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AKERLY v. NEW YORK CENT. R. CO.

September 12, 1947

AKERLY
v.
NEW YORK CENT. R. CO.



The opinion of the court was delivered by: JONES

The plaintiff, a citizen of Pennsylvania, brings this action under the Federal Employers' Liability Act, U.S.C.A., Title 45, Chapter 2, ยง 51 et seq., for damages for injuries suffered while working for the defendant.

Defendant has filed a motion to dismiss for improper venue. The basis for this motion is an agreement entered into between the parties, subsequent to plaintiff's injury, whereby in consideration of an advancement of $ 50 to plaintiff by defendant, plaintiff agreed not to start suit on account of the injury in any courts, Federal or State, except those sitting within the State where he resided at the time of such injury or within the State wherein the injury was sustained. (Plaintiff was injured in Pennsylvania.)

 Plaintiff admits signing the agreement and receiving the $ 50 but claims the contract void and unenforceable for two reasons:

 (1) No consideration for plaintiff's alleged waiver of venue, and

 (2) Such an agreement, even if supported by consideration, is void under Section 55 of Title 45 U.S.C.A.

 If either of plaintiff's contentions is valid, defendant's motion must be overruled.

 I. Was there consideration for plaintiff's agreement not to bring an action in any court sitting outside the state of Pennsylvania?

 Plaintiff has taken depositions of the two New York Central Railroad Company claim agents who called on the plaintiff on February 18, 1946, gave him a check for $ 50 and obtained his signature on the agreement. It does not appear that this was an unusual or fraudulent procedure. Plaintiff had called one of the claim agents and had requested funds for living expenses while he was recovering from his injuries. The claim agents brought the check to plaintiff's house and had him first sign a 'non-bankable voucher' which, it was explained to plaintiff, was for the use of defendant's accounting department. At the top of the voucher these words appear: 'In full settlement of advance payment account injury sustained while employed as Engine Hostler, at or near Wesleyville, Pa., on or about May 14, 1945.'

 This voucher was endorsed on the back by plaintiff, with the words: 'Received payment, Blaine F. Akerly,' the two claim agents signing below plaintiff's signature as witnesses.

 Next, plaintiff was given a copy of the agreement which, according to the deponents, he read and understood, stating: 'Now, this means I can't bring a lawsuit outside of Erie County.' (Deposition of G. F. Radabaugh, p. 17.)

 After signing this agreement, plaintiff was handed a check for $ 50, payable to his order. (Photostatic copies of the voucher, the agreement and the check are attached to the depositions.)

 Plaintiff contends that had he been given the $ 50 upon his signing the agreement, there might be some reason to hold that the consideration for the payment of that money was the waiver of plaintiff's venue rights. However, since defendant required plaintiff to sign the voucher, as well as the agreement, plaintiff says that 'the only consideration for the payment of the $ 50.00 was that that sum was to be regarded as an advance payment on Akerly's claim for injury' and that 'if the $ 50.00 was paid as an advance on his personal injury claim, * * * then it is perfectly evident that there was no consideration for the release by Akerly of his valuable venue rights granted to him by the Federal Employers' Liability Act.'

 Plaintiff cites no authority for his contention that if a sum of money is paid as an advance it cannot be consideration for a waiver of certain venue privileges by the recipient. I do not see that by endorsing the voucher plaintiff did anything which would meet the requirements of consideration. The voucher was merely a notice to the treasurer of the defendant to pay $ 50 to the order of the plaintiff through the Irving Trust Company. By endorsing the voucher, plaintiff only recited his receipt of the money and did not thereby assent or agree to any terms appearing on the face thereof.


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