Duncan v. Thompson

• Decision Date: 14 December 1940
• Docket Number: No. 6194.,6194.
• Citation: 146 S.W.2d 112
• Parties: DUNCAN v. THOMPSON.
• Court: Missouri Court of Appeals

146 S.W.2d 112

DUNCAN v. THOMPSON.

No. 6194.

Springfield Court of Appeals. Missouri.

December 14, 1940.

Rehearing Denied December 31, 1940.

Appeal from Circuit Court, Texas County; William E. Barton, Judge.

Action by Barker Duncan against Guy A. Thompson, trustee of the Missouri Pacific Railroad Company, for injuries alleged to have been suffered by plaintiff as an employee of the defendant through the defendant's negligence. From a judgment for the plaintiff, the defendant appeals.

Reversed with directions.

Thos. J. Cole, of St. Louis, Hiett, Covert & Hiett, of Houston, and David E. Blair, of Joplin, for appellant.

Sizer & Myres, of Monett, and John Moberly, of Houston, for respondent.

TATLOW, Presiding Judge.

This is an action for injuries alleged to have been suffered by the respondent (plaintiff below), as an employee of the appellant (defendant below), through the appellant's negligence. The parties will be referred to herein as plaintiff and defendant.

The suit was filed in the Circuit Court of Newton County, Missouri, on April 4, 1938, and was tried on change of venue in the Circuit Court of Texas County, Missouri, on March 7, 1940. The accident occurred on April 10 1936.

The petition alleges, among other things:

"Plaintiff states that on and prior to the 10th day of April, 1936, he was in the employ of defendant as a shop laborer, in defendant's roundhouse and turntable at Nevada, Missouri; that plaintiff's duties required him to assist in repairing and servicing and keeping in order the defendant's locomotives and other equipment in defendant's roundhouse at Nevada, Missouri; that his duties required him to service and assist in servicing defendant's interstate and intrastate engines during their run and at the end of their runs. Plaintiff states that as such employee, he does not know whether he was, at the times herein mentioned, engaged along with the defendant in interstate or intrastate commerce, but states that it was the one or the other, but he verily believes that it was an interstate rather than intrastate, and if in interstate, the relationship between plaintiff and defendant was, and is governed by the Federal Employers' Liability Act [45 U.S. C.A. § 51 et seq.], passed and approved by the general Congress of the United States, together with all the amendments thereof; that if in intrastate, his cause of action is governed by the State compensation laws of Missouri.

"Plaintiff states that if as such interstate employee, the defendant owed him the duty to exercise ordinary care toward him, and to furnish him with a reasonably safe place to work, and to furnish him with tools and appliances so as to make the performances of his duties reasonably safe, and to furnish employees who would not negligently injure plaintiff; that the defendant owed the duty to plaintiff to exercise ordinary care to adopt a method of performing its works in servicing the engines reasonably safe method; that defendant's foreman over the plaintiff owed the duty to exercise ordinary care in directing and ordering plaintiff about his work; that defendant owed the duty to warn plaintiff and other employees working on engines on the turntable at the roundhouse at Nevada, when such turntable was going to be moved."

Said petition contained five specific allegations of negligence, lettered from (a) to (e), one of said allegations being as follows: "(c) In that the defendant, his agents, servants, and employees negligently and carelessly, without warning, contrary to a long established custom to warn men on the engine when it was to be moved, moved the turntable and engine upon which plaintiff was working, and caused plaintiff to be thrown from the engine to the bottom of the turntable pit."

It then alleged the injuries suffered by the plaintiff and prayed judgment for $37,500.

The amended answer on which the case was tried, admitted that the Missouri Pacific Railroad was duly incorporated and that the defendant Guy A. Thompson was its duly appointed and acting trustee; and denied each and every other allegation in said petition contained. The amended answer also contains the defense that the plaintiff assumed the risk and that his injuries, if any, were caused by his own negligence. Said answer also contains the following:

"Further answering said petition, defendant states and alleges that on or about August 13, 1937, and after the alleged injuries were received by the plaintiff and before this case or action was commenced by plaintiff, the defendant paid to the plaintiff the sum of six hundred dollars ($600.00), and, in consideration of such payment to him of said sum of $600, plaintiff then and there and on or about August 13, 1937, agreed with defendant by his written agreement then and there executed by plaintiff and delivered by him to defendant, as follows:

"`In consideration of said payment of $600.00, I agree with said Trustee that I will endeavor, in good faith, to adjust and settle any claim I may have for my injuries without resorting to litigation, but I agree that if my claim is not so adjusted, and I elect to bring suit, I will first return said sum of $600.00 to said Trustee and said return shall be a prerequisite to the filing and maintenance of any such suit.'

"Defendant further states and alleges that plaintiff, before beginning or commencing this suit and action, did not tender or pay back to defendant, or any one for him, said sum of $600 and that this suit and action have been begun and commenced by plaintiff without the prerequisite return to defendant trustee of said sum of $600, and plaintiff could not and cannot lawfully file or maintain this suit and action against defendant, and this action is premature and should be dismissed by the Court."

It contains also the following: "Further answering said petition, defendant states that plaintiff is seeking to recover a verdict and judgment against defendant for damages under the Federal Employers' Liability Act and defendant states that recovery and enforcement of any such judgment in this case or action, if any, against defendant, and under the facts in evidence and as alleged in said petition, would deprive defendant of a right, privilege and immunity to which defendant is entitled and which defendant should be permitted to enjoy under said Federal Employers' Liability Act, as set forth and defined in Title 45 of the United States Code Annotated, and particularly under sections 51, 52, 53 and 54, thereof."

Plaintiff was permitted to dictate a general denial of defendant's amended answer into the record.

A photostatic copy of the agreement, which contains the paragraph pleaded in the answer, was offered as a part of plaintiff's case, as was also a sight draft, dated August 13, 1937, drawn by defendant's claim agent, payable to the order of plaintiff, for $600, which bears plaintiff's endorsement and also the endorsement of the "Hurlbut Und. Co., Newell G. Hurlbut", and shows that the same was paid on September 14, 1937, to the plaintiff's assignee.

At the close of plaintiff's case, defendant requested the court to instruct the jury that the contract was a complete bar to the further prosecution of the action, and to withdraw the suit from further consideration by the jury, and to dismiss the same "without prejudice to the plaintiff". This the court refused to do and exceptions were duly saved.

At the close of all of the evidence in the case, the defendant requested the court to instruct the jury as follows: "Now at the conclusion of all of the evidence in this case, the Court instructs the jury that, under the law and all of the evidence in this case, plaintiff is not entitled to recover judgment against the defendant, and the verdict of the jury will be in favor of the defendant" which instruction was by the court refused; to which action, ruling and refusal of the court to give said instruction to the jury, the defendant trustee, by his counsel, then and there duly excepted and at the time saved his exceptions.

At the instance of the plaintiff the court gave the following instruction No. 2:

"The Court instructs the jury that the defendant has set up in his Answer as a defense to plaintiff's recovery a loan or partial settlement agreement, whereby plaintiff secured $600, pending further negotiations for a settlement of the plaintiff's cause of action, and which sum of money was to be returned to the defendant before instituting any suit.

"Therefore, if you shall find and believe from the greater weight or preponderance of the testimony that plaintiff was induced to execute and sign such instrument, by defendant's claim agent, or agents, representing to him that his cause of action was governed by the compensation laws of the State of Missouri, if you so find, and if you further find that the defendant, his agents, servants, and employees further represented to the plaintiff that the said payment of $600 was only a partial settlement of plaintiff's cause of action before the Missouri Workmen's Compensation Commission, if you so find, and that such representations were false and untrue, and were known to the defendant to be false and untrue, if you so find, and that plaintiff relied upon said representations as being true, and was thereby induced to sign said instrument, if you so find, then such instrument is no defense to this cause of action, but if you find the issues for the plaintiff in a sum greater than $600, you should give the defendant credit for the sum of $600, thereby reducing the amount of his recovery, if any, to the extent of $600, with interest thereon at the rate of six per cent (6%) from the date of its receipt".

To which action of the Court in giving said instruction to the jury on behalf of the plaintiff, the defendant trustee, by his counsel, then and there duly objected and excepted and at the time saved his exceptions.

The court refused to give defendant's requested instruction No. D. R. G., as...