MAYNARD v. DURHAM & S. R. CO.
Legal provision: Federal Employers' Liability
Argument of Charles F. Blanchard
Chief Justice Earl Warren: Number 183 Eugene E. Maynard, Petitioner, versus Durham & Southern Railway Company.
Mr. Charles F. Blanchard: Mr. Chief Justice, may it please the Court.
This action was brought in the North Carolina State Court by the railroad employee, Maynard against his employer, the Durham Southern Railway Company under the provisions of the Federal Employer's Liability Act, growing out of injuries which he received on August 22nd, 1955.
The case came on for trail in the Wake County Superior Court in April 1959, the Superior Court being North Carolina's (Inaudible) highest court.
Railroad's motion of a nonsuit was granted at the end of all of the evidence, without the juries having the opportunity of passing on any of the issues.
The Supreme Court on appeal, affirmed the Superior Court with one justice dissenting.
Thereafter this -- the United States Supreme Court granted the writ on 27 June, 1960.
The petitioner was seriously injured while assisting in loading of one of the railroad's motor trucks.
In bar a petitioner's rights, the railroad pleaded and offered evidence of a release signed by the petitioner.
Plaintiff or petitioner attacks the validity and did attack the validity below of the purported release on two grounds, one that it was unsupported by any consideration whatsoever and its execution was procured by fraud, misrepresentation and undue influence.
Now, to please Court, since the railroad conceded in open court in the North Carolina Supreme Court that -- probably the evidence offered by the petitioner, was sufficient to take the case to the jury on the issue of negligence, it would appear unnecessary for me to take the Court's time in reciting the minute details of how the plaintiff's serious injuries occurred during the loading of the truck.
With that background, let us consider the evidence most favorable to the petitioner in respect to the execution of the release, itself.
Following his injury, the petitioner was off his job for approximate two weeks and was required to see several doctors, before he was able to return to work around the middle of September 1955.
Thereafter, on Saturday, September 17, 1955, petitioner went to the office of the defendant railroad's general manager to get his pay check.
The petitioner produced evidence, that on this date the defendant railroad owed him a $144.60 for back wages.
There were two men in the office, the general manager these being the petitioner and the general manager and no others.
When the petitioner requested his pay check, the general manager took a piece of paper from the desk drawer and keeping it partially covered with his hand, pushed it across the desk for petitioner and told petitioner to sign.
He didn't take his hand off to the paper testified the petitioner, I remember very distinctly that Mr. McAllister kept his hand on it, he further testified.
He also testified that he was not even given a chance to read this paper.
Petitioner thought that he was signing for his pay check and so he testified and he testified he ordinarily received his pay check on the Saturday and this being -- this was also Saturday.
He would not have signed the paper had he known it was a release and that he had never been paid anything -- he had never been paid anything for his injuries we -- when he signed what he thought was a receipt.
Now, the petitioner urges that under this evidence, there were two jury questions, it's properly two jury questions, one, the question of fraud whether it was procured by fraud and second was there complete lack of consideration as alleged.
In doing so, making these contentions, the petitioner does not rely only on evidentiary or factual propositions.
We feel that the Supreme Court of North Carolina simply misinterpreted or ignored the vast federal questions and authorities on the subject of releases.
First, as to fraud, Dice versus Akron, Canton & Youngstown Railroad are considered at this Court in 342 U.S. 1952, seems to be and appears to be the leading case in the last time this Court has considered the question of releases and the -- and the fraud in the procurement of releases under the Federal Employers Liability Act.
There, the petitioner alleged that he was owed $900 by the railroad and he went to get his pay check and the railroad told him, he was merely signing a receipt, turned out to be a release from liability for personal injuries.
Justice Charles E. Whittaker: That's when he discovered this fraud, didn't t he?
Mr. Charles F. Blanchard: Yes Your Honor, the Court did say that there -- that there was deliberate false statements made to deceive and which did deceive in that case.
Here, in the principal case, we have false and deceptive silence made to deceive and which did deceive.
We have a situation where the General Manager knew the plaintiff had been hurt, he'd come for his pay check, he kept the so-called release partially covered with his hand during the interview in which they were alone and it knows --
Justice William J. Brennan: Well, what -- what is your complaint that -- the copy that the North Carolina Supreme Court applied the wrong standard?
Isn't this on determination that whatever the appropriate standard is, the proofs were not sufficient to raise the jury question?
Mr. Charles F. Blanchard: Your Honor, we feel that it's more than that, the -- we feel that the North Carolina court misinterpreted all of the federal authority apparently and while they didn't specifically said, apparently, they felt that the federal authorities require affirmative statements -- false statements or require some deliberate act of fraud and since there were no affirmative misstatements in this case, we feel that they let it go off on that and that tenure, but missing --
Justice William J. Brennan: (Voice Overlap) in other words that there was deficiency in the quantum of proof, isn't that the basis on which they turned it?
Mr. Charles F. Blanchard: Your Honor, we feel it's more than that.
We feel that they ignored the federal authorities.
We'd say that there does not have to be affirmative fraud.
There can be fraud by silence and by actions, rather than affirmative, deliberate fraud and in that respect we say, they ignored the federal authorities.
They did not consider for instance, the Purvis versus Pennsylvania case, decided by the Third Circuit, the same year as Dice, but following Dice and it is based on Dice.
We feel in that case the further -- the Purvis case the facts are as close to being on all force as this case as any case can be.
There, there was no deliberate, no affirmative misstatement of facts, it was simply the actions and the silence to the railroad which --
Justice Potter Stewart: Now, it's on the fraud question, how about on the one of consideration?
Mr. Charles F. Blanchard: Now --
Justice Potter Stewart: I mean it just --
Mr. Charles F. Blanchard: Yes.
Justice Potter Stewart: -- is your -- isn't your point really what Justice Brennan has suggested by his question that you -- you put a little other way, you say they had ignored the federal authorities, but the authorities upon which you rely I gather, are those cases which upheld that it -- that under the facts of those cases, a jury question was presented.
Isn't all you're asking here for a right to go to jury?
Mr. Charles F. Blanchard: Yes, Your Honor.
May I ask --
Justice Potter Stewart: On -- on both issues?
Mr. Charles F. Blanchard: Both issues --
Justice Potter Stewart: On the issue of fraud or the issue of one of lack of --
Mr. Charles F. Blanchard: Yes, Your Honor.
Justice Potter Stewart: -- federal of consideration by that way, lack of consideration.
Mr. Charles F. Blanchard: Now, as -- as to lack of consideration, plaintiff clearly gives the evidence that he was owing at the time of the execution of this release, they owed him a $144.60.
The North Carolina Supreme Court never treated total lack of consideration in its opinion.
On the inadequacy of consideration did they discuss in their opinion, which is of course in the record.
They said, near inadequacy or consideration alone, is insufficient and cited only to an immediate state court cases.
They cited the Nevada's case and the William's case and intermediate cases in Illinois, Missouri as authority for that holding and at no time did they consider the complete lack of consideration and in our brief, we have the Burns case coming out of the Eight Circuit and the Hogue case from a certain District Court which reasonably and logically, we say require that a release be supported by some consideration and when its not supported by any consideration, its nullity.
Justice William J. Brennan: (Voice Overlap) the $144.60 pay, wasn't that it?
Mr. Charles F. Blanchard: Yes, Your Honor.
Justice William J. Brennan: It's your point that the only evidence -- there was at least a jury question although that did -- was the consideration supporting the release or not, is that it?
Mr. Charles F. Blanchard: Yes, Your Honor.
Justice William J. Brennan: Because apparently, the Court held that there was no evidence in the record to support the contention that he was entitled for the $144.60 as wages.
And your suggestion is there was some evidence upon of which a jury can make that finding and thus find that there was -- a release was not supported by consideration, is that it?
Mr. Charles F. Blanchard: Yes, Your Honor.
We feel that North Carolina has just decided the federal question of substance not in accord with decisions of this and other federal courts and that is not merely an evidentiary or factual proposition before this Court in this case.
And that if the case is permitted to stay, it will become authority for other erroneous state decisions under the Federal Employers Liability Act.
Justice Potter Stewart: Did Judge Parker write a -- he dissented, didn't he?
Mr. Charles F. Blanchard: He dissented, but he did not write a (Voice Overlap) dissenting opinion.
Justice Potter Stewart: -- notice anything.
Justice William J. Brennan: Now, on this last point Mr. Blanchard, I notice at page 31, this is not a complete transcript, isn't it, it's just a narrative point of transcript.
Is the evidence that you suggest presented the jury question that which here under redirect examination at page 31, “The $144.60 that I receive there from Mr. McAllister there was not for injuries that was my pay check.”
Mr. Charles F. Blanchard: That's one of the places in record, which we complain of and there are two or three others, Your Honor.
One on page 21, “I thought I had to sign for my pay check, at that time the railroad owed me $144.65 for labor --
Justice William J. Brennan: What page is that?
Mr. Charles F. Blanchard: 21.
Justice William J. Brennan: Thank you.
Mr. Charles F. Blanchard: I never received anything from the railroad as a result from the injury which I have described here today and there -- there's I think, on page 26 of the transcript a similar statement.
Chief Justice Earl Warren: Mr. Nye.
Argument of Charles B. Nye
Mr. Charles B. Nye: Mr. Chief Justice.
I like to say first, there is nothing in the record to suggest that North Carolina Supreme Court did not rule in accordance with the applicable federal authorities.
It was stipulated in the trial court and the record will show that the case was to be decided by federal law.
The Supreme Court of North Carolina recognized that the case should be decided by federal law.
It recognized the problem before it, because it says, “The only question to be determined is whether or not the issue fraud and lack of consideration should go to jury.”
So what I am here doing now, is arguing a nonsuit motion, because there is no law in conflict.
There is no law that I know of that the petitioner cited that I am in fundamental disagreement with.
Now, he raised two questions in his petition.
He cited the same two questions in his brief, but he did not as such, discussed the questions.
He raised five points and discussed five points.
I would like to mark -- remark briefly on each of the five points.
His first point, was federal not state law prevails is conceded here, is conceded in the trial court, it was conceded in the Supreme of North Carolina.
His second point was defendant concedes evidence sufficient to take the case to the jury had the plaintiff not signed the so-called release.
In the Supreme Court of North Carolina, my statement was the evidence was properly sufficient to go to the jury on negligence, had not the release existed, but if you will read this evidence, there is not enough evidence of negligence.
There is not enough evidence of injury to support a jury verdict for negligence and damages, but that question was not before the Supreme Court, it is not before this Court, but it does have some bearing on the entire picture of this action.
Justice William J. Brennan: But -- but that's question is not before us (Voice Overlap) --
Mr. Charles B. Nye: No, sir.
That was raised to support in the petitioner's brief.
Petitioner's point 3 is this, “Only preponderance or greater weight of evidence is required to set a signed release."
The Supreme Court of North Carolina stated that and recognized the federal principle.
It was conceded in my brief that that is the law.
Petitioner's point 4, so-called release unsupported by any consideration and therefore void.
I'd like to say that, in -- in that connection this.
Now, we can follow the petitioner's logic to this extent.
I can file an action for wrongful death and bring the deceased in the Court to testify he is dead we've got a conflict of evidence and it has to go to jury whether or not he's dead.
Now, that if you call cow mule, that cow is not a mule.
The -- the plaintiff testified at various times about -- dealt with so much for labor, dealt with so much for wages, but on page 26, now, here is where we come clear, the judge can't close his eyes and recognize the truth as it comes out.
I did not know that it was standing policy to Durham & Southern Railway Company that when an employee is injured on the railroad that it would pay the injured employee only upon the signing a release, that's important because the plaintiff's own witness, his labor supervisor stated that it had been a policy for forty years, this is the plaintiffs evidence.
Now I thought --
Chief Justice Earl Warren: He stated what --
Mr. Charles B. Nye: -- they were --
Chief Justice Earl Warren: -- would you -- would you mind making that last statement again, I didn't quite understand it.
Mr. Charles B. Nye: The plaintiff testified and then he put on his labor supervisor as his own witness.
On cross-examination Mr. Bailey testified that for forty years, the policy of the railroad had been that if when an employee was injured and was off from work when came back regardless of responsibility, they paid him his back wages while he was out for the consideration to sign a release, that's the plaintiff's evidence.
Chief Justice Earl Warren: The supervisor was employed by the company.
Mr. Charles B. Nye: Yes, sir, but he was a -- a labor representative, a union labor representative.
Chief Justice Earl Warren: Oh, I see.
Mr. Charles B. Nye: And he testified and my position is to be sure that the employees get a fair break.
Now, this is what the petitioner testifies about those wages.
I thought they were paying while you were out.
I mean I hadn't been discharged from the railroad.
I just wasn't able to work.
I have never been discharged.
I expected wages when I was not working because I just figured it was mine.
I have never been discharged form the railroad and was just off because I was hurt.
Now, is he due those wages because of labor?
Now is he playing words, the facts are he was out four or five days.
The -- the railroad gave him the equivalent salary and he signed the release.
Now, that's your consideration, now, when one reads this record, it is inconceivable to me that you could come up with a theory that that was due for labor, he referred to it as labor, he referred to this wages, But there again, is cow a mule because you refer it back and forth, the truth came out of this.
Chief Justice Earl Warren: Well, did the -- did the supervisor say that this man knew of that policy?
Mr. Charles B. Nye: No sir, he did not.
Chief Justice Earl Warren: He did not.
Mr. Charles B. Nye: No, sir.
Chief Justice Earl Warren: Well --
Mr. Charles B. Nye: The man had worked for the sea board for nine years, Your Honor before he came on the Government and he was an apprentice foreman.
He was educated, he was -- went through 10th grade and it -- in reference to the check, he testified that it was a different place from where I usually sign for my check, that's his regular word.
He testified that he usually didn't sign things without looking at them, but just on the question of consideration, it is my opinion that one can read the entire record and state that he'd labored for these wages.
It was equivalent of -- of what he would receive had he worked.
Chief Justice Earl Warren: There was a rather (Inaudible), was that for a given number of days?
Mr. Charles B. Nye: Your Honor, he was out --
Chief Justice Earl Warren: (Inaudible) prevented that --
Mr. Charles B. Nye: -- he stopped -- yes, sir.
Chief Justice Earl Warren: It was for --
Mr. Charles B. Nye: Yes sir.
Chief Justice Earl Warren: -- an equivalent of a given number of days.
Mr. Charles B. Nye: Now, just as the side remark, the petitioner in his brief stated that Saturday was a normal work day.
The only evidence is that said, it's not a normal work day.
That's -- that's what the record says.
Justice William J. Brennan: Well, your point I gather is this, even -- for its time off he would not have been paid any wages compensation.
Mr. Charles B. Nye: Yes, sir and that's what (Voice Overlap) --
Justice William J. Brennan: But that --
Mr. Charles B. Nye: -- the Supreme Court of North Carolina.
Justice William J. Brennan: -- but that -- in order to give him that -- that he would execute a release, the company was willing to pay him the equivalent of what would have been his wages if he had worked.
Mr. Charles B. Nye: Yes, sir.
Now, I think it's very important just to get --
Justice William J. Brennan: And you're pointing this out as an effect that admission of his is that is --
Mr. Charles B. Nye: What -- he act -- cannot read otherwise.
He -- he says, “I didn't know that it was policy.”
But he says, “I didn't work, I just felt was doing --
Justice William J. Brennan: Well, he also says that -- still that I -- I thought they were paying you while you were out.
In other words, he's taking the position that -- his understanding was that even though he was off hurt, he'd be compensated for this time -- at the wages he would have received, had been working here?
Mr. Charles B. Nye: That is right.
But his own witness, the next witness testified as to 40-year policy, that when the railroad's witness.
Chief Justice Earl Warren: But his own witness didn't testify that he knew the policy, isn't there a difference?
Mr. Charles B. Nye: This is based on fraud, Your Honor, not -- not mistake.
Now, you paid alleged the state.
Instead of the vicious (Inaudible) they did, that we might not be here, but they didn't allege mistake.
They didn't offer any evidence concerning mistake.
That brings us up to the next point.
Justice William J. Brennan: But we were not on the fraud issue in the colloquy you and I have had, we're talking only that federal consideration, lack of consideration.
Mr. Charles B. Nye: Well, the question -- I don't think --
Justice William J. Brennan: Well, aren't the questions here, one is fraud and the other is lack of consideration.
Mr. Charles B. Nye: The other one is no consideration.
Justice William J. Brennan: No consideration, alright.
Mr. Charles B. Nye: Which is a big difference in the -- in the period of the State --
Justice William J. Brennan: Yes, but they're separate issues as I understand.
Mr. Charles B. Nye: Yes, sir.
Justice William J. Brennan: And (Voice Overlap) --
Mr. Charles B. Nye: They tried to set aside.
Justice William J. Brennan: And either should have gone to the jury, then the Supreme Court of North Carolina was in error was it?
Mr. Charles B. Nye: That's right, sir.
Well, the first point I show that there are about a little bit of consideration, by then very small related portion on that, they said no consideration.
The next part, execution of the so-called release procured by fraud, misrepresentations and undue influence on the part of the defendant's agents, required submission of the jury and here's your evidence in that respect, page 25 of the record.
Now, there were two estimates executed, he was hurt on August 27th, so he says then on August 23rd, there was accident report signed by the petitioner and he was referring on page 25 the accident report.
It states on here that I would probably have no disability, that none were expected.
I didn't expect much disability at that time.
I didn't know how bad my disability was at that time.
I didn't expect any permanent disability.
I just thought it was a mild back sprain and that I would get over in a few weeks or a month.
When, I signed it with the answer to the problem of disability, "I mean it at that time," that was just a few days before the release.
At the time I filled out that accident report, I had no idea I would ever get the lawsuit back.
Now, just a few days later, he signs a release, an evidence concerning that.
Now -- now, the evidence shows that this accident report which was signed in Apex, North Carolina where he says, no disability, everything was held properly, were set to McAllister in Durham, North Carolina, a few days before the petitioner went to Durham and signed this release.
The evidence is that McAllister knew nothing about the accident, nothing about the facts, except what was set forth in that accident report signed by Maynard which he says, “When I signed it, I didn't think I'll be hurting.”
So, on page 31, we were talking about the day he signed the release, I do not know what I -- I did not know what I'm signing that day.
I did not have any curiosity about it.
I thought I was just signing for my check.
I just assumed that's what I was doing.
It was at a different place from where I usually signed for my check.
I haven't -- then he goes back to personnel injury report.
I admit signing the personnel injury report, but I don't remember when or what time to sign, I couldn't say.
If I knew what the personnel injury report was at the time signed it, but I'd usually don't sign papers not knowing what they are.
Now, we get back to the release, this fellow, they say was used duress and fraud.
Mr. McAllister didn't tell me anything about it, he didn't tell me a story about it, all he did was ask me how or was on that particular day.
I don't know how -- I didn't know how long in the future, I still thought it was temporary.
What was there from Mr. McAllister to defraud him about?
Mr. McAllister didn't know the things that what he put on the -- on the accident report.
And -- and certainly, if the plaintiff himself thought it was temporary, there was nothing for under defraud and there was nothing for McAllister to make a -- misrepresentation about at that time.
That could have been a mutual mistake.
We're not here on mutual mistake.
At that time I didn't know what it was -- that I was signing or wouldn't sign it, he did testify that.
At that time Mr. McAllister didn't know what disability might be in the future from my injury.
He didn't make any false misrepresentation.
The only thing he did do there, he just didn't explain the paper to me.
He didn't make any deceitful suggestions to me.
He didn't make any fraudulent suggestions to me.
He just put the paper down there and I signed it and got my check and left.
I didn't think I was going to be pertinent in the future.
What was there to misrepresent this man who was an apprentice foreman, who would had been on the railroad for 9 or 10 or 11 years, who the record shows, talked to his union representative before he filed the accident report and knew all their in his negotiations went through his labor representatives.
The trial judge heard the evidence, he nonsuited.
The Supreme Court of North Carolina fully and fairly recognized each and every question presented to it.
And I state that there was only one question before this Court.
And my question was this, the question for determination is whether or not, the plaintiff's evidence, in supporting his -- allegations that the release was without consideration and rather procured by means of fraud and duress was sufficient the warrant its submission to the jury.
I quoted the only question before this Court from page 55 of the record which is a quote from the decision of the North Carolina Supreme Court.
Now, what the Supreme Court, it recognized both of those.
There is no evidence in the record before us to support the contention of plaintiff that he was entitled as a matter of right to the $144.60 as wages for the time he did not work because of his alleged injuries.
Therefore, unless the release was procured by fraud and duress as alleged in plaintiff's reply to the appropriate matter pleading in defendants answer, the judgement of nonsuit entered in the court below must be upheld.
As the Supreme Court of North Carolina construes the evidence, he does not show any fraud or duress on the part of defendant or its agency.
But on the contrary, his own testimony negates his allegations in that respect.
In our opinion the plaintiff and defendant entered into the release in good faith, neither party at time of the execution of the release, had any idea to the plaintiff has sustained an injury that might or would develop into any permanent disability.
There are may have been mutual mistake on the part of plaintiff and the defendant in this respect as was alleged and relied on in Cohen versus Pennsylvania Railroad, supra.
However, in instant case, the plaintiff's cause of action is not about a mere mistake, but on fraud and duress.
In the light of the record before us in the applicable decisions bearing thereon, we are constrained to hold that the ruling of the court below must be upheld.
So that's the reason I say, “We're here arguing a motion of nonsuit.”
The record gets smaller and smaller, as it comes up in the trial court.
But the truth came out at the trial we call the cow, mule, but it was still a cow.
He referred it as labor, he referred to his wages, but the record and the plaintiff's evidence shows that it was a small consideration, it was a consideration.
They have not based his answer on -- insignificant consideration or mutual mistake.
They based their action on a very vicious reply alleging all types of fraud and duress were at the time and I repeat, there was nothing for McAllister in this representation.
Chief Justice Earl Warren: Mr. Blanchard, you may continue.
Rebuttal of Charles F. Blanchard
Mr. Charles F. Blanchard: In respect to $144.60 which the petitioner states was due him, the defendant railroad, never offered any evidence to the effect that petitioner was not entitled to the $144.60.
There our main witness, Mr. McAllister, never testified that the man was not due $144.60 for labor.
All the General Manager testified to about this, was that he told the petitioner, “It would be necessary for him sign a release before settling up.”
So, you --
Justice William O. Douglas: -- where are you reading?
Mr. Charles F. Blanchard: Record 45, Your Honor.
So you would think that if a -- they -- are we really going to make a lot about this $144.60 not being used to the petitioner, they would put on some evidence themselves.
Now, in respect to our own witness, what he had to say about the policy of the railroad.
I want to say first this that there is no evidence that the petitioner ever knew about any so-called policy or that this witness ever informed the petitioner about this so-called policy.
All that that witness which has been referred to and testified to him, was that -- was on page 34 as follows.
I know that the policy of the company that -- was that, when anyone had been off and had come back to work, they did not get their wages unless they sign the release.
I knew that -- I knew that was the policy of the Durham & Southern Railway Company, ever since I have known anything about it.
That is, you don't get your wages when you have been off from work, unless you sign a release, didn't say anything about injuries there, but then it goes down to next paragraph as so, likewise if a man is injured he is called upon to sign a release when he gets his money.
Never -- this witness which they tried to establish the policy of that, never said that this release is required.
He uses the word, is called upon.
That I think is synonymous with asked to sign a release, but even that witness which they may so much to do about, never said that it was necessary to sign a release before getting his money.
And finally, we say that the North Carolina Supreme Court never considered the subject of lack of consideration -- of -- of total lack of consideration.
No way in the decision can I see that -- that point was even considered by the court and we say that there in particular, did they ignore the federal authorities in never discussing the complete lack of consideration.
They did discuss inadequacy of consideration at some -- at some length and cited particularly, the (Inaudible) and Williams cases, the two state intermediate cases, which dealt entirely within adequacy of consideration.
Justice Hugo L. Black: May I ask you a question about your pleadings, I don't quite understand.
The defendants pleaded the release, that's an amendment under your procedures.
You filed something which you called a reply, that's what you only call a replication?
You call it a replication in North Carolina?
Mr. Charles F. Blanchard: Yes, Your Honor.
Justice Hugo L. Black: In that -- in paragraph 4 of your replication, you said that the amount paid was not far a release for damages but was for wages due.
What followed there -- what pleading followed that in the court?
Mr. Charles F. Blanchard: Your Honor --
Justice Hugo L. Black: -- with reference to that point?
Mr. Charles F. Blanchard: I -- I do not believe further pleadings were filed following a reply, I'm sure they were not.
Justice Hugo L. Black: This raises the issue as to whether or not that was for payment, for the injury or payment for wages that is this replication for?
Mr. Charles F. Blanchard: That's our opinion, yes, sir.
Justice Hugo L. Black: And put -- well that's what it says, that's what you charge.
That -- did that become an issue or was it necessary for them on the old pleadings to deny that, if they wanted to deny it, I don't know.
Mr. Charles F. Blanchard: I think, Your Honor, it's deemed denied.
Justice Hugo L. Black: It's deemed denied by being (Inaudible)
Mr. Charles F. Blanchard: Yes.
Justice Hugo L. Black: Then did they offer any evidence on that point as to the wages that was due him, was there any offer?
Mr. Charles F. Blanchard: Your Honor, we --
Justice Hugo L. Black: He pointed to some which he thought raised that point by (Voice Overlap) --
Mr. Charles F. Blanchard: He pointed to our own witnesses on cross-examination and is called by name of Bailey, but they themselves, never offered any evidence that the wages were not due to this petitioner.
Justice Hugo L. Black: What he referred to and what you have referred to is the total relevant evidence on that point?
Mr. Charles F. Blanchard: In -- in my opinion, yes, Justice Black.
Justice Charles E. Whittaker: As I understand there was (Inaudible) there's no dispute about it as having been paid for all wages up to the time he got (Inaudible).
The issue is that whether or not, he is entitled to the wages from the time he was injured, he was trying to sign this release, is that it?
Mr. Charles F. Blanchard: Yes, sir.
Justice Hugo L. Black: But is there any evidence beside here that much you had with reference to what was the policy of the company when men were off injured to whether they could pay them.
Mr. Charles F. Blanchard: Justice Black the only thing about that was the evidence of - of dues from my own witness Bailey and they never offered any evidence about the policy of the railroad, but I used Bailey to show what the policy was about a man when he was off, but they did not specify about a man who was injured.
Now, being off, that could apply to somebody who just quit or decided did -- did not want to work for two or three weeks, but that was the only thing -- Bailey was the only witness to discuss that point and he was the petitioner's witness.
Justice Hugo L. Black: He was -- you mean (Voice Overlap) --
Mr. Charles F. Blanchard: Well he was petitioner's witness and they took him on cross-examination to establish what the so-called policy was, but never offered any evidence themselves on that point.