff, however, refused to execute the releases when they were forwarded to him. In light of that development, his counsel made a motion in December 1964 to have the case restored to the civil jury list. That motion was granted with leave to defendant to file an amended answer to the complaint. The defendant then set forth the defense of settlement, accord, and estoppel and, on March 5, 1965, filed a motion for summary judgment. This motion was argued when the case was assigned for trial for the second time before the undersigned on April 12, 1965. The Court denied the motion and allowed the case to proceed to trial. The question now presented is whether we erred.
The requests for admissions submitted by the defendant to the plaintiff's counsel reveal the following:
Request No. 3: "That on March 5, 1964 in settlement of this case defendant offered the sum of $15,000 and this offer was accepted by counsel for plaintiff pursuant to authorization received from plaintiff."
Answer: "Admitted that defendant offered the sum of $15,000.00 on March 5, 1964, and it is also admitted that plaintiff's counsel on the evening of March 5, 1964 communicated acceptance of said offer to counsel for defendant, pursuant to authorization received by plaintiff's counsel from plaintiff on the evening of March 5, 1964. Counsel for plaintiff notified the District Clerk's Office of the settlement on the morning of March 6, 1964.
Request No. 4: "That counsel for the plaintiff had full authority to enter into settlement discussions, negotiate a settlement, and accept defendant's settlement offer on behalf of plaintiff.
Answer: "Plaintiff's counsel admits that he had full authority to settle this case on the evening of March 5, 1964, at which time he communicated acceptance of defendant's offer to counsel for defendant. Plaintiff's counsel further admits that he had full authority to settle this case at the time he notified the District Clerk's office of the settlement on the morning of March 6, 1964. Plaintiff, Wallace Good, personally claims the authority to settle this case was withdrawn on the evening of March 6, 1964 in a telephone call to plaintiff's counsel.
Plaintiff's counsel never understood that said telephone call was to act as a revocation of the settlement agreement. The telephone conversation between plaintiff and his counsel involved a discussion of the extent of plaintiff's railroad retirement benefits and the settlement of the instant action did not form a part of the discussion."
In the case at bar, there is no allegation of fraud, mutual mistake, or lack or inadequacy of consideration making the contract unconscionable or against the policy and purpose of the F.E.L.A. The plaintiff contends instead that the settlement did not constitute a binding contract because his acceptance of the defendant's offer was only part of the consideration demanded by defendant, the other part being plaintiff's signed release.
The Supreme Court has held on at least two occasions that the validity of a release in an F.E.L.A. case is governed by federal and not state law. Maynard v. Durham & Southern Railway, 365 U.S. 160, 81 S. Ct. 561, 5 L. Ed. 2d 486 (1961); Dice v. Akron, C. & Y.R. Co., 342 U.S. 359, 72 S. Ct. 312, 96 L. Ed. 398 (1952). In Dice, the Ohio Supreme Court had required the application of strict standards of proof to show fraud in obtaining a release in an F.E.L.A. case. In reversing the state court the United States Supreme Court stated, at p. 361, 72 S. Ct. at p. 314:
"Manifestly the federal rights affording relief to injured railroad employees under a federally declared standard could be defeated if states were permitted to have the final say as to what defenses could and ...