# Appendix — United Transportation Union v. State Bar of Michigan > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0256%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1971 - **Citation:** 401 U.S. 576 ## Text INDEX PaGE CE SE aac cc concen wkdecwnscnees 1 Bill of Complaint, Filed Jan. 28, 1959 .............. 5 Answer to Bill of Complaint, Filed June 9, 1959 .... 12 Plaintiff's Reply to Defendants’ Answer, Filed June SE chien wake buhdSsubel@eCisbaicaxackék cass 20 Plaintiff’s Statement of Claim, Filed April 11, 1961 .. 29 Pretrial Summary by the Court, Filed April 11, 1961 30 Concise Statement of Defense, Filed April 12, 1961 .. 31 Transcript of Testimony, had on June 27, 1961 ...... 34 Testimony of David J. Walsh, witness on behalf of plaintiff: ee Le ae ks et wer 62 OEE TLE TCO TEC CTT TT 89 I I nck cn ansasesasenas tence 105 Decision, Filed September 12, 1962 ................ 109 Decree, Filed September 14, 1962 .................. 113 Claim of Appeal by Defendants and Proof of Service, ee ns ches aabe tans 118 Plaintiffs Exhibit 1—Illinois Motion for Leave to File Petition for Declaratory Judgment .......... 120 Plaintiff’s Exhibit 2—Illinois Petition for Court’s In- structions as to Representation of Brotherhood OE TP ID nn kan accncnnccacdceacaccas 137 Plaintiff's Exhibit 4—FELA Settlements by Michigan Residents reported 1953-1955 .................00. 155 Plaintiff's Exhibit 6—-FELA Settlements by Michigan Residents reported 1955 ........... cece e ees 157 Fe PPPS AR IY TENG FRE BG ted Pile SBE pt Ns iM BN Sibel ae RIGS Salen NO DEAD MY OPAL S AE 2 oi Nish k oe ~~ ; q ’ % % BY ¥ i SS = 3 4 Le Plaintiff's Exhibit S—FELA Settlements by Michigan Residents reported 1956 ................0000.... 159 Plaintiff's Exhibit 10—FELA Settlements by Michi- gan Residents reported 1957 .................... 161 Plaiitiff’s Exhibit 12—FELA Settlements by Michi- gan Residents reported 1958 .................... 163 Plaintiff's Exhibit 14—FELA Settlements by Michi- gan Residents reported 1959 .................... 165 Plaintiffs Exhibit 16—FELA Settlements by Mich- igan Residents reported 1960 .................... 167 Plaintif’s Exhibit 17—FELA Settlements by Michi- gan Residents reported 1960 .................... 168 Plaintiff’s Exhibit 19—Directory of the Grand Lodge and Subordinate Lodges of the Brotherhood of Railroad Trainmen POT, POND oan icccncanass 169 Remittitur from Michigan Supreme Court, Filed Jan. MN Seewinniawanaudekeyserinsin ce 170 Motion for Further Proceedings, Filed Jan. 20, 1965 172 Opinion and Order of Circuit Court for the County of Jackson, Filed May 24, 1968 .................... 173 Judgment, Filed May 27, 1968 .................... 176 Claim of Appeal, Filed June We SE uuetcecavcexes 177 Transcript of Proceedings had on Feb. d, 1965, Filed NN OM neces vereriee cute ee 178 Transcript of Proceedings had on May 3, 1968 ...... 186 Majority Opinion with Appendix; and Minority Opin- ion by State of Michigan Supreme Court, March a Mii Le TEE TT te Tot ee Han 205 Judgment by State of Michigan Supreme Court, ccconsimadie Messanctt Cer ON OLCOTT OTe Feats ea ena ae 220 APPENDIX IN THE Supreme Court of the United States OCTOBER TERM, 1970 No. 434 UNITED TRANSPORTATION UNION, Petitioner, US. THE STATE BAR OF MICHIGAN, Respondent. ON WRIT OF CERTIORARI TO THE SUPREME COURT OF MICHIGAN CHRONOLOGICAL LIST OF RELEVANT DOCKET ENTRIES [18]* CIRCUIT COURT CALENDAR ENTRLES 1959 Jan. 28. Bill of complaint filed. June 9. Answer to bill of complaint filed. June 16. Plaintiff’s reply to defendant’s answer, filed. Nov. 17. Interrogatories filed. Nov. 25. Proof of service filed. *Numbers in brackets at the outer edges refer to the pages of the certified record. i | § = June 27. 1962 Apr. 30. Apr. 30. Answers of William Kennedy, president, Brotherhood of Railroad Trainmen, to plain- tiff’s interrogatories. Order and notice of pre-trial conference filed. Stipulation filed. Plaintiffs statement of claim filed. Pre-trial summary by the court filed. Concise statement of defense filed. Order filed. Clerk’s notice filed. Exhibits filed (listed on summary sheet). Motion to strike proceedings made in plain- tiff’s reply brief filed. Answer to motion to strike filed. Brief for plaintiff filed. Brief for defendants filed. Reply brief for plaintiff. Decision filed. Decree filed and entered. Clerk’s notice filed. Appealed to Supreme Court, docket 2, page 138. Decree enrolled. SUPREME COURT CALENDAR ENTRIES 1962 Oct. 2. Claim of appeal by defendants and proof of service filed. Oct. 4. Notice of filing appeal and payment of appeal fee filed. Dec. 28. Stipulation and Order extending time filed. 1963 Oct. 3. Certified to Supreme Court. [20] 1965 Jan. 22. Remittitur from Supreme Court reversing Judgment and remanding to the Court be- low, filed. CIRCUIT COURT CALENDAR ENTRIES 1965 Jan. 20. Motion for further proceedings in Circuit Court on remand from Supreme Court, no- tice of hearing and proof of service filed and entered, and order. June 9. Motion to Dismiss certain defendants and aff- davit filed. 1968 April 22. Motion for judgment and notice of hearing filed. May 24. Motion for dismiss a certain defendant and affidavit filed. May 24. Notice of calling up motion for decision with exhibits filed. ianihiedes ieaeaeadeeinnter a. | STE AT ita te paiticiaterssisiessnn Ree if 4 May 24. Notice of calling up motion for decision filed. May 24. Qpinion and order filed. May 27. Judgment (Amending decree) filed and en- tered. May 27. Clerk’s notice filed. June 17. Claim of appeal filed, A1-75. COURT OF APPEALS DOCKET ENTRIES 1968 June 17. Claim of appeal, notice, proof of service filed. June 17. Certificate of court reporter filed. Sept. 16. Remittitur from Supreme Court granting ap- plication by defendants for leave to appeal prior to decision by the Court of Appeals is considered filed. Oct. Notice of filing transcript of record filed. Oct. Transcript of testimony filed. Oct. 4. Affidavit filed. > >» (1) SUPREME COURT CALENDAR ENTRIES 1968 July 11. Application filed (by pass). Sept. 12. Application granted. 1969 Oct. 29. Circuit Court records filed. Oct. 29. Notice for December filed. Dee. 9. Argued and submitted. 1970 Mar. 9. Affirmed. No cost. Mar. 27. Application for rehearing filed. May 4. Ordered rehearing denied. June 10. Record certified to Supreme Court of U.S. IN THE CIRCUIT COURT FOR THE COUNTY OF JACKSON THE STATE BAR OF MICHIGAN, ) vs. r No. T—640 THE BROTHERHOOD OF RAILROAD TRAINMEN, p BILL OF COMPLAINT (Filed January 28, 1959) The State Bar of Michigan respectfully represents unto this Honorable Court: 1. That it is a public body corporate, charged with the duty to aid in promoting improvements in the ad- ministration of justice and advancements in jurisprud- ence, in improving relations between the legal profession and the public, and in promoting the interests of the legal profession in the State of Michigan. 2. That the Brotherhood of Railroad Trainmen is a national railway labor organization, with principal office in Cleveland, Ohio, but having branches, members, of- ficers and agents throughout the United States, including the State of Michigan. 3. That Frank J. Carr and L. M. Hasbrouck, of Jack- son, Raymond Fieberkorn and Thomas W. Fletcher, of Detroit, W. C. Coryell, of Okemos, L. E. Singer of Plymouth, E. V. Surdam of Grand Rapids, H. F. MeCall of Birmingham, R. J. Johnson, and L. A. Russell, of Durand, A. V. Grandstaff, of Dearborn, W. T. Ellsworth, Be i Sin IL ahs Sane 2) tySB DP Sears OA te BO > whens 6 of Allen Park, R. J. Snow, of Melvindale, and William E. B. Chase, of Livonia, are members, officers and agents of defendant Brotherhood of Railroad Trainmen resid- ing within the State of Michigan, and that there are other members, officers and agents of said defendant Brotherhood of Railroad Trainmen, within the State of Michigan, constituting a class so numerous as to make it impracticable to bring them all before the court, as [22] to all of whom there are common questions of law and fact affecting their several rights and against all of whom a common relief is sought, as hereinafter shown. 4. That, in or about the year 1930, the Brotherhood of Railroad Trainmen organized and established a so- called “Legal Aid Department” as a division of said Brotherhood of Railroad Trainmen, representing, as rea- sons for organizing said Legal Aid Department, the fol- lowing: Many lawyers frequently abuse the confidence of their clients by effecting low settlements in the case in order to obtain a higher settlement in some other case against the same railroad; incompetently pre- paring and processing such cases upon the law or the facts; not fully and fairly explaining to the client the terms of the employment, so that the client, after having assented to settlement, finds the proceeds thereof surcharged with items for expenses of liti- gation, medical expenses, expenses of one sort and another or the like, which are not legitimate, or if legitimate, were not explained to him before the set- tlement was concluded, as well as in other ways. Adequate compensation cannot in general be ex- acted if members of the Brotherhood are persuaded [23] 7 by claim agents either to settle their own claims or to place them in the hands of incompetent, inexperi- enced or otherwise inadequate counsel. In 1930, A. F. Whitney, then President of the Brotherhood, in a public utterance to the Brother- hood’s membership, declared that in his several years experience as an officer of the Brotherhood it had come to his attention that members who had been killed while engaged in railroad service had fared rather badly at the hands of railroad claim agents in some instances, as well as at the hands of so-called ambulance-chasing lawyers, and that settle- ments wholly inadequate in the light of the serious- ness of the injuries and the responsibility of the employers had been made with members of the Brotherhood who were either entirely devoid of their rights in such matters or who had been induced to make cheap settlements by misrepresentations in- dulged in by those who sought to effectuate these settlements. 5. Plaintiff is informed and believes, and therefore alleges as true, that the Constitution and By-laws of the defendant Brotherhood of Railroad Trainmen require, and the so-called Legal Aid Department of said Brother- hood of Railroad Trainmen has, ever since its formation, by and through its members, officers and agents, pursued and continues to pursue and engage in a well-organized and systematized solicitation, for so-called Regional Coun- sel, of claims and/or causes of action for personal injuries and/or death of railroad employees arising under the Federal Employers Liability Act, using the methods and practices, as follows: — DD OPER ENG RAVE PRG Ba Cm aoe en AY Tied, ae PEGA, | ee ee ale O a Mle het od 8 A member representative of the Brotherhood, usu- ually the Chairman of the Grievance Committee in the locale of the accident, calls upon the injured em- ployee or his bereaved family, and not only explains to them that they can, but recommends and urges [24] that they do consult with the Regional Counsel, and such representative urges said employees or sur. vivors of the deceased employees not only to consult, but to retain Regional Counsel. Such employees or survivors of deceased employees are told that Reg- ional Counsel will not charge in excess of 25 per cent (25°) of the amount of any recovery, whether re- covery be affected by suit or settlement, and that this percentage will include expenses incidental to the investigation and any litigation of the claim. 6. Plaintiff is furtner informed and believes, and therefore alleges as true, that representatives of the Brotherhood of Railroad Trainmen are reimbursed for their time in bringing injured employees or the survivors of the deceased employees to the offices of the Regional Counsel. Reimbursement is at the member representative's hourly rate of pay on the railread. Member representa- tives are also reimbursed for any out-of-pocket expenses incurred in bringing injured employees or the survivors of deceased employees to Regional Counsel. 7. Regional Counsel referred to above are the atvorneys selected by the defendant Brotherhood of Railroad Train- men, in some fifteen “regions” designated by said de- fendant to receive, through the methods and practices aforesaid, all Federal Employers Liability Act cases aris- ing in their designated regions. 9 8. The Lower Peninsula of the State of Michigan, is the “region” of one Edward B. Henslee, an attorney, of Chicago, Illinois, and his associates, for whom de- (25) fendants, or some of them, actively solicit, by the methods herein outlined, all cases of personal injury or death of railroad employees occurring in the State of Michigan, as plaintiff is informed and believes and thereupon alleges as true. 9. Plaintiff further shows unto the Court, on informa- tion and belief, that, by and through the operations of the Legal Aid Department of the Brotherhood of Rail- road Trainmen in the State of Michigan, large numbers of cases and claims of members of the Brotherhood of Railroad Trainmen residing in Michigan and whose claims have arisen within the State of Michigan, have been unlawfuly and improperly solicited by said Brother- hood of Railroad Trainmen Legal Aid Department, through its members, agents and officers, and have been directed into and handled by the office of Regional Coun- sel Henslee and associates in Chicago, Illinois and else- where, to the extent that a majority of such cases are so solicited and so handled. 10. That such solicitation, on an organized and sys- tematized basis, interferes with and impedes the orderly administration of justice, adversely affects the relation- ship between the legal profession in the State of Michi- gan and the public, and causes, and threatens to cause, irreparable damages to property rights of the public and the legal profession in the State of Michigan. 11. Plaintiff further alleges that the methods of op- eration of the Legal Aid Department of the Brother- Vie 10 hood of Railroad Trainmen, as set forth above, violaie the Penal Code of the State of Michigan, particularly Section 410 theivof, being Section 28.642 of Michigan Statutes Annotated, which provides in part as follows: PASS GET cath Meech [26] Leach, Zs “Any person, firm, co-partnership, association or organization of any kind, either incorporated or unincorporated, or any of the officers, agents, serv- ants, employees, or members of any such person, firm, : co-partnership association or organization of any : kind, either incorporated or unincorporated, or of ; any division, bureau or committee of such associa- tion or organization, either incorporated or uncor- : porated, who shall directly or indirectly, individually, or by agent, servant, employee or member, solicit any person injured as the result of an accident, his administrator, executor, heirs or assigns, his guard- ian, or members of the family of the injured person, for the purpose of representing such person in mak- ing claim for damages or prosecuting any action or causes of action arising out of any personal injury claim against any other person, firm or corporation, or to employ counsel for the purpose of such solici- tation, shall be guilty of a misdemeanor * * *”, aOR 12. The matter in dispute in this case exceeds the sum of One Hundred and No/100 ($100.00) Dollars. : Wherefore, the premises being considered and plaintiff being without adequate remedy at law, the plaintiff ; prays: § (a) That the named defendants be required to an- ’ swer this bill of complaint, paragraph by paragraph, on their oaths. 11 (b) That, on the hearing of this cause, all named de- fendants, and all other defendants of this class, members, [27] agents and officers of the Brotherhood of Railroad Train- men, be permanently enjoined from, directly or indirectly, engaging in the solicitation, in the State of Michigan, of claims and/or causes of action under the Federal Employ- ers Liability Act, for the purpose of causing persons hav- ing such claims and/or representatives, to retain said Ed- ward B. Henslee, and associates, or any other of the Reg- ional Counsel of defendant Brotherhood of Railroad Train- men, or any other attorney or attorneys, or firm of attor- neys, in the prosecution and/or negotiation for settle- ment of such claims and/or causes of action. (c) And that plaintiff may have such other and such further relief as equity and good conscience shall require, and as to this Honorable Court seems just. /s/ State Bar of Michigan, By Philip C. Kelly, /s/ J. Cameron Hall, General Counsel, State Bar of Michigan, /s/ Philip C. Kelly, 301-4 Reynolds Building, Jackson, Michigan, /s/ J. Cameron Hall, 1323 Dime Building, Detroit, Michigan, Attorneys for Plaintiff. [28] (Jurats omitted in printing) 8 iid bt 10 Sy Rew a ae nate Dear stcsscisssticn: Se Sch guticer ANSWER TO BILL OF COMPLAINT (Filed June 9, 1959) Now comes the defendants by Edward B. Henslee, Jr., Martin K. Henslee, John J. Naughton and Arthur Lum- ley, their attorneys, and for answer to the bill of com- plaint say: 1. Defendants admit the allegations of paragraph one and two of the bill of complaint. 2. Defendants admit that they are members, officers and agents of defendant Brotherhood of Railroad Train- men (hereinafter called Trainmen) residing within the State of Michigan and further admit that there are others in like capacity within the State. Defendants deny all other allegations in paragraph 3. 3. Defendants admit that in the year 1930 the Train- men organized and established a department of the Train- men designated as the “Legal Aid Department.” Defend- ants admit that the representations alleged were stated, along with other representations, as factors to be consid- ered in deciding whether a legal aid department should be established. Defendants deny all other allegations of paragraph four of the bill of complaint. Defendants aver that on a referendum questionnaire and ballot in 1930, the members of the lodges of the Trainmen in the United States voted by a majority vote of eleven to one that a legal aid department should be organized. Defendants further aver that the said Legal Aid De- partment was thereupon organized as a part of or de- SRR YVR Ona ete Be, 13 [30] partment of the defendant Trainmen and, as constituted, was directly subject to the provisions of the Constitution of the Trainmen and to the authority of the president of the Trainmen. Defendants further aver that the title of the said Legal Aid Department was changed by order of the president of the Trainmen on or about January 1, 1959 and «>: redesignated as the “Department of Legal Counsel”. § fendants aver that the title of the attorneys designaw« for the several regions was at the same time changed from “Regional Counsel” to their present designation as “Legal Counsel.” 4. Defendants deny each and every allegation con- tained in paragraph five of the bill of complaint. Defendants aver that in many cases, but not in all, a member of the defendant Trainmen calls upon, contacts, or in some other manner explains to an injured member employee, or his bereaved family, the advisability of ob- taining a lawyer, or the opinion of a lawyer, and recom- mends that they consult with the Legal Counsel desig- nated, and further recommends that the Legal Counsel be retained if a lawyer is to be retained. Defendants further aver that some of the said members have repre- sented, as was the fact in most cases arising in the Lower Peninsula of the State of Michigan, that the legal coun- sel will not charge in excess of twenty-five percent (25%) of the amount of any recovery whether the recovery be affected by suit or settlement, and that this percentage would include expenses incidental to the investigation and any litigation of the claim. Defendants further aver that this representation of the fee charged has been eliminated by order of the president of the Trainmen contained in his letter to all lodges dat- eo : . - > PRN UAC ReneS ENED AT RR ah BURRS ERS 2a ere een “4 Sih 2 Biber wea De YS AES NE BEB My AE FES gia DURE PISS: + 14 [31] ed March 16, 1959, effective April 1, 1959, hereinafter set out in the First Affirmative Defense to this answer. 5. Defendants admit the allegations of paragraph six of the bill of complaint as being in existence up to and including the 3lst day of March, A. D. 1959. Defendants further aver that the said compensation and reimbursement has been terminated under the prev- iously mentioned order of the president of the Trainmen dated March 16, 1959. 6. Defendants deny each and every allegafion of para- graph seven of the bill of complaint. r Legal Counsel referred to above are attofneys desig- nated by the defendant Trainmen in some #venteen re- gions designated by the said defendant as a orneys rec- ommended for their qualifications and their hintegrity to be competent to prosecute claims arising under the Fed- eral Employer’s Liability Act for members of the Train- men in their designated regions. 7. Defendants deny all of the allegations of para- graph eight of the bill of complaint except that they ad- mit the Kdward B. Henslee referred to at one time was the Regional Counsel for a region ineluding the Lower Peninsula of the State of Michigan and that he had as- sociates. Defendants further aver that the said Edward B. Henslee died on November 22, 1958. 8. Defendants deny each and every allegation of para- graphs, nine, ten and eleven of the bill of complaint. 9. Answering paragraph twelve of the bill of com- plaint, defendants deny each and every allegation con- tained therein and specifically and particularly deny that [32] the plaintiff is entitled to any of the relief for which it prays. First AFFIRMATIVE DrFENSE For their First Affirmative Defense, defendants aver that defendant trainmen petitioned the Supreme Court of the State of Illinois for a declaratory judgment request- ing that the Court rule that the conduct of trainmen and the operation of its Legal Aid Department, and the con- duct of the attorneys who serve as its Regional Coun- sel was neither illegal nor unprofessional. Hearings were held before the Honorable Charles H. Thompson, a former judge of the Supreme Court of IIli- nois as a special commissioner. Trainmen, the Illinois State and Chicago Bar Association, and a group of twen- ty-seven railroads appeared in the hearings by their counsel. Plaintiff herein, the State Bar of Michigan, filed charges with the Illinois State Bar Association and at- tempted to intervene in the declaratory judgment hear- ings. Evidence prepared by the plaintiff herein was pre- sented at those hearings. At the conelusion of the hearings, all parties filed briefs, and a brief was filed on behalf of the American Bar Association. The opinion of the Supreme Court of Illinois as modi- fied on denial of trainmen’s petition for rehearing is re- ported at 13 Ill. 2d 391, 150 NE 2d 163. That Court decided that certain practices of the trainmen in its op- eration of the Legal Aid Department were objectionable and should be discontinued and the Court further indi- Stes Es a Pievex: MEH, Sao ek VTE a 16 cated what trainmen could do with respect to the injury and death claims of its members. [33] In compliance with the opinion of the Supreme Court of Illinois, the president of Trainmen in a letter to all lodges and members ordered the following: “Cleveland, Ohio, March 16, 1959 To AJl Lodges and Members: The following for your information and instruction: LEGAL COUNSEL The following letter addressed by me to All Legal Counsel of the Brotherhood is self-explanatory: March 16, 1959, To All Legal Counsel, Brotherhood of Railroad Trainmen. Dear Sirs and Brothers: Some time ago, I sent you a copy of the opinion of the Supreme Court of Illinois in a ease in which the Brotherhood of Railroad Trainmen asked the Court of Illinois for a ruling as to what the Legal Aid Department of the Brotherhood can do for its injured members and the conduct that should be fol- lowed by Legal Counsel of the Brotherhood. Under date of March 20, 1958, the Supreme Court of Illinois handed down its opinion which is found in volume 13, 2nd Edition of the Illinois Supreme Court reports on page 391. In compliance with said opinion, any Legal Coun- sel who represents the Brotherhood is hereby in- structed, and required, to live up to said opinion 17 [34] in its entirety, and any violation shall be cause to remove said attorney, and the same shall be reported to the Bar Association of the particular state in which such violation may occur. The Brotherhood will finance its Legal Aid De- partment, and will investigate accidents so that it will be acquainted with the cause of said accidents, and by so doing will be able to remedy any violation of the Federal Employers’ Liability Act and The Safety Appliance Act. The result of such investiga- tion shall be made available only to the injured per- son. Please arrange to comply with these instructions on and after April 1, 1959, and acknowledge receipt of this letter by return mail. Fraternally yours, /signed/ W.P. Kennedy, President.” Wherefore these defendants pray that the bill of com- plaint be dismissed for the reason that the issues raised by the bill of complaint are moot and the said bill is de- ficient for want of equity. Seconp AFFIRMATIVE DEFENSE For their Second Affirmative Defense, defendants aver that plaintiff herein in attempting to base its bill of com- plaint on an alleged violation of the statutes of the State of Michigan is attempting to enjoin the alleged commis- sion of a crime and is patently attempting to deprive these defendants of their constitutional right to a trial by jury. | ee ERIC Ss int nes Hed 18 [35] Wherefore, these defendants pray that paragraph eleven of the bill of complaint be stricken and that any prayer for relief based thereon be dismissed for the reason that the said bill in that regard is deficient for want of equity. THIRD AFFIRMATIVE DEFENSE For their Third Affirmative Defense, defendants aver that their activities, past or present, do not infringe any statute, rule or law of the State of Michigan, do not interfere or impede the orderly administration of justice in the State of Michigan, and do not infringe the legal or property rights of any individual or group. Defendants further aver that if any of their actions could be consid- ered an offense against any of the said laws or interest, the right of the Trainmen, and the consequent right of the remaining defendants as members, officers and agents of defendant Trainmen to advise injured trainmen or their bereaved families in claims arising under the Federal Employers’ Liability Act derives directly from the Rail- way Labor Act (U.S.C.A., Title 45, Sections 151-164) and, to the extent that any statute or rule of Michigan Law might be deemed to interdict or prohibit the conduct and actions of the defendants, such statute or rule of Michi- gan law is, or would be, in conflict with the Railway Labor Act, the Interstate Commerce Clause of the Con- stitution of the United States (Article 1, Section 8) and the Supremacy Clause of the Constitution (Article VI, Clause 2). Wherefore, these defendants, having answered the bill of complaint, pray that in this respect and, in the fore- going respects, the bill of complaint should be dismissed 19 [36] for want of equity and that these defendants should be awarded their costs. Brotherhood of Railroad Trainmen, By W. E. B. Chase, Vice President Frank J. Carr L. M. Hasbrouck Raymond Fieberkorn Thomas W. Fletcher W. C. Coryell L. E. Singer EK. V. Surdam H. F. MeCall R. J. Johnson L. A. Russel William EF. B. Chase, Individually A. V. Grandstaff W. T. Ellsworth R. J. Snow Defendants Edward B. Henslee, Jr., Martin K. Henslee, and John J. Naughton 139 N. Clark Street, Chicago 2, Illinois and Arthur Lumley 1512 Dime Building, Detroit, Michigan, Attorneys for Defendants. [37-39] (Jurats omitted in printing) Peiiccerteiniiini cnsnat ant ited a [40] PLAINTIFF'S REPLY TO DEFENDANTS’ ANSWER (Filed June 16, 1959) Now comes the State Bar of Michigan, plaintiff here- in, by way of reply to the answer of the defendants here- in and shows unto the Court as follows: 1. Replying to the affirmative allegations contained in the second, third and fourth paragraphs of paragraph 3 of the answer herein, this plaintiff is without information sufficient to form a belief with respect thereto and hence, neither admits nor denies the same but leaves the defend- ants to their proofs thereof. 2. Replying to paragraph 4 thereof, the plaintiff shows that the defendants and each of them are precluded from denying the contents of the sub-paragraph under para- graph 5 of the bill of complaint, by reason of the admis- sions on behalf of the defendant Brotherhood and the find- ings of fact in a proceeding in the Supreme Court of the State of Ilinois, to which proceeding and opinion refer- ence is made at the top of page 6 in the defendant's an- swer, with reference to the matter of an investigation as to the practices of the Brotherhood of Railroad Train- men, ete, 18 Hlinois 2nd, 391. 150 Northeastern 2nd, 163. Replying to the second paragraph under paragraph 4 of the defendants’ answer, the plaintiff shows that the ad- missions by the defendants therein set forth constitute solicitation of claims within the Sate of Michigan by the defendants or by part or all of the defendants and by the defendant Brotherhood, on behalf of the Regional Counsel or Legal Counsel of the defendant Brotherhood. 21 (41) Replying to the third paragraph under paragraph 4 of the defendants’ answer, the plaintiff shows that: (a) The alleged order by the President of the defendant Brotherhood dated March 16, 1959 is al- leged by the defendants in this paragraph to apply to the representation as to the fee to be charged by the Brotherhood’s Regional Counsel or Legal Coun- sel and does not cover the many other courses of con- duct which are the subject of this cause. (b) There is no assurance that each and all of the members of the defendant Brotherhood will comply with the terms of such orders as may be issued by the President of the defendant Brotherhood. (c) There is no assurance that if there were an order by the President of the defendant Brother- hood as alleged, the same might not be reversed by either this or a future officer of the defendant Broth- erhood, 3. Replying to the affirmative matters set forth in par- agraph 5 of the answer, wherein the defendants admit the allegations of paragraph 6 of the Bill of Complaint up to March 31, 1959, the plaintiff shows that even if the Presi- dent of the defendant Brotherhood disseminated a com- munication dated March 16, 1959, the same does not con- stitute a defense in this cause for the reasons that: (a) Said purported communication by the Presi- dent of the defendant Brotherhood does not cover all of the matters concerned in this cause, nor is it al- leged to cover all the matters of conduct concerned in this cause. AP Cn celia ice tea ae ie hid Sdtgeds at ald IK ie ite Fhe in ‘AV abel Rese aula de (os sirens steer the members of the defendant Brotherhood will com- ply with the terms of such orders as may be issued by the President of the defendant Brotherhood. (ec) There is no assurance that if there were an order by the President of the defendant Brotherhood as alleged, the same might not be reversed by either this or a future officer of the defendant Brotherhood. 22 [42] (b) There is no assurance that each and all of ; 4. Replying to the purported denials and affirmative allegations in paragraph 6 of the defendants’ answer, the plaintiff shows that the second paragraph under para- graph 6 in effect admits the type of conduct alleged in paragraph 7 of the plaintiff’s bill of complaint. The plain- tiff further shows that the defendants are precluded from denying the conduct described in paragraph 7 of the plaintiffs’ bill of complaint by reason of the admissions of the defendant Brotherhood and opinion of the Court in said Illinois case to which reference is made at the top of page 6 of the defendants’ answer. 5. Replying to paragraph 7 thereof, with reference to the denial therein contained, the defendants are pre- cluded from denying the allegations of paragraph 8 of the plaintiff's bill of complaint by reason of the admis- sions on the part of the defendant Brotherhood and the findings of the Court in said Illinois case as described at the top of page 6 of the defendants’ answer. Further answering said paragraph, the plaintiff lacks information sufficient to form a belief with respect to the allegation that Edward B. Henslee died either on November 22, 1958 or any other date and accordingly, neither admits nor denies the same but leaves the defendants to their proofs thereof. The plaintiff further shows that the conduct with 23 [43] reference to solicitation and other matters described in the bill of complaint are applicable to whatever Regional Counsel or Legal Counsel may have been in office or as- sociated with the defendant Brotherhood as described in the bill of complaint and that the allegations of the bill of complaint with reference to said Edward B. Henslee refer to whoever acted as Regional Counsel or Legal Counsel for the defendant Brotherhood with reference to said matters described in the bill of complaint. 6. Replying to paragraph 8 of the defendants’s an- swer, the plaintiff shows that the defendants are preclud- ed from the denials as to paragraph 9, 10 and 11 of the bill of complaint by reason of admissions made by the defendant Brotherhood in said case in the Illinois Su- preme Court as cited at the top of page 6 of the defend- ants’ answer and also for the Court findings in that case. The plaintiff further shows that the defendants have failed to set forth any reason or reasons as to the denial of the existence of the statute as quoted in paragraph 11 of the bill of complaint. 7. Replying to any further affirmative allegations con- tained in said answer to which reference has not speci- fically been made, the plaintiff denies the same. Repry to First AFrirMaATIVE DEFeNsE Replying to the first affirmative defense, the plaintiff admits that the general subject matter here concerned was before the Supreme Court of the State of Illinois, along with various other matters relative to other areas, in the matter of an investigation as to the practices of the Brotherhood of Railroad Trainmen, ete. 0 ht LDL CALLEN OBS MME BE at. is Belay M RON SO MN aS ERR pilot ES Sal Pesterciinimcc En Ae eee 24 The plaintiff denies the first paragraph under “first af- firmative defense” and shows that said paragraph is not [44] a correct representation to this Court with reference to the contents of the opinion in said Illinois case. The plain- tiff further shows that in the opinion of of the Supreme Court of Illinois, with reference to the Brotherhood and its Regional Counsel, the Illinois Court recited that: “* * * its present practices and those of its regional counsel can- not be continued * * *”; the plaintiff further shows that the Illinois Court thereupon prescribed certain conditions and limitations on the conduct of the defendant Brother- hood. The plaintiff further shows that the conduct of the de- fendant Brotherhood and its agents has been before the Courts of several states with reference to the same or similar practices as those at issue in this cause and that the conduct described has been held to be reprehensible. The only other or further affirmative matters set forth in said purported first affirmative defense is reference to an alleged communication by the President of the defend- ant Brotherhood under date of March 16, 1959, appear- ing to instruct the membership to comply with the decree of the Supreme Court of the State of Illinois. However, the same is not a defense in this cause for the following reasons: (a) Said communication does not direct compli- ance with all the matters at issue in this cause. (b) There is no assurance that the membership of the defendant Brotherhood or the other defend- ants or any of them will in all respects comply with the terms of said alleged complication by the Presi- ie Sere — 25 dent of the defendant Brotherhood, either concurrent- ly or at all times in the future. (c) There is no assurance that the communica- tion by the President of the defendant Brotherhood, [45] as alleged, would not be reversed by this or a future officer of the defendant Brotherhood. Further replying, the plaintiff shows that the conduct at issue in this cause, and even that conduct admitted in the defendants’ answer, violates the statute in force in the State of Michigan as described in the bill of com- plaint and violates those principles effective within the State of Michigan with reference to the freedom of a claimant to select an attorney of his own choosing, with- out influence by organizations or persons in the capacity of the defendants in this cause, either by way of recom- mendation, urging the employment of particular counsel, conduct designed to secure cases for particular counsel, and otherwise. The plaintiff shows therefore that the matters in this cause are not moot and that said purported first affirma- tive defense is not applicable. Rep.iy to Seconp AFFIRMATIVE DEFENSE Replying to the purported second affirmative defense, the plaintiff denies that in the State of Michigan an in- junction against a course of conduct which constitutes the commission of a crime is unlawful or constitutes a reason fer non-issuance of such injunction. The plaintiff further shows that this cause will assist in preventing multiplicity of proceedings within the State of Michigan as to each of the various occurrences of the ES i ir DOORS Es aOR 2A OR Ee Lt, ids Net ERS Or i ee en LOSE 26 conduct concerning which complaint is made in this cause. The plaintiff further shows that the conduct concerned herein violates both the statute to which reference is [46] made in the plaintiff’s bill of complaint and also those principles in force in the State of Michigan to which ref- erence is made under the reply to the first affirmative de- fense as above set forth. The plaintiff therefore shows that paragraph 11 of the bill of complaint should not be stricken, as prayed by the defendants, and further, that said purported second affirmative defense does not constitute a defense herein. Repty to THrrp AFFIRMATIVE DEFENSE Replying to the first sentence of the purported third affirmative defense, the plaintiff denies the averments therein contained and shows that the conduct concerned herein does violate the statute to which reference is made in the bill of complaint, violates those principles de- scribed in the reply to the first affirmative defense above, violates the laws of the State of Michigan, interferes and impedes with the orderly administration of justice in the State of Michigan and does infringe upon the rights both of the claimants concerned in the cases to which refer- ence is made in these proceedings and also the rights of the plaintiff and the Courts of the State of Michigan. Replying to the second sentence of the third affirmative defense, the plaintiff denies the conclusions therein con- tained. Further answering said second sentence of the pur- ported third affirmative defense, the plaintiff shows that the reference therein made to the Federal Employers’ -_- 27 Liability Act as derived from the Railway Labor Act, cited by the defendants as United States Code Annotated, Title 45, Sections 151 through 164, is an erroneous citation to this Court. The plaintiff shows that said Sections 151 | [47] | through 164 as cited by the defendants, deal with “rates of pay, rules and working conditions” as repeatedly de- scribed in those sections of said Federal Statute. The plaintiff further shows that the defendants were and are well aware that the citation of those sections to this Court are not a defense of the conduct at issue in this cause for in said opinion of the Illinois Supreme Court as cited in the defendants’ answer, the Illinois Court set forth that: “The Brotherhood defends its practices on legal grounds, and also argues that they are justified by policy considerations. As a matter of law it argues that its method of handling the personal injury and death claims of its members is permissible because under the Railway Labor Act the Brotherhood is au- thorized to represent its members, before the Na- tional Railroad Adjustment Board or other appropri- ate tribunals, in the processing of ‘disputes grow- ing out of grievances.’ (45 U.S.C. 152). But these injury and death claims are not the kind of labor dis- putes that the statute contemplates. We find nothing to suggest that Congress intended by the Railway Labor Act, any more than by the Labor Manage- ment Relations Act, (29 U.S.C. 141) to overthrow State regulation of the legal profession and the un- authorized practice of the law.” F BA | 2 28 Further replying, the plaintiff denies that the statute and principles and rules of law within the State of Michi- gan applicable to the conduct concerned herein, in any way conflicts with the Railway Labor Act or Federal Statute, with the Interstate Commerce Clause of the Con- [48] stitution of the United States with Article I, Section 8 thereof, the Supremacy Clause of the Constitution, with Article VI, Clause 2, or otherwise conflict with Federal Statutes or the Con#itution of the United States. The plaintiff shows that said purported third affirmative defense is not available as a defense in this cause. Wherefore, the plaintiff denying any other or further affirmative matters contained in said answer and affirma- tive defenses, the plaintiff prays that the plaintiff be granted that relief described in the plaintiff’s bill of com- plaint. State Bar of Michigan By Phillip C. Kelley and By J. Cameron Hall General Counsel State Bar of Michigan Phillip C. Kelly, 301-4 Reynolds Building, Jackson, Michigan; J. Cameron Hall, 1323 Dime Building, Detroit 26, Michigan, Attorneys for Plaintiff. [48, 49] (Jurats omitted in printing) SONG, Wee as 29 [62] PLAINTIFF’S STATEMENT OF CLAIM (Filed April 11, 1961) Plaintiff claims that defendant, the Brotherhood of Railroad Trainmen, and its members, officers and agents named herein, and as a class within the State of Michi- gan ever since 1930, have been engaged in a course of conduct which consists of organized solicitation of claims for injuries and/or death of railroad employees occur- ring in the course of their employment within the State of Michigan, such solicitation being for the benefit of out-of-state lawyers, particularly defendants Henslee and Naughton, named herein. Plaintiff further claims that, as part of such organized solicitation, the solicitors are paid for their time and services, the Brotherhood of Railroad Trainmen is paid on an agreed basis, in consideration of designating said [63] attorneys as the recipients of such solicited claims, and the injured employees and/or their survivors are pro- vided with financial support while their cases are pend- ing. Plaintiff claims that the conduct of defendants as set forth in the bill of complaint is in violation of the crim- inal statutes of the State of Michigan, and the canons of ethics, as adopted by the Supreme Court of Michigan, that such conduct further interferes with, and impedes the orderly administration of justice, adversely affects the relationship between the legal profession and the public in the State of Michigan, and causes irreparable damage to property rights of the public, and the legal Dao Ri. -~ 55a ee Ree Ce ens a Se ne Se res lagna eat RB aed Fe Petttiteiatisiise nce Se eed = i 30 profession, in the State of Michigan, and should be en- joined. Phillip C. Kelly, J. Cameron Hall, Attorneys for Plaintiff. Dated: May 27, 1960. PRE-TRIAL SUMMARY BY THE COURT (Filed April 11, 1961) The parties hereto, by their respective counsel, ap- peared for pre-trial conference before this Court on May 27, 1960. The pre-trial statement of claim of plaintiff was filed at that time, and subsequent thereto defendants’ pre-trial statement of claim was also filed. It appears that there is a possibility that a consent de- cree may enter in this cause against the defendant. The [64] Brotherhood of Railroad Trainmen and all named de- fendants. (In this connection it is pointed out that At- torneys Edward B. Henslee, Jr., Martin K. Henslee, and John J. Naughton have declined to submit voluntarily to the jurisdiction of this court, they being nonresidents. ) In the event there is not a consent decree, defendants have been requested to advise what issue in Michigan is different than in the other states where consent de- crees have entered. It was also agreed that depositions of Mr. Whitney, with his files, and Mr. Maher and the three above-named attorneys may be taken; Mr. Whitney and Mr. Maher in Cleveland and the three attorneys either in Chicago or Detroit. — 31 It was further agreed that the answer heretofore filed may stand as the answer to the plaintiff's amended dec- laration. (In this connection it is also pointed out that this Court is this date entering an order striking from the files and records of this case the appearances of the three above-named defendants and also striking the amended bill of complaint filed herein and reinstating the original bill of complaint of plaintiffs filed herein, so that the original answer may now stand as the answer to the original bill of complaint.) It was further agreed that the Constitution of The Brotherhood of Railroad Trainmen as amended at the convention in 1954 may be admitted in evidence, includ- ing any amendments thereto, copies of which will be fur- nished by the defendants. At the time of pre-trial it was also agreed that this cause should remain on the pre-trial docket and stand continued from day to day until June 10, 1959, prior to which time this Court was to be advised as to whether [65] or not there would be a consent decree. This Court not having been advised that there would be a consent de- cree, this matter is hereby ordered transferred from the pre-trial to the trial docket. (Signed) John C. Dalton John C. Dalton, Cireuit Judge. Dated: April 11, 1961. CONCISE STATEMENT OF DEFENSE (Filed April 12, 1961) Trainmen contend that the State Bar is attempting to enjoin BRT in Michigan on the basis of a bill of com- » fa te ie Ra. Eko RES BR Ses 32 plaint which alleges selected statements from the opinion of the Supreme Court of Illinois, Re. Brotherhood of Railroad Trainmen, 13 Ill. 2d 391, 150 NE 2d 163, as facts, though based solely on information and _ belief, Such a complaint is not proper. Hartingh v. Bay Cir- cuit Judge, 176 Mich. 289, 142 N.W. 585, Ann. Cases 1915 B, 520. The matter is moot sinee the Trainmen are, and have been, in full compliance with the decision of the Su- preme Court of Illinois. The State Bar of Michigan attempted to intervene in the said proceeding and evi- dence prepared by the State Bar was introduced in the said proceeding. The complaint is also deficient for want of equity in that neither the State Bar, nor the publie of the State of Michigan have any property right in Fed- eral Employers’ Liability Act claims or cases arising out of railroad accidents occurring in Michigan. The right to practice law is not a property right. Ayres v. Hadaway, 303 Mich. 589, 6 N.W. 2d 905. Even if the publie had property rights in these cases, the State Bar of Michigan [66] is not the proper party to enforce those rights. Plaintiff may not base its complaint on an alleged vio- — lation of the Michigan statutes because it is hereby at- tempting to enjoin the alleged commission of a crime and is patently attempting to deprive the defendants of their Constitutional right to a trial by jury. Even if a : complaint could be validly based on the said statute, the _ allegations herein do not state a cause of action founded ee on that statute. The meaning and effect of that statute was considered and stated in Hightower v. Detroit Edi- son Co., 282 Mich. 1, 247 N.W. 97. There, the Supreme Court of Michigan states: “The rule of strict construction confines an of- fense to the words of the statute, but it permits the CANARD HAM VANS STR. Hd 33 words not only to be read naturally, but to be given a meaning in harmony with the purpose and intent of the law as far as may be done without distortion of language. Deloria vy. Atkins, 158 Mich. 232, 241, 122 N.W. 559; People vy. Gould, 237 Mich. 156, 163, 211 N.W. 346; Sutherland on Statutory Construe- tion, Vol. 2 s 528 et seq.; 59 C. J. 1113 §660, The purpose of the act is to discourage the prae- tice commonly known as ‘ambulance chasing’. The practice has developed recognized evils, the major of which are (1) fomenting litigation with resultant burdens on the courts and publie purpose; (2) subornation of perjury; (3) muleting of innocent persons by judgments, upon manufactured causes of action and perjured testimony, and by settlements to buy peace; and (4) defrauding of injured persons having proper causes of action, but ignorant of legal rights and court procedure, by means of contracts [67] which retain exorbitant percentages of recovery and illegal charges for court costs and expenses and by settlements made for quick return of fees and against the just rights of the injured persons.” Finally, Trainmen contend that their rights in the premises are governed by Federal Statutes, the Federal Constitution, and considerations of public policy. Be- cause of the said rights, Trainmen are entitled to have this action dismissed. Respectfully submitted, | Arthur C. Lumley, Attorney for Certain Defendants, 1512 Dime Building, Detroit, Michigan. Prcice« Sa eg de tall Cag 5 lemmas | 34 TRANSCRIPT OF TESTIMONY Jackson, Michigan, June 27, 1961 10:13 o’clock a. m. Before Honorable John C. Dalton, Circuit Judge. *(2) Appearances: Phillip C. Kelly, Esq., 301-4 Reyn- olds Building, Jackson, Michigan, and J. Cameron Hall, Esq., General Counsel, State Bar of Michigan, 1323 Dime Building, Detroit 26, Michigan, for the plaintiff; Arthur C. Lumley, Esq., 1512 Dime Building, Detroit 26, Michi- gan, and Henslee & Henslee, Esqs., of counsel by Ed- ward Henslee, Jr, Esq., and John J. Naughton, Esq., 139 North Clark Street, Chicago 2, Illinois, for the defend- ants. [68] (8) The Court: Gentlemen, are you ready for this matter to be presented to the Court? Mr. Kelly: The plaintiff is ready, your Honor. The Court: Defense? Mr. Lumley: Defense is ready, The Court: Mr, Kelly? Mr. Kelly: May T inquire if John J. Naughton is one of the partners of Henslee, Henslee & Naughton, who ap- pears as counsel for the defendants here? Mr. Naughton: Mr. Naughton is not a partner but he appears for the defendants. He is associated with the firm of Henslee & Henslee. Mr. Kelly: In Chicago. Mr. Naughton: In Chicago. Mr. Kelly: May I inquire if anyone else from that firm or associated with that firm is here? *(2) refers to page of Transcript of Testimony. 30 Mr. Henslee, Jr.; I am Edward Henslee, Jr. | am here. The Court: Are they of counsel in this matter? Mr. Lumley: The order hasn't been entered, your Honor. Your Honor has the opinion. I do not have a copy (4) of that order. Mr. Kelly: May I refer to the answer to the bill of complaint filed by the defendants, in which Edward B. Henslee, Jr., Martin K. Henslee, and John J. Naughton, 139 North Clark Street, Chicago 2, Illinois, State 2-5925, and Arthur C. Lumley, 1512 Dime Building, Detroit 26, Michigan, Attorney for Defendants, Woodward 2-1490, appears as part of the record and files in this case? Mr. Lumley: There is no contest about that, your Honor. At one time I believe there was an order entered strik- ing these parties. The Court: That is right. [69] Mr. Lumley: And then your Honor rendered an opin- ion in which you said that for comity they could be al- lowed to proceed as defendants, but we didn’t enter an order on that. So that I took the position, in view of the fact we didn't enter an order, that I could have them here to assist me in the trial of the matter, just like you would have an- other agent to assist you. It doesn’t make any difference to me. If the Court wishes to admit them right now as attorneys in this case, I would not have any objection. AD LAER ADEE se Pa IDG, a “ot ine SIE RN Poth, SS stl Le" eee Teo- o © “wr oe? ee ae [PT Seen ee a me 36 Mr. Kelly: IL think the— Mr. Lumley: That was the reason I made that state- (5) ment, Mr. Kelly: 1 think at no time were they refused the privilege as appearing as counsel here, and as T wnder- stand the record they are here as counsel for the de- fendant, The Court: We are splitting hairs here. Is there any objection to the record showing that they are here as of counsel? Mr. Lumley: No, The Court: Let the record so show. Mr. Kelly: May it please your Honor, this cause is here this morning on the original bill of complaint and the answer of the defendants to the bill of complaint and the reply of the plaintiff to the defendants’ answer. In these pleadings the issues are to a considerable ex- tent admitted. The allegations of the bill of complaint are admitted, to be more accurate. And it is proposed on behalf of the plaintiff at the outset of this case to make an opening statement on the record delineating what issues are admitted in the plead- ings. And in the course of this statement, to present documentary exhibits on the record so that the Court [70] may have before it, insofar as it ean be done, the faets which we ask the Court to find on the pleadings, follow- ing which we will present evidence as to the facts which are in dispute. And for the benefit of the Court, this being a (6) chan- cery case, on behalf of the State Bar of Michigan, I think it is proper to summarize briefly the background 37 and history of this litigation and of this matter of the State Bar to this date, including the pleadings and issues here before the Court this morning. Now, the matter which we are pursuing is, namely, the alleged unlawful solicitation through The Brother- hood of Railroad Trainmen, Legal Aid Department, of cases of Michigan residents, railroad employees and their survivors in the event of the death of those em- ployees, which cases come under the terms and provi- sions of the Federal Employers’ Liability Act; the solici- tation of those cases through the operations of the Legal Aid Department of The Brotherhood of Railroad Train- men who have certain attorneys—more specifically, have regional counsel of The Brotherhood of Railroad Train- men, Legal Aid) Department—whose territory includes the railroads in the lower peninsula of Michigan. Now, this matter first came to light, at least to the knowledge of the State Bar of Michigan and myself as a member of that bar, in the form of a newspaper story which appeared in the local Jackson Citizen Patriot late in 1952, which contained— Mr. Lumley: Just a moment. I object to any reference to something that would categorically he hearsay. He could so mention the newspaper story. (7) The Court: There is no objection to noticing it. This Court will not take judicial notice of any news- paper story. It will not receive it in evidence, because it is hearsay. [71] You have no objection to the record showing that is how it first came to your attention? Mr. Kelly: All right. wiikinn i Ht 38 It came to the attention of the City of Jackson and the attorneys practicing in Jackson, members of the Jackson County Bar Association, late in 1952, that the case of a local citizen employed by the New York Central Railroad had been handled by— Mr. Lumley: Just a moment. I object to that again because now he is telling what is in the article, and that, I believe, is hearsay, your Honor. Mr. Kelly: This is prefatory, your Honor please, to giving the Court the background of this ease. There is no jury here. I do not ask the Court to consider it as any evidence in the case. The Court: Let’s keep in mind, gentlemen, we do not have any jury to impress here. Let’s get the facts before the Court so we ean have this matter for disposition. As a matter of fact, the Court is familiar with it, any- way, but I do not think it is properly before the Court. (8) Mr. Kelly: I am going to elaborate on it. The Court: Lets’ go on. We have this coming to the attention of the State Bar in 1952 through a newspaper story which appeared in the Jackson Citizen Patroit. Mr. Kelly: I may say to the Court that it had been the cause of some wonder why this type of case was never seen in this Court, and I think the records will show that no such case as an F. E. L. A. case has ever been in this court. As a result of this newspaper publicity, the State Bar of Michigan appointed a committee to investigate what was going on in reference to the F. E. L. A. eases arising in Michigan. 39 [72] I was appointed chairman of the State Bar committee by President David Pence. An investigation by our committee disclosed that there had been established by the B. of R. T. back in 1930, approximately, what was called a Legal Aid Department. The rational or the explanation for the creation of this department was expounded by the president of the B. of R. T. at that time. I will refer to that later as to the statements which were made as to why this Legal Aid Department was organized. I think probably in deference and in reference to the Court’s indicated statement that I will proceed with- out any further background to the state of the pleadings in this (9) case. The Court: Very well. Mr. Kelly: Referring only just briefly to those further matters. The State Bar, after the disclosures made from the in- vestigation our committee had produced, authorized a complaint to be made on behalf of the State Bar of Michigan to the Chicago Bar Association against the Henslee firm in Chicago, regional counsel of the B. of R. T. covering Michigan. That complaint was filed with the Chicago Bar Association in the year 1956 or 1957. I believe 56. And it was made at that time by a proceed- ing instituted by The Brotherhood of Railroad Trainmen in the Supreme Court of the State of Illinois, asking for approval of their methods of what we term solicitation in these F. E. L. A. cases. The Supreme Court of Illinois appointed a commis- sioner to hold hearings and investigate the operations “NORE A keen OMS sabe ge Pe ee fz Sarthe, Beinn WEIS CR AP as 40 and, following the report of the commissioner, the Su- preme Court entered a decree disapproving their meth- ods and operations and entering a decree to that effect, [73] but at the same time stating that, inasmuch as the law had just been settled in Illinois, the complaints whieh were pending by the State Bar of Michigan and, I think, the Philadelphia Bar Association at that time against regional counsel in Chicago should be dismissed and not prosecuted. (10) So that this proceeding was authorized by the State Bar, the instant proceeding here, to ask the Court for an injunction against the operations of The Brother- hood of Railroad Trainmen in Michigan. And that is the basis on which this case has come to court. Now, in our bill of complaint, in paragraph 1, it is al- leged that the State Bar of Michigan is a public body corporate, charged with the duty to aid in promoting im- provements in the administration of justice and advance- ments in jurisprudence, in improving relations between the legal profession and the public, and in promoting the interests of the legal profession in the State of Michi- gan. The answer of the defendants admits paragraph 1. And in paragraph 2 it is alleged that The Brotherhood of Railroad Trainmen is a national railway labor organ- ization, with principal office in Cleveland, Ohio, but hav- ing branches, members, officers and agents throughout the United States, including the State of Michigan. And the answer admits those allegations. Paragraph 8 alleges: “That Frank J. Carr and L. M. Hasbrouck, of Jackson, Raymond Fieberkorn and 41 Thomas W. Fletcher, of Detroit, W. C. Coryell, of Oke- mos, L. E. Singer of Plymouth, E. V. Surdam, of Grand Rapids, H. F. McCall, of Birmingham, R. J. Johnson and LL. A. Russell, of Durand, A. V. Grandstaff, of Dear- born, W. T. Ellsworth, of Allen Park, (11) R. J. Snow, of Melvindale, and William KE. B. Chase, of Livonia, are [74] members, officers and agents of defendant Brotherhood of Railroad Trainmen residing within the State of Michigan, and that there are other members, officers and agents of said defendant Brotherhood of Railroad Trainmen, within the State of Michigan, constituting a class so numerous as to make it impracticable to bring them all before the court, as to all of whom there are common questions of law and fact affecting their several rights and against all of whom a common relief is sought, as hereinafter shown.” The answer of the defendants admits that they are members, officers and agents of defendant Brotherhood of Railroad Trainmen (hereinafter called Trainmen) residing within the State of Michigan and further admit that there are others in like capacity within the state. Defendants deny all other allegations in paragraph 3. In other words, the denial of the defendants there is the statement of the allegation that it constitutes a class so numerous as to make it impracticable to bring them all before the court. There are no questions of law and fact as to all of them. In paragraph 4 of the bill of complaint it is alleged that in or about the year 1930 the Brotherhood of Rail- road Trainmen organized and established a so-called Legal Aid Department as a division of said Brother- it? ia TN pV te 42 hood of Railroad Trainmen, (12) representing, as rea- sons for organizing said Legal Aid Department, the following: “Many lawyers frequently abuse the confidence of their clients by effecting low settlements in the case in order to obtain a higher settlement in some other case against the same railroad; incompetently preparing and processing such cases upon the law or the facets; not fully and fairly explaining to the client the terms of the employment, so that the client, after having assented to settlement, finds the proceeds thereof surcharged with items for expense of litigation, medical expenses, expenses of one sort and another or the like, which are not legitimate, or if legitimate, were not explained to him before the settlement was concluded, as well as in other ways. “Adequate compensation cannot in general be ex- acted if members of the Brotherhood are persuaded by claim agents either to settle their own claims or to place them in the hands of incompetent, inex- perienced or otherwise inadequate counsel. “In 1930, A. F. Whitney, then President of the Brotherhood, in a public utterance to the Brother- hood’s membership, declared that in his several years’ experience as an officer of the Brotherhood, it had come to his attention that members who had been killed while engaged in railroad service had fared rather badly at the hands of railroad claim (13) agents in some instances, as well as at the hands of so-called ambulance-chasing lawyers, and that settlements wholly inadequate in the light of the seriousness of the injuries and the responsibility 43 of the employers had been made with members of the Brotherhood who were either entirely devoid of their rights in such matters or who had been induced to make cheap settlements by misrepresentations indulged in by those who sought to effectuate these settlements.” The answer of the defendants admits “that in the year 1930 the Trainmen organized and established a depart- ment of the Trainmen designated as the ‘Legal Aid De- partment.” Defendants admit that the representations [76] alleged were stated, along with other representations, as factors to be considered in deciding whether a legal aid department should be established. Defendants deny all other allegations of paragraph four of the bill of com- plaint.” [ point out to your Honor at this time that there are no other allegations in the complaint which would be cov- ered by that denial. In other words, paragraph 4 is in effect admitted. Paragraph 4, that is correct, is in effect admitted. And then the defendants go on to say further in their answer, which is numbered 3 in the answer: “Defendants aver that on a referendum question- naire and ballot in 19380, the members of the lodges of the Trainmen (14) in the United States voted by a majority of eleven to one that a legal aid depart- ment should be organized. “Defendants further aver that the said Legal Aid Department was thereupon organized as a part of or department of the defendant Trainmen and, as POSE SANG RIND cd a Ni a | oe ae 44 constituted, was directly subject to the provisions of the Constitution of the Trainmen and to the auther- ity of the president of the Trainmen. “Defendants further aver that the title of the said Legal Aid Department was changed by order of the president of the Trainmen on or about Janu- ary 1, 1959, and was redesignated as the ‘Depart- ment of Legal Counsel.’ Defendants aver that the title of the attorneys designated for the several re- gions was at the same time changed from ‘Regional Counsel’ to their present designation as ‘Legal Coun- sel.’ ” 77] Now, the plaintiff has filed a reply to these affirma- tive allegations, as follows: “Replying to the affirmative allegations contained in the seeond, third and fourth paragraphs of para- graph 3 of the answer herein, this plaintiff is with- out information sufficient to form a belief with re- spect thereto and hence, neither admits nor denies the same but leaves the defendants to their proofs thereof.” In paragraph 5 of the bill of complaint it is alleged “that plaintiff is informed and believes, and therefore alleges as true, that the Constitution and By-Laws of the defendant (15) Brotherhood of Railroad Trainmen re- quire, and the so-called Legal Aid Department of said Brotherhood of Railroad Trainmen has, ever since its formation, by and through its members, officers and agents, pursued and continues to pursue and engage in a well-organized and systematized solicitation, for so-called Regional Counsel, of claims and/or causes of action for personal injuries and/or death of railroad Ta 45 employees arising under the Federal Employer’s Liabil- ity Act, using the methods and practices, as follows: “A member representative of the Brotherhood, usually the Chairman of the Grievance Commit- tee in the locale of the accident, calls upon the in- jured employee or his bereaved family, and not only explains to them that they can, but recommends and urges that they do consult with the Regional Coun- sel, and such representative urges said employees or survivors of the deceased employees not only to consult, but to retain Regional Counsel. Such em- ployees or survivors of deceased employees are told that Regional Counsel will not charge in excess of [78] 25 per cent (25%) of the amount of any recovery, whether recovery be affected by suit or settlement, and that this percentage will include expenses inci- dental to the investigation and any litigation of the claim.” And in answer to that paragraph, the answer of the defendants is as follows: “Defendants deny each and every allegation con- tained (16) in paragraph five of the bill of eom- plaint. “Defendants aver that in many eases, but not in all, a member of the defendant Trainmen calls upon, contacts, or in some other manner explains to an injured member employee, or his bereaved family, the advisability of obtaining a lawyer, or the opin- ion of a lawyer, and recommends that they consult with the Legal Counsel designated, and further recommends that the Legal Counsel be retained if a lawyer is to be retained. Defendants further aver erent | 46 that some of the same members have represented, as was the fact in most cases arising in the Lower Peninsula of the State of Michigan, that the legal counsel will not charge in excess of twenty-five per cent (25%) of the amount of any recovery whether the recovery be effected by suit or settlement, and that this percentage would include expenses inci- dental to the investigation and any litigation of the elaim. “Defendants further aver that this representation of the fee charged has been eliminated by order of the president of the Trainmen contained in his let- ter to all lodges dated March 16, 1959, effective April 1, 1959, hereinafter set out in the First Af- firmative Defense to this answer.” [79] This letter was dated, of course, after this action was started in this court. And our reply leaves them to their proof as to those allegations. However, I point out to your Honor that it is here (17) admitted that the representative of the Brother- hood of Railroad Trainmen, Legal Aid Department. recommends that legal counsel be retained, which is the issue in this case alleged and admitted. In paragraph 6 of the bill of complaint it is alleged that “Plaintiff is further informed and believes, and therefore alleges as true, that representatives of the Brotherhood of Railroad Trainmen are reimbursed for their time in bringing injured employees or the survivors of the deceased employees to the officers of the Regional Counsel. Reimbursement is at the member representa- tive’s hourly rate of pay on the railroad. Members rep- — 47 resentatives are also reimbursed for any out-of-pocket expenses incurred in bringing injured employees or the survivors of deceased employees to Regional Counsel.” ~ The answer of the defendants, number 5 of their an- swer, is as follows: “Defendant’s admit the allegations of paragraph six of the Bill of Complaint as being in existence up to and including the 3lst day of March, A. D., 1959.” Which was, as I have said, after the suit was filed. (Continuing reading) “Defendants further aver that the said compensation and reimbursement has been terminated under the previously mentioned order of the (18) president of the Trainmen dated March 16, 1959.” [80] Our reply to that answer is as follows: “Replying to paragraph 4 thereof—” No, I have just referred to paragraph 5 but I neglected to read our reply to their paragraph 4, and I shall read it into the record at this time. (Reading): “The plaintiff shows that the defendants and each of them are precluded from denying the contents of the sub-paragraph under paragraph 5 of the Bill of Complaint, by reason of the admissions on behalf of the defendant Brotherhood and the findings of fact in a proceeding in the Supreme Court of the State of Illinois, to which proceeding and opinion refer- ence is made at the top of page 6 in the defendants’ answer, with reference to the matter an investiga- tion as to the practices of the Brotherhood of Rail- wicca cee | [81] 48 road Trainmen, ete. 13 Illinois, 24 391; 150 North- eastern 2nd, 163. “Replying to the second paragraph under para- graph 4 of the defendants’ answer, the plaintiff shows that the admissions by the defendants therein set forth constitute solicitation of claims within the State of Michigan by the defendants or by part or all of the defendants and by the defendant Brother- hood, on behalf of the Regional Counsel or Legal Counsel of the defendant Brotherhood. Replying to the third paragraph under Paragraph 4 of the defendants’ Answer, the plaintiff shows that: (19) “(a) The alleged order by the President of the defendant Brotherhood dated March 16, 1959, is alleged by the defendants in this paragraph to apply to the representation as to the fee to be charged by the Brotherhood’s Regional Counsel or Legal Coun- sel and does not cover the many other courses of con- duct which are the subject of this cause. “(b) There is no assurance that each and all of the members of the defendant Brotherhood will comply with the terms of such orders as may be issued by the President of the defendant Brother- hood. “(c) There is no assurance that if there were an order by the President of the defendant Brother- hood as alleged, the same might not be reversed by either this or a future officer of the defendant Brotherhood. 49 “Replying to the affirmative matters set forth in Paragraph 5 of the answer, wherein the defendants admit the allegations of paragraph 6 of the bill of complaint up to March 31, 1959, the plaintiff shows that even if the President of the defendant Brother- hood disseminated a communication dated March 16, 1959, the same does not constitute a defense in this cause for the reasons that: “(a) Said purported communication by — the President of the defendant Brotherhood does not cover all of the matters concerned in this cause, nor is it alleged to cover all of the matters of conduct concerned in this (20) cause. “(b) There is no assurance that each and all of the members of the defendant Brotherhood will (82) comply with the terms of such orders as may be is- sued by the President of the defendant Brotherhood. “(c) There is no assurance that if there were an order by the President of the defendant Brother- hood as alleged, the same might not be reversed by either this or a future officer of the defendant Brotherhood.” Now, in paragraph 7 of the bill of complaint alleges: “Regional Counsel referred to above are attor- neys selected by the defendant Brotherhood of Rail- road Trainmen, in some fifteen ‘regions’ designated by said defendant to receive, through the methods and practices aforesaid, all Federal Employers Lia- bility Act cases arising in their designated regions.” The answer of the defendants, carried under number 6 of their answer, says: Pe A NEN ss OTE NaS DS tet NER es ee a eS Peecnter cen patel : 50 “Defendants deny each and every allegation of paragraph seven of the Bill of Complaint. “Legal Counsel referred to above are attorneys designated by the defendant Trainmen in some seventeen regions designated by the said defendant as attorneys recommended for their qualifications and their integrity to be competent to prosecute claims arising under the Federal Employers’ (21) Liability Act for members of the trainmen in their designated regions.” Our reply to that answer is as follows: “Replying to the purported denials and affirma- tive allegations in Paragraph 6 of the defendants’ Answer, the plaintiff shows that the second para- [83] graph under paragraph 6, in effect, admits the type of conduct alleged in paragraph 7 of the plaintiff's Biil of Complaint. The plaintiff further shows that the defendants are precluded from denying the con- duet described in paragraph 7 of the plaintiff's Bill of Complaint by reason of the admissions of the de- fendant Brotherhood and opinion of the Court in said Tllinois case to which reference is made at the top of page 6 of the defendants’ Answer. Paragraph 8 of our bill of complaint alleges: “The Lower Peninsula of the State of Michigan, is the ‘region’ of one Edward B. Henslee, an attor- ney, of Chicago, Illinois, and his associates, for whom defendants, or some of them actively solicit, by the methods herein outlined, all cases of personal injury or death of railroad employees occurring in the State of Michigan, as plaintiff is informed and believes and thereupon alleges as true.” r Wear * + 51 The answer of the defendants, carried under number 7 of their answer, says: “Defendants deny all of the allegations of para- (22) graph eight of the Bill of Complaint except that they admit the Edward B. Henslee referred to at one time was the Regional Counsel for a region including the Lower Peninsula of the State of Michi- gan and that he had associates. Defendants further aver that the said Edward B. Henslee died on No- vember 22, 1958.” Our reply to that answer is as follows: “Replying to Paragraph 7 thereof, with reference to the denial therein contained, the defendants are [84] precluded from denying the allegations of paragraph 8 of the plaintiff's Bill of Complaint by reason of the admissions on the part of the defendant Brother- hood and the findings of the Court in said Illinois case as described at the top of page 6 of the defend- ants’ answer. “Further answering said paragraph, the plaintiff lacks information sufficient to form a_ belief with respect to the allegation that Kdward B. Henslee died either on November 22, 1958, or any othe date and accordingly, neither admits nor denies the same but leaves the defendants to their proofs thereof. “The plaintiff further shows that the conduet with reference to solicitation and other matters de- seriped in the Bill of Complaint are applicable to whatever Regional Counsel or Legal Counsel may have been in office or associated with the defendant Brotherhood as described in the Bill of Complaint Sieata, cities | 52 (23) and that the allegations of the Bill of Com- plaint with reference to said Edward B. Henslee refer to whoever acted as Regional Counsel or Legal Counsel for the defendant Brotherhood with refer- ence to said matters described in the Bill of Com- plaint.” Paragraph 9 of the bill of complaint alleges that: “Plaintiff further shows unto the Court, on infor- mation and belief, that, by and through the opera- tions of the Legal Aid Department of the Brother- hood of Railroad Trainmen in the State of Michi- gan, large numbers of eases and claims of members of the Srotherhood of Railroad Trainmen residing in Michigan and whose claims have arisen within the [85] State of Michigan, have been unlawfully and im- properly solicited by said Brotherhood of Railroad Trainmen Legal Aid Department, through its mem- bers, agents and officers, and have been directed into and handled by the office of Regional Counsel Hens- lee and associates in Chicago, Illinois, and else- where, to the extent that a majority of such eases are so solicited and so handled.” The defendants deny each and every allegation of paragraphs 9, 10, and 11 in their number 8 of their an- swer and, for reply, the reply as filed by the plaintiff sets forth as follows: “Replying to Paragraph 8 of the defendants’ An- swer, the plaintiff shows that the defendants are precluded from (24) the denials as to paragraphs 9, 10 and 11 of the Bill of Complaint by reason of admissions made by the defendant Brotherhood in 53 said case in the Illinois Supreme Court as cited at the top of page 6 of the defendants’ Answer and also for the Court findings in that case. The plain- tiff further shows that the defendants have failed to set forth any reason or reasons as to the denial of the existence of the statute as quoted in paragraph 11 of the Bill of Complaint.” We have not, of course, read that as yet, but it is a penal statute of this state. Paragraph 10 of the bill of complaint alleges: “That such solicitation, on an organized and sys- tematized basis, interferes with and impedes the orderly administration of justice, adversely affects the relationship between the legal profession in the State of Michigan and the public, and causes, and [86] threatens to cause, irreparable damages to property rights of the public and the legal profession in the State of Michigan.” That is denied by the answer, as stated. Paragraph 11 alleges that the methods of operation of the Legal Aid Department of the Brotherhood of Rail- road Trainmen, as set forth above, violate the Penal Code of the State of Michigan, particularly Section 410 thereof, being Section 28.642 of Michigan Statutes Anno- tated, and it is quoted in its pertinent part in this para- graph, and I will (25) not read it into the record. The Court: I see no need to. The Court will take judicial notice of that. i % Y id a 3 “> 7 e! 3 3 Ge REE Bios PF Reatta et Ais BAS ess. o4 Mr. Kelly: Paragraph 12 alleges that matter in dis. pute in this case exceeds the sum of one hundred dol- lars, and in their answer the defendants deny that alle- gation. Paragraph 12 then goes on to pray for relief by way of answer of the defendants and injunction from the conduct complained of, and I will not read that into the record because it is part of the bill of complaint. So that there are affirmative defenses set forth, but that is a matter for the defendants to care for, I assume. As the pleading stand, if the Court please, we believe that substantially all of the allegations of the bill of complaint, all of the material allegations in the bill of complaint, are admitted except as to paragraph 9 alleg- ing that large numbers of cases and claims of members of the Brotherhood of Railroad Trainmen residing in Michigan and whose claims have arisen within the State of Michigan, have been unlawfully and improperly so- licited by said Brotherhood of Railroad Trainmen Legal Aid Department, through its members, agents and of- [87] ficers and have been directed into and handled by the office of Regional Counsel Henslee and associates in Chi- cago, Illinois. As to that matter, we propose to present proofs to (26) the Court; and, further, as to the statements made by the Brotherhood of Railroad Trainmen in its proceed- ing in the Illinois Supreme Court which are relied upon by the defendants and mentioned also in our reply. (To the reporter): Will you mark this, please? (The booklet referred to was marked “Plaintiff's Exhibit 1.”) ah) Mr. Kelly: I would like to offer in evidence plain- tiff’s Exhibit 1 entitled “Motion for Leave to File Peti- tion for this Court’s Declaratory Judgment or Directive Order Concerning the Practice of Law in the Respects Set Forth in the Petition,” filed in the Supreme Court of Illinois, November Term, A. D. 1955. In the Matter of the Petition of the Brotherhood of Railroad Trainmen; and W. P. Kennedy, President and a member thereof; on behalf of the members, thereof, Petitioners, number 33877, as certified to by Mrs. Earle Benjamin Searcy, Clerk of the Supreme Court of the State of Illinois. Mr. Lumley: Your Honor, I object to the proposed plaintiff’s Exhibit 1 for the reason that my examination of it indicates that it is a petition of the Brotherhood of Railway Trainmen and, as such, it does not constitute testimony. I do not see how just the pleadings of any particular case would be admissible in this case. (27) The Court: Is it a part of the— Mr. Lumley: It doesn’t involve the same parties. The Court: Is it a part of the record in the Illinois case? [88] Mr. Lumley: It is a part of the record in the Illinois case, that’s right. The Court: It will be admitted, then. Mr. Lumley: I would like to conclude my objection. The Court: Go ahead. Mr. Lumley: I believe that, as regards plaintiff's Exhibit 1, it is incompetent, irrelevant, and immaterial. It merely represents pleadings in a case rather than 5 # ¥ g e : =] # = 2 2 a ¥ Fi 4 | 4 3 ¥ 2 4 ~J Ae $ M4 see WA a Pertetiiistisesiisrins ony | i testimony, and certainly it is not evidence of any testi mony offered in that case, which would have to be used by counsel for impeachment purposes. Mr. Kelly: I would like to read into the record from plaintiff’s Exhibit 1 the following pages, 6 and 7, of the exhibit: “Under the Brotherhood’s constitution, by-laws and other action approved by its membership, when a member is injured or killed in railroad operations, it is not only the right and privilege but the duty and obligation of member representatives of the Brotherhood, usually the Chairman of the Grievance Committee in the locale of the accident, to call upon the injured member of\his bereaved family, and not 27) only explain to them that they can but recom- mend and urge that they do consult with the Re- gional Counsel and his associates. The representa- tive informs them that (as is the fact) such con- sultation does not require them to retain Regional Counsel and will entail no financial obligation upon them unless they do retain such Counsel. There is no disavowal, however, of the fact that repre- sentatives do in fact not only urge members or sur- vivors of the deceased members not only to consult, but to retain, Regional Counsel. Members are told [89] (as is the faet) Regional Counsel are not permitted to and will not charge in excess of 25% of the amount of any recovery, whether recovery be effected by suit or settlement, and that this percentage will in- clude expenses incidental to the investigation and any litigation of the claim.” 57 Mr. Lumley: Will you read the date of that petition, counsel, so we have it in the record? Mr. Kelly: It does not appear to be dated, Mr. Lum- ley. It says: “Respectfully submitted,” signed “Brother- hood of Railroad Trainmen (A national railway labor union); W. P. Kennedy, President of the Brotherhood, By William C. Wines, Attorney for Petitioners.” It is filed in the November Term, A. D. 1955, of the Supreme Court of Illinois. (28) Otherwise, it is not dated. The Court: Does that cover your point? Mr. Lumley: Yes, sir. The Court: Very well. Mr. Kelly: Reading further from page 7 of the ex- hibit: “Local Chairmen, or other member representa- tives of the Union, are reimbursed for their time in bringing injured members or the survivors of de- ceased members to the offices of Regional Counsel. In many instances member representatives of the union are employed to investigate claims, it having been found that their acquaintance with fellow- employee witnesses and their conversance with rail- road operations make them, for many eases, the best investigator. Reimbursement is at the member rep- [90] sentative’s hourly rate of pay on the railroad, is made immediately, and is wholly independent of whether any money is recovered upon the claim or not. Member representatives are also reimbursed ER ARE BU aap cer | ah ih age: Sa PS ai lin oP eee SA, ae 58 for any out-of-pocket expenses incurred in bringing injured members or the survivors of deceased mem- bers to Regional Counsel and in investigating the case. Such reimbursement is likewise independent of the result of any claim.” Reading further at the top of page 6 of the exhibit, your Honor: “Edward B. Henslee, a Chicago lawyer, is Gen- eral (29) Counsel for the Brotherhood and is one of the 15 Regional Counsel. He has offices in Chi- cago.” The Court: Is there going to be considerable read- ing from this next exhibit? Mr. Kelly: No, your Honor. The Court: Why, if there was, we better give the reporter a break here. Mr. Kelly: Will you mark this, please? (The booklet referred to was marked “Plaintiff's Exhibit 2.”) Mr. Kelly: Exhibit 2 is offered in evidence. Mr. Lumley: Defendants object to the admission of plaintiff's proposed Exhibit 2 in evidence on the ground that it is incompetent, irrelevant, and immaterial. It contains conclusions of the pleader. It was not. testi- mony. Particularly, I direct the Court’s attention to the fact that the date of this particular pleading is the November Term, as far as I can tell here, 1955, which, of course, [91] from the standpoint of laying the foundation for the relief that the plaintiff seeks, is incompetent, irrelevant, — 59 and immaterial because it is better than five years ago, and it does have no bearing upon whether the practices that are alleged to have been contained in the plaintiff’s Exhibit 2 are now in operation. Mr. Kelly: It is in the same category as Exhibit 1, (30) your Honor, another petition, an accompanying petition filed by defendant, The Brotherhood of Railroad Trainmen, in the Supreme Court of Illinois. The Court: Let me ask you this: This is a part of the record of the Illinois case, Mr. Lumley? Mr. Lumley: Of course, he is the one that is offering it, but I presume it is a part of the record, yes, your Honor. The Court: Well, so far as you know. Mr. Lumley: As far as I know, it is a part of the record. The Court: It may be admitted. Mr. Lumley: But I— The Court: I understand. Mr. Lumley: I want the Court to realize I am object- ing to the record of the Illinois ease. The Court: I understand. Mr. Kelly: Exhibit 2 is entitled: “Petition for This Court’s directions with Respect to the Representation by Attorneys, of Members of The Brotherhood of Rail- road Trainmen and the Survivors of Deceased Members Arising Under the Federal Employer’s Liability Act and the Railway Labor Act.” Filed: “In the Matter of the Petition of the Brother- hood of Railway Trainmen; and W. P. Kennedy, Presi- | reece a eee 60 [92] dent (31) and a member thereof; on behalf of the mem- bers, thereof, Petitioners.” Filed: “In the Supreme Court of Illinois, November Term, A. D. 1955,” being number 33877; and reading specifically from page 7 of the exhibit as follows: “Edward B. Henslee is both the General Counsel and one of the Regional Counsel for the Brother- hood, as Regional Counsel represents the interests of the Brotherhood and its members with respect to the following segments of the following railroads, respectively.” Now, without reading further, I will just refer to the fact that defendant includes all or portions of the states of Indiana, Ohio, Illinois, Pénnsylvania; and as to Michigan, reading again: “All employees of railroads except those which run into the upper peninsula of the state.” The Court: I think at this time we better take a ten- minute recess. (A brief recess was taken.) Mr. Kelly: If the Court please, that concludes our presentation under the heading of issues in dispute, and we will refer to Mr. Lumley if he cares to make an opening statement. If not, we are prepared to proceed with our proof under paragraph 9 which is in dispute. The Court: Mr. Lumley, do you wish to or do you wish to reserve it? (82) Mr. Lumley: TI didn’t know that was an opening statement, your Honor. [I thought he started on his case. He read those things in the record as evidence, and Plaintiff’s Exhibit 1 and 61 Plaintiff's Exhibit 2 were admitted in evidence as ex- hibits in the case. [93] Mr. Kelly: That is right; they are matters— Mr. Lumley: That is not an opening statement. That is embarking upon his own case. [ am content now to continue with his own case and I will reserve my rights to make an opening statement at the time when we start in ours if the Court will per- mit me. The Court: Very well. Mr. Kelly: I offered Exhibits 1 and 2. They are part of the pleading in the Illinois Supreme Court on behalf of the defendant Brotherhood, as explanatory of the mat- ters which are, we admitted in the pleadings; but as a different—the statements published in those records which are also in the pleadings. We haven't offered any proof as to disputed matters. We do not intend to. How- ever, we are ready to go ahead with proof if counsel does not want to make an opening statement. Mr. Lumley: If counsel is now saying that what he has done heretofore constitutes an opening statement of his claim, then I move that all of it be stricken for the reason (33) that an opening statement is a statement made by counsel as to what he intends to show and does not constitute evidence and is not testimony. What he did in this particular case was to introduce into evidence two exhibits over my objection, which cer- tainly constitutes not an opening statement but evidence received by the Court in substantiation of his claims in his bill of complaint, and I ask that it be stricken. Mr. Kelly: I don’t know whether Mr. Lumley was listening or not. Te RE ee | penn Pd eT es es at RES eel ats oa ty hie at ag” te te + ele F tle hci « 62 Mr. Lumley: I was. Mr. Kelly: But I stated to the Court that those mat- [94] ters were not in dispute and were admitted in the plead- ings, and I was going to state them in the record for the purpose of assisting the Court in making the findings of facts. We are ready to go ahead. The Court: Let’s get on with the proofs. Mr. Kelly: With our proofs, if counsel doesn’t want— Mr. Lumley: May I have a ruling on my motion to strike? The Court: Your motion to strike is denied. (34) WALSH, DAVID J., called as a witness on behalf of the plaintiff, being first duly sworn, testi- fied as follows: Mr. Kelly: For the purposes of the record, if your Honor please, and in opposition to the motion as made by the defendants, I would like to re-offer at this time in evidence plaintiff's Exhibits 1 and 2 and ask that they be received in the record at this time. Mr. Lumley: Same objections. The Court: Same ruling. Mr. Lumley: Everything is the same. The Court: We are saving time. Mr. Kelly: Are the exhibits received at this time, your Honor please? The Court: Yes. Mr. Kelly: Thank you. [95] Direct Examination By Mr. Kelly: What is your name, please? My name is David J. Walsh. W.-a-l-s-h? Yes, sir. Where do you live, Mr. Walsh? I live in Chicago, Illinois. What is your occupation? bPOo>OoOPOoDO I am supervisor of the clearing house for the Claims Research (35) Bureau, General Claims Division, of the Association of American Railroads. Q. And is the Association of American Railroads a national organization? A. Yes, sir. Q. Who comprises that association? A. Railroads operating in the United States. Q. And how long have you occupied your position with that organization? A. Since July 1, 1953. Q. Will you state whether or not the business of that organization includes the keeping of records of claims filed against railroad members of the organization? A. It does. Q. And whether or not the keeping of those records is under your supervision? A. It is, yes. Q. And has been since July 1, 1953? MO one odie BES oe a, a ot hip aap willie Be etn toicds nee ee A. Yes. Q. Is it the regular course of your business to keep those records? A. It is, yes. [96] Q. I will ask you whether or not you have with you records of claims of Michigan residents under the Fed- eral Employers’ Liability Act against railroad members of the Association of (86) American Railroads. A. Yes, I do. Q. Will you produce them? A. Yes. I have them right here. Q. Now will you refer to these records and tell the Court what period of time they cover? A. Yes. I have a group of cards here which covers eases reported during the period July 1, 1953, to March 31, 1955. Mr. Lumley: May I ask that that testimony be stricken relating to any cards he may have between the years 1953 and 1955 on the grounds that as far as the issues in this case are concerned they are incompetent, irrelevant, and immaterial? This case is being tried in 1961 for alleged things that happened in 1961, if they predicate that testimony upon what they want to seek an injunction in the future. Mr. Kelly: The only issue in this case as we see it. Mr. Hall and myself for the plaintiff, is whether or not a large volume of these cases arising in Michigan reached the office of Regional Counsel Henslee and as- sociates in Chicago over a period of several years dur- ing the operation of this legal aid department. That is 65 placed in issue in our bill and denied by the answer, and this is evidence offered in support of the bill. The Court: It may admitted. (87) Q. (By Mr. Kelly): You have identified records covering the period of July 1, 1953, to March 31, 1955, is that so? A. Yes, that’s correct. [97] Q. I am holding in my hand a number of cards on which are typed this legend: “F. E. L. A. cases involving Michigan residents reported to Claims Research Bureau 4 a during period July 1, 1953, to March 31, 1955. Is that so? A. Yes, that’s correct. Mr. Lumley: May I ask a question if he seeks to admit that in evidence, your Honor? The Court: IT do not think he has offered them yet. I assume it is going to be marked as an exhibit but it has not been offered yet. Mr. Kelly: Will you mark these, please? (The group of cards referred to was marked “Plain- tiff’s Exhibit 3.”) Q. (By Mr. Kelly): Are these records kept under your supervision, Mr. Walsh? A. Yes, they are. Q. Are they made and kept in the regular order of your business and in the regular course of your business? A. Yes, they are. Q. Is it the regular course of your business to keep such records? ec Dh LONE APS ois MES i eS atest: AN hah IR i te at Dr Nem Sap at A its Pei nteier. ied abit 66 A. Yes, it is. (38) Mr. Kelly: Will you mark this, please? (The group of papers referred to were marked “Plain- tiff’s Exhibit 4.”) Q. (By Mr. Kelly): I will show you plaintiff's Ex- hibit 4, Mr. Walsh, and ask you what that is. Mr. Lumley: Well, I think that will have to be identi- fied so that you can offer it in evidence before you take testimony. It may be inadmissible. Mr. Kelly: Thank you, Mr. Lumley. That is what I am asking him. [98] The Court: He is going to identify them. That was the question. A. This is a listing of each of the cards which are in this exhibit. Q. (By Mr. Kelly): This is a compilation of the pertinent information which is contained in the cards constituting plaintiff’s Exhibit 3? That’s correct. Made for the convenience of the Court? Yes, it is. Who made that schedule? I made that personally. You made it personally? rere rer Yes. Q. It refers to these cards, Exhibit 3, is that right? (39) A. Yes. Mr. Kelly: Now, for the purpose of convenience, we offer plaintiff's Exhibit 4 in evidence, which the witness 67 has testified was made personally by him from his orig- inal records. We will tender those records, Exhibit 3 for the use of counsel for the defendants if he cares to see them, and we will offer Exhibit 3 also. For whatever purpose. But we thought it would be less cumbersome in the file to offer the compilation. The Court: I think it is apparent, the reason for it; so if you will let counsel examine them perhaps we can agree on something here. Mr. Kelly: We offer plaintiff’s Exhibits 3 and 4. Mr. Lumley: May I ask a question now on Exhibit 3? Mr. Kelly: Yes. The Court: Go ahead. [99] Q. (By Mr. Lumley): Mr. Walsh, where did you get the information that is listed on the cards which con- stitute plaintiff’s Exhibit 3? A. It is supplied by the railroads. Q. In other words, these cards merely reflect informa- tion that was given to you from the record of the inde- pendent railroad? a. oe (40) Q. So that the original records which represent the information that is listed on plaintiff’s proposed Exhibit 3 are with the original railroads that settled the claims? A. Yes. Mr. Lumley: I object to it, your Honor, on the ground that it is not the best evidence, Exhibit 3. mt 68 Mr. Kelly: Your Honor please, this is offered under Section 27.902, Michigan Statutes Annotated, the busi- ness-records-evidence statute, which insofar as material here reads as follows: “Any writing or record whether in the form of an entry in a book or otherwise, made as a memorandum of any act, transaction, occurrence or event shall be admissible in evidence in all trials, hearings and proceedings in any cause or suit in any court in : proof of said act, transaction, occurence or event if it was made in the regular course of any business and it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter. All other circumstances of the making of such writing or record including : lack of personal knowledge by the entrant or maker, may be shown to affect its weight but not its ad- missibility.” [100] It is the business of the—and has been so testified —the regular course of business of the Association of (41) American Railroads to keep such records. They are made under the supervision of this witness in the regular course of their business, and it is the regular course of business to make them and keep them as ree- ords. And it is clearly admissible under the statute. : % : 3 3 + Z Ble il Pt Mr. Lumley: The court has ruled numerously that the so-called shop-book rule, which T believe is what counsel refers to, was not designed to render admissible that which has been heretofore inadmissible. All of these railroads have original records of claims that they have settled or of the suits that have been Preacircstiesniaicts in seasitios i iettatedarnis ' } f MESON SS. 69 started, and those original records are kept by them; so that the so-called plaintiff's Exhibit 3 is merely a compilation of records that are in the original railroads in the first instance. and those records would be the best evidence of what they contain. It would appear to me. That is why I make my objection. Mr. Kelly: Here is an association of all the rail- roads, your Honor, whose very business is the keeping of these records, and it has been testified that they are so kept; and the objection which counsel has made of the lack of personal knowledge doesn’t affect their admissi- bility. It would not be possible to bring in every person who knows about the facts of this instance. Mr. Lumley: I would like to supplement, if I may, (42) my objection, your Honor, which is on an entirely different ground and concerns both Exhibit 3, appar- ently, and Exhibit 4, since Exhibit 4 is supposed to be, for convenience, a compilation of the ecards in Exhibit 3. The Court: Go ahead. [101] Mr. Lumley: Looking at Exhibit 4, I find that there has been a certain number of cases allegedly instituted or handled in Michigan and handled in the State of Illinois. Now, the so-called Michigan cases have been handled by many law offices. As is shown here, Cary & BeGole; Carl Gussin, and so forth. As to that portion of the claim, I make my objection on the grounds that it is not in any way binding upon us. It would not be material in these particular pro- ceedings which are directed to the parties involved. May I show your Honor what I mean? Le eae ASS F SEAN AALS EEL NOSE CERN ac ES: 95 ciate, Wise Bisnis Selita Lag Sabi Ste SiN, oii PAT, 70 Mr. Kelly: I might say to your Honor that that ix only one of our exhibits and it will be extended right down to the present time; and, of course, we do not claim anything for any of the other names on there excepting the ones we are referring to in this case, and we are prepared to demonstrate their participation from the entire exhibits. The Court: I think the exhibit speaks for itself. Naturally, the defendants cannot be bound by the litigation which on the face of this exhibit was not handled by (43) their firm. That is your point, is it not? Mr. Lumley: Yes, your Honor. The Court: I do not think there is any question about that. Mr. Kelly: We claim nothing for that. The Court: Very well, we will receive the evidence under the rule, Section 27.902. Well, go ahead, Mr. Kelly. Mr. Kelly: Plaintiff's Exhibit 4 is entitled: “Settle- ments in F. KE. L. A. Cases Involving Michigan Resi- dents Reported to Claims Research Bureau During Period April 1, 1955, to December 31, 1955.” [102] I think I have picked the wrong exhibit. I would like to straighten it out. We inadvertently picked a compilation covering a period April 1, 1955, to December 31, 1955, and had it marked “Plaintiff's Exhibit 4” as being taken from plaintiff's Exhibit 3 which covers a different period of time. ~ ae 71 I would like to withdraw plaintiff’s Exhibit 4 and have it stricken from the record for the time being and sub- stitute for it and offer in evidence a similar compilation covering the same period as Exhibit 3. The Court: I see no objection to that. Mr. Kelly: Will you mark this, please? (44) (The substituted group of papers referred to was re-marked “Plaintiff’s Exhibit 4”.) Q. (By Mr. Kelly): Now showing you corrected plaintiff’s exhibit 4, Mr. Walsh, I will ask you whether that is a compilation of settlements in F. E. L. A. cases involving Michigan residents reported to the Claims Research Bureau during the period July 1, 1953, to March 31, 1955. A. Yes it is. Q. Was that compilation or schedule prepared by you personally? A. Yes. Q. From the records constituting plaintiffs Exhibit 3 in your office? A. Yes. Mr. Kelly: May it be received in evidence? The Court: I think you better submit it to counsel. Mr. Kelly: Covering a different period of time. Mr. Lumley: May I ask one question in regard to this, your Honor? Q. (By Mr. Lumley): Mr. Walsh— A. Yes. [103] Q. (Continuing):—when did you start this particu- lar organization of which you are a member? _ eae. SSeS oe AS REL A AN aI Sn NAR ee oat ohn Bais: ee ane 72 A. It was begun on July 1, 1953. Q. So that I notice in this exhibit here, the proposed Exhibit 4 that you have, refers to years long prior to the time when you (45) were organized as an association. A. Yes. Q. 1947, 1948, 1949, 1950, 1951, 1952? A. That’s right. Mr. Kelly: What are you referring to, Mr. Lumley? Q. (By Mr. Lumley): Pages 4 to 5. As representing the years before you were even organized at all? A. That's correct. Q. You did’t even keep records yourself of these years, did you? A. Those were reports came to our attention. Q. But you didn’t keep records at all of these years, did you, in the ordinary course of your business, because you were not in business? A. We were not in business at the time. Mr. Lumley: 1 object to that exhibit, your Honor; at least to the extent that T brought ont. Mr. Kelly: Let me ask the witness this further ques- tion: Was the Association of American Railroad organ- ized before 1953? A. Yes, it was. Q. (By Mr. Kelly): When was that organized? A. I believe it was approximately 1921 or 1922. Q. And the keeping of records in your office under the research claims division that you are supervisor of commenced on July (46) 1, 1953? A. Yes. Q. Is that correct? A. That’s right. [104] Q. You have assembled these records since that time as records— Mr. Lumley: I think the questions are very leading, your Honor. Mr. Kelly: All right. The Court: Yes. Rephrase it, Mr. Kelly. Q. (By Mr. Kelly): You have kept records as part of the business of the Association of American Railroads? bureau of which you are an employee as furnished to you by members of the—by railroads constituting the membership of the Association of American Railroads. Is that correct? A. Yes. Q. Ilas it been part of the job to analyze these claims matters in your department? Mr. Lumley: Objected to as leading. Q. (By Mr. Kelly): What I am getting at is: Why did you keep this record for the prior years before the office that you are connected with started? Why did you keep these records? A. They are more or less of historical significance, Mr. Kelly: I think it all goes to the point that we are interested in here, that we are trying to direct the (47) Court’s attention to: that these cases have been going into these offices even before the time when this particular office made the compilations, and they have made this ee eetuiece es 74 compilation from records which have been furnished to them and are equally admissible under the statute. Mr. Lumley: I would like to have the record show that I renew my objection that I originally made to the mis- taken plaintiff’s Exhibit 4 in reference to this Exhibit 4. The Court: Your objection is denied. The exhibit may be admitted and, of course, the weight of it is for the Court. [105] Mr. Kelly: Will you mark this, please? (The group of papers referred to was marked “Plain- tiff’s Exhibit 5.’) Q. (By Mr. Kelly): I will show you plaintiff's Ex- hibit 5, Mr. Walsh, and ask you whether those are the rec- ords of claims F. E. L. A. eases, involving Michigan resi- dents reported to the claims research bureau during the period April 1, 1955, to December 31, 1955. A. Yes, they are. Q. To shorten the record, are all of those records which you have in front of you, including plaintiff’s Ex- hibits 3 and 5 and the others, of a similar nature kept in the regular course of your business? A. Yes, they are. (48) Q. Is it the regular course of your business to keep these records? A. Yes, it is. Mr. Lumley: What years do they cover, Mr. Kelly? Mr. Kelly: April 1, 1955, to December 31, 1955. (To the reporter): Will you mark this, please? (The papers referred to were marked “Plaintiff’s Ex- hibit 6”.) 75 Q. (By Mr. Kelly): Did you also make a schedule of the contents of the cards constituting Exhibit 5, Mr. Walsh? A. Yes, I have. Q. Showing you plaintiff's exhibit 6, is that the schedule? A. Yes, it is. Q. Was that made by you from the records of exhibit 51 A. Yes, it was. Mr. Kelly: Plaintiff’s exhibits 5 and 6 are offered in evidence. [106] Mr. Lumley: I wish to make the same objection to exhibit 5, that it is—I assume it is not the best evidence because you secured it the same way, did you not, Mr. Walsh? A. Yes, that’s true. Mr. Lumley: So I object to exhibit 5 on the ground, first, that it is not the best evidence; secondly, that it is incompetent, irrelevant, and immaterial because it covers a period of time long prior to the issues that are in- volved in (49) this ease. As to Exhibit 6, I might ask one other question of the witness if I may, your Honor. The Court: Go ahead. Q. (By Mr. Lumley): Does this cover or do your records show where the accidents happened in these cases? A. Yes, the records show that. naftintte. ——" ODAC IME A A It tele Als cl DE Mion 5 tet est i iscn dei tind 76 Q. I mean do the cards— A. (Interrupting): Yes, the cards also. Q. And Exhibit 4 and Exhibit 5 reflect where the ac- cidents happened? A. Yes. Q. I note, for instance,—I am just taking a card out of the proposed Exhibit 5, and I see the accident hap- pened January 10, 1954, at Chicago, Illinois. A. May I see the card? Yes, that’s correct; it hap- pened in Chicago. Mr. Kelly: Go ahead, answer the rest of the question. The Witness: But the address of this claimant. is shown as Holland, Michigan, which would make it come within that summary I gave you. Mr. Lumley: I object to plaintiffs Exhibit 6 on the grounds that it does not represent the best evidence of the contents or of the information it purports to contain, {107} (50) and, because it covers certain years far prior to the issues involved in this case, [ contend it is incompetent, irrelevant, and immaterial. The Court: For the same reason as stated with refer- ence to Exhibits 3 and 4, the objection is denied and the exhibits may be admitted. Q. (By Mr. Kelly): We have taken the record down to December 31, 1955. Do you have records with you covering the same mat- ters during the year 1956? A. Yes, I do. 7 Mr. Kelly: Will you mark these, please? (The group of cards referred to was marked “Plain- tiffs Exhibit 7”.) Q. (By Mr. Kelly): Showing vou Plaintiff’s Exhibit 7, T will ask you, Mr. Walsh, whether those are records of F. E. L. A. eases involving Michigan residents re- ported to the claims research bureau during the year 1956. A. Yes, they are. Q. From those records have vou made a schedule containing the information in those records for use here in court? A. Yes, I have. Mr. Kelly: Will you mark this, please? The papers referred to were marked “Plaintiff's Ex- hibit 8”.) (51) Q. (By Mr. Kelly): Showing you Plaintiff's Ex- hibit 8, I will ask you whether that is the schedule of information you have made from the records in Exhibit 7. A. Yes, it is. Q. Covering the calendar year January 1, 1956, to December 31, 1956? A. Yes. [108] Mr. Kelly: Plaintiff's Exhibits 7 and 8 are offered in evidence. Mr. Lumley: I would like to renew my same objection to Plaintiff's Exhibit 7 and Plaintiff's Exhibit 8, and I assume the Court will render the same ruling. The Court: The Court will make the same ruling, and the exhibits may be admitted. 78 Gentlemen, I think we better stop for lunch. At this time this court will stand recessed until one- thirty. (A recess was taken until one-thirty o’clock p. m.) Afternoon Session The Court: Mr. Kelly. You have already been sworn, so just take the stand, ; Mr. Walsh. WALSH, DAVID J., called as a witness on behalf of the plaintiff, resumed the stand and testified further as ; follows: elena ce eee en te ~_ ol to -_— Direct Examination (continued) ; By Mr. Kelly: _ Q. Mr. Walsh, do you also have with you records of _ F. E. L. A. eases involving Michigan residents reported to ‘ your claims research bureau during the year 1957? A. Yes, I do. Mr. Kelly: Will you mark these, please? (The group of cards referred to were marked “Plain- tiff’s Exhibit 9.”) Q. (By Mr. Kelly): I will show you Plaintiff’s Ex- hibit 9 and ask you if these are the records we just re- ferred to. [109] A. Yes, sir. Q. Have you made a schedule of the contents of Ex- hibit 9 for the use of the Court in this case? A. Yes, T have. Mr. Kelly: Will you mark this, please? 79 (The group of papers referred to were marked “Plain- tiff’s Exhibit 10.”) Q. (By Mr. Kelly): Showing you Plaintiffs Exhibit 10, I will ask you whether that is a schedule of settle- ments in F, E. L. A. cases involving Michigan residents reported to the claims research bureau during the period January 1, 1957, to December 31, 1957. Yes, it is. Is that prepared by you? Yes, it was. From Exhibit 9? . we Mr. Kelly: Plaintiff's Exhibits 9 and 10 are offered in evidence. Mr. Lumley: Same objections, your Honor. The Court: Very well, the Court will make the same rulings as on Exhibits 3 to 8 inclusive, and the exhibits will be admitted. Q. (By Mr. Kelly): You have with you the records of F. E. L. A. eases involving Michigan residents re- ported to the claims research bureau during the year 1958? A. Yes, I do. Mr. Kelly: Will you mark these please. (The group of cards referred to were marked “Plain- tiff’s Exhibit 11.”) Q. (By Mr. Kelly): Showing you Plaintiff's Exhibit 11, I will ask (54) you whether those are the records from your office as just referred to for 1958. A. Yes, they are. >Oo>o> tL asta be Nica Sic € Ween 7b, Q. Have you made a schedule of the contents of Ex- hibit 11 for the use in this court? A. Yes, I have. Mr. Kelly: Will you mark these, please? (The papers referred to were marked “Plaintiff’s Ex- hibit 12.”) Q. (By Mr. Kelly): Showing you Plaintiffs Exhibit ; 12, I will ask you if that is a schedule of the information contained in Plaintiff's Exhibit 11. a - A. Yes, it is. Mr. Kelly: Exhibits 11 and 12 are offered. Mr. Lumley: For the record, your Honor, the same objections. The Court: Same objections, and the same ruling by the Court. Let’s understand each other. When we say “same ob- jections” and “same rulings,” it is with reference to these eards and the schedule prepared pursuant thereto. Mr. Lumley: Yes, your Honor. Q. (By Mr. Kelly): Do you have with you the rec- ords of F. E. L. A. eases involving Michigan residents reported to the claims research bureau during the year 1959? (55) A. Yes, I do. Mr. Kelly: Will you mark these, please? (The group of cards referred to was marked “Plain- tiff’s Exhibit 13.’’) Q. (By Mr. Kelly): Showing you Plaintiff's Exhibit 13, I will ask you whether those are the records refer- red to. 81 A. Yes, they are. Q. And whether or not you made a schedule of the information contained in those records for the use of the Court. [111] A. Yes, I have. Mr. Kelly: Will you mark these, please? (The papers referred to were marked “Plaintiff's Ex- hibit 14.”) Q. (By Mr. Kelly): Showing you Plaintiff's Ex- hibit 14, I will ask you whether that is a schedule of settlements in F. E. L. A. cases involving Michigan resi- dents reported to the claims research bureau during the period of January 1, 1959, to December 31, 1959. A. Yes, it is. Q. Made by you from the records contained in Plain- tiffs Exhibit 13? A. Yes. Mr. Kelly: Exhibits 13 and 14 are offered in evidence. Mr. Lumley: Same objections in this case that I (56) made in all the other cases, your Honor, and I want to supplement my objection by including the fact that Ex- hibits 13 and 14 refer to cases handled during the period of January 1, 1959, to December 31, 1959, and T eall your Honor’s attention to the fact that that period of time, I believe, is after the petition in this case, or the bill of complaint, was filed. Mr. Kelly: They are all offered— Mr. Lumley (interrupting): Therefore, I claim that that is incompetent, irrelevant, and immaterial. It is not es 82 covered by the pleadings in this case nor the issues that have been developed in this case. Mr. Kelly: They are all offered as showing a course of conduct on the part of the defendants, persisting in the face of this pending injunction suit against them. The Court: The exhibits will be admitted. The objec- tion is denied. Q. (By Mr. Kelly): Do you have with you records of your office of F. E. L. A. cases involving Michigan residents reported to the claims research bureau during the year 1960? 12 A. Yes, I have. Mr. Kelly: Will you mark these, please? (The group of cards referred to was marked “Plain- tiff’s Exhibit 15.”) Q. (By Mr. Kelly): Showing you Plaintiff’s Exhibit 15, [I will ask you if those are the records just referred to. (57) A. Yes, they are. Q. Have you made a schedule of the information con- tained in Plaintiff’s Exhibit 15? A. Yes, I have. Mr. Kelly: Will you mark these, please? eA Nee EY Wadniel ALIS on A aR, 5 RN RnB -— (The papers referred to were marked “Plaintiff’s Ex- hibit 16.”) Q. (By Mr. Kelly): Now, showing you Plaintiff’s Exhibit 16, I will ask you whether that is the schedule of settlements in F. E. L. A. cases involving Michigan resi- dents reported to the claims research bureau during the period January 1, 1960, to December 31, 1960, taken from the records constituting Plaintiffs Exhibit 15. ——— 83 A. Yes, it is. Mr. Kelly: Exhibits 15 and 16 are offered in evidence. Mr. Lumley: Same objection, your Honor, including the further objection that it covers a period of January 1, 1960, to December 31, 1960, which is definitely much later than the issues that were created here in the suit. The Court: In other words, the same objections as to Exhibits 13 and 14. The objection will be denied and the exhibits admitted. Q. (By Mr. Kelly): So that the record will be com- plete, as T (58) understand it, Mr. Walsh, is it your tes- timony that these card records, Plaintiff's Exhibits 3, 5, 7, 9, 11, 13 and 15, are records in the office of the Asso- ciation of American Railroads kept in the regular course of business? [113] A. Yes, they are. Mr. Lumley: That is repetitious. That has all been asked and answered. Mr. Kelly: If it has, I just wanted to make sure it is. The Court: I don’t recall. Go ahead and answer the question. I don’t recall if it was. Q. (By Mr. Kelly): The answer is yes? A. The answer is yes. Q. Whether it is the regular course of business of the Association of American Railroads to keep such records. A. Yes, it is. Q. So kept under your immediate supervision? A. Yes, foanenciatsh’ de a * 2 84 Q. The corresponding exhibits of the schedules taken from those records were made by you personally? A. Yes, they were. Q. From those records? A. That’s correct. Q. Now, I will ask you, Mr. Walsh, whether or not you have made (59) a summary of the cases and settle- ments from those records in your office during the pe- riod July 1, 1953, to December 31, 1960? Yes, I have. Was that made by you personally? Yes, it was. From your records in your office? POobO> , * Mr. Kelly: Will you mark this, please? (The paper referred to was marked “Plaintiff’s Ex- hibit 17.”) Q. (By Mr. Kelly): That is, the re [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0256%3A1. Public record. Not legal advice.