Newcomb v. Payne, No. 22865.

CourtMissouri Supreme Court
Writing for the CourtJames T. Blair
Citation250 S.W. 553
Docket NumberNo. 22865.
Decision Date06 April 1923
PartiesNEWCOMB v. PAYNE, Federal Agent.
250 S.W. 553
NEWCOMB
v.
PAYNE, Federal Agent.
No. 22865.
Supreme Court of Missouri, Division No. 1.
April 6, 1923.

Appeal from Circuit Court, Pettis County; Hopkins B. Shain, Judge.

Action by Laura E. Newcomb, administratrix, against John Barton Payne, Federal Agent. Judgment for plaintiff, and defendant appeals. Reversed.

J. W. Jamison, of St. Louis, Montgomery & Rucker, of Sedalia, and Carl S. Hoffman, of St. Louis, for appellant.

Sizer & Gardner, of Monett, and R. S. Robertson and Paul Barnett, both of Sedalia, for respondent.

JAMES T. BLAIR, J.


January 5, 1918, H. W. Newcomb, then in the employ of the Director

250 S.W. 554

General as a freight conductor, cell into a cinder pit at Parsons, Kan., with resulting injuries. After a series of transactions whereby he received numerous payments, he began this action for damages on December 30, 1919. The answer set up a release, and asked the reformation of certain documents pertaining thereto. The reply pleaded fraud in the procurement of the release. The cause was heard in equity, and a judgment rendered for respondent for $10,390.50. This appeal followed.

The petition alleged the incorporation of the M. K. & T. Ry. Company and its ownership of lines in several states, and that it was at all times mentioned being run and operated by the Director General of Railroads as a common carrier; that Charles E. Schaff previously had been appointed receiver for the company and was acting as such under authority of the Federal Court, but that the whole property was on January 5, 1918, and for a long time thereafter, "run, operated, managed, maintained, and controlled" by the Director General of Railroads acting under appointment by the President by authority of "acts of Congress placing the property of said railway company under federal control"; that the act of Congress of February 28, 1920, terminated federal control of railroad properties, but authorized the appointment of a federal agent against whom suits arising out of federal operation might be brought, and Walker D. Hines was appointed such agent. The petition then describes the yards at Parsons and the cinder pit and conditions surrounding it at the time Newcomb fell into it, and alleges his fall was due to the negligence of the Director General, in several respects, specified in detail. The injuries alleged to have been received by appellant at the time, and the disabilities thereafter resulting, are described with much particularity. The prayer is for damages in the sum of $50,000.

The answer consisted of a general denial and a plea of release. The documents, relied upon to constitute the release, purported to be made to Charles E. Schaff, receiver. The answer contained averments to the effect that Schaff was the agent of the Director General, and acted in all respects in the premises in his behalf. Ail the facts in connection with the release and subsequently executed documents are set up in detail, as well as the payments to Newcomb thereunder. The prayer is that the release and a certain receipt be reformed and enforced. A second release, or a ratification of the first, is also pleaded, with like prayer nor reformation and enforcement. It is also averred that by reason of another arrangement, entered into in February, 1919, Newcomb was paid $75 per month under an understanding that this was to continue during federal control, or until Newcomb was able to resume work as a freight conductor, but that this wars not done by way of abandonment of the release previously made; that Newcomb, by accepting the $75 per month for approximately a year and a halo, again ratified and confirmed the settlement made and pleaded.

The reply denies the new matter in the answer. It is then alleged that, prior to January 29, 1918, Dr. Yancey, appellant's physician, had advised Newcomb that he would suffer no permanent injuries and would soon be able to return to work; that on January 29, 1918, Newcomb was sick and suffering greatly from injuries received from his fall; that his sight and hearing were much affected, and this was known to appellant's claim agent; that this claim agent represented to Newcomb that he had been told by Dr. Yancey that he (Newcomb) would soon be well and be able to return to his work; that this was false and made to induce Newcomb to compromise and settle his claim for damages; that Yancey's representations to Newcomb were made for the same purpose and were likewise false; that owing to Yancey's concealment from Newcomb of his real condition, the latter was wholly unaware of it; that Newcomb was deceived by these representations; that appellant's claim agent further represented to Newcomb that until he was able to resume his position his wages would be paid him, and then stated that his wages for January, 1918, and damage to his clothing would then be paid, and asked him to sign a receipt therefor, and that "relying upon said Thickett's statements and representations and representations of defendant's said doctor, Yancey, and fully believing in the honesty and integrity of said Thickett and said Dr. Yancey, and fully believing his said wages would be paid him each month till he should be able to resume his duties, be signed the paper which Thickett presented to him as a receipt; that plaintiff did not at the time have his glasses with him, and on account of "the swollen condition of his eyes, due to his injuries, he was unable to see what he signed"; that if the instrument he signed is the release pleaded, the "same was obtained by fraud and deceit of defendant, his agents, servants, and employés, and through the false statements and representations on the said Thickett and the said Yancey, under the circumstances aforesaid."

The reply further alleges that Newcomb, about March 1, 1918, attempted to get Thickett, the claim agent, to pay him his February wages, and that on July 2, 1918, Thickett paid him $200, "stating and representing at the time that same was for plaintiff's wages during the month of February, 1918"; that on and prior to July 2, 1918, Thickett reiterated his

250 S.W. 555

representations that Yancey had said he would soon recover and be able to continue his run, knowing that they were false and that he was deceiving him (Newcomb) thereby, and that he was in a serious condition, and "further representing that he was paying him $200 for his wages for February, 1918, the said A. R. Thickett did on July 2, 1918, pay plaintiff $200 and at the time stated it would be necessary for him to sign a receipt therefor, and presented to plaintiff an instrument which he stated to plaintiff was a receipt; that plaintiff was at the time suffering and his eyesight was still greatly affected, and that he was unable to see or read without the use of glasses, and was very much fatigued and tired after having returned from a long trip"; that he believed and relied upon Thickett's representations concerning his (Newcomb's) condition, and that what he was signing was a receipt for his February wages, and signed the instrument believing and thinking it was merely a receipt for such wages; whereas all lose representations were false; that he (Newcomb) on July 2, 1918, neither knowingly ratified nor knew that he had signed any previous release.

It is further alleged that subsequent to the "execution of said first purported release, which was obtained by fraud, and to the execution of the purported receipt for the payment of the $200 aforesaid, which defendant pleads was paid as a gratuity," he (Newcomb) represented to appellant that he was willing to perform lighter duties if thereby he could preserve his seniority rights as an employé; that for a short time lie was transportation inspector, but denies that it was thereby recognized that his claims for damages had beer settled and adjusted, and alleges that at no time was it claimed by appellant that a release had been signed; and therefore denies that the acceptance of such employment ratified the alleged release.

It is further admitted that appellant paid to Newcomb "$75 per month, under an understanding entered into in February, 1919; that same was to be paid plaintiff and applied on his wages during the time plaintiff was sick and unable to perform his duties as a conductor, as a result of said injuries, and such payments were to continue until plaintiff was able to run a train as conductor thereof; and that plaintiff was to perform such other work as his health and condition would permit; and that if the amount earned by such work did not equal the full amount or wages plaintiff was earning before his injuries, plus such increases as have been granted, defendant would pay plaintiff the difference;" that he (Newcomb) accepted the payments of $75 per month until he discovered that appellant was attaching other conditions "to the payment of the $75 vouchers," whereupon he discontinued cashing such vouchers; that he accepted the $75 per month upon the conditions stated and upon the representations that appellant would "make full and adequate settlement with plaintiff for his injuries as soon as same could be ascertained;" that all payments accepted were accepted on this understanding; that this belief was induced by the false representations to the effect stated made to him by appellant's agents while he was "sick in pain and distress" and suffering from enumerated disorders, which affected him both bodily and mentally, "and at a time when he was suffering from extreme nervousness and was unfit to transact business along lines in which he was not experienced, and was a victim of artifice and cunning of the experienced agents of defendant." The reply further alleges that during all the negotiations from January 29, 1918, until this suit was begun "defendant so conducted himself as to lead plaintiff to believe that they were not claiming that any final settlement had been made, * * * or that any final and complete release had been signed...

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7 practice notes
  • Boillot v. Income Guar. Co., No. 19139.
    • United States
    • Court of Appeal of Missouri (US)
    • May 23, 1938
    ...v. Trible Co., 62 S.W. (2d) 756; Massey-Harris Harvester Co. v. Federal Reserve Bank of Kansas City, 48 S.W. (2d) 158; Newcomb v. Payne, 250 S.W. 553; Petrie v. Reynolds, 219 S.W. 934; Elliott v. Delaney, 217 Mo. 14; Weissenfels v. Cable, 208 Mo. 515; Algeo v. Algeo, 207 S.W. 942; Advance T......
  • Boillot v. Income Guar. Co., No. 19236.
    • United States
    • Court of Appeal of Missouri (US)
    • May 23, 1938
    ...v. Trible Co., 62 S.W. (2d) 756; Massey-Harris Harvester Co. v. Federal Reserve Bank of Kansas City, 48 S.W. (2d) 158; Newcomb v. Payne, 250 S.W. 553: Petrie v. Reynolds, 219 S.W. 934; Elliott v. Dulaney, 217 Mo. 14; Weissenfels v. Cable, 208 Mo. 515; Algeo v. Algeo, 207 S.W. 942; Advance T......
  • Vondera v. Chapman, No. 38774.
    • United States
    • United States State Supreme Court of Missouri
    • June 5, 1944
    ...of which the plaintiff was not aware when the release was signed, has no effect in removing the bar of the release. Newcomb v. Payne, 250 S.W. 553; Cory v. Chicago, B. & K.C.R. Co., 100 Mo. 282, 13 S.W. 346; Hogard v. Kansas City Rys. Co., 202 S.W. 431; Forbes v. St. Louis, I.M. & S.R. Co.,......
  • Schubert v. St. Louis Public Service Co., No. 40790.
    • United States
    • United States State Supreme Court of Missouri
    • October 11, 1948
    ...and unknown injuries. The alleged fact that injuries developed subsequently did not affect the validity of the release. Newcomb v. Payne, 250 S.W. 553; Hogard v. Kansas City Rys. Co., 202 S.W. 431; Vondera v. Chapman, 352 Mo. 1034, 180 S.W. (2d) 704. (4) Plaintiff's assertion that she could......
  • Request a trial to view additional results
7 cases
  • Boillot v. Income Guar. Co., No. 19139.
    • United States
    • Court of Appeal of Missouri (US)
    • May 23, 1938
    ...v. Trible Co., 62 S.W. (2d) 756; Massey-Harris Harvester Co. v. Federal Reserve Bank of Kansas City, 48 S.W. (2d) 158; Newcomb v. Payne, 250 S.W. 553; Petrie v. Reynolds, 219 S.W. 934; Elliott v. Delaney, 217 Mo. 14; Weissenfels v. Cable, 208 Mo. 515; Algeo v. Algeo, 207 S.W. 942; Advance T......
  • Boillot v. Income Guar. Co., No. 19236.
    • United States
    • Court of Appeal of Missouri (US)
    • May 23, 1938
    ...v. Trible Co., 62 S.W. (2d) 756; Massey-Harris Harvester Co. v. Federal Reserve Bank of Kansas City, 48 S.W. (2d) 158; Newcomb v. Payne, 250 S.W. 553: Petrie v. Reynolds, 219 S.W. 934; Elliott v. Dulaney, 217 Mo. 14; Weissenfels v. Cable, 208 Mo. 515; Algeo v. Algeo, 207 S.W. 942; Advance T......
  • Vondera v. Chapman, No. 38774.
    • United States
    • United States State Supreme Court of Missouri
    • June 5, 1944
    ...of which the plaintiff was not aware when the release was signed, has no effect in removing the bar of the release. Newcomb v. Payne, 250 S.W. 553; Cory v. Chicago, B. & K.C.R. Co., 100 Mo. 282, 13 S.W. 346; Hogard v. Kansas City Rys. Co., 202 S.W. 431; Forbes v. St. Louis, I.M. & S.R. Co.,......
  • Schubert v. St. Louis Public Service Co., No. 40790.
    • United States
    • United States State Supreme Court of Missouri
    • October 11, 1948
    ...and unknown injuries. The alleged fact that injuries developed subsequently did not affect the validity of the release. Newcomb v. Payne, 250 S.W. 553; Hogard v. Kansas City Rys. Co., 202 S.W. 431; Vondera v. Chapman, 352 Mo. 1034, 180 S.W. (2d) 704. (4) Plaintiff's assertion that she could......
  • Request a trial to view additional results

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