Skinner v. Davis

• Decision Date: 23 January 1926
• Docket Number: 24713
• Citation: 280 S.W. 37,312 Mo. 581
• Parties: WILBER E. SKINNER v. JAMES C. DAVIS, Director-General of Railroads, Etc., Appellant
• Court: Missouri Supreme Court

280 S.W. 37

312 Mo. 581

WILBER E. SKINNER v. JAMES C. DAVIS, Director-General of Railroads, Etc., Appellant

No. 24713

Supreme Court of Missouri

January 23, 1926

Appeal from Jackson Circuit Court; Hon. O. A. Lucas, Judge.

Affirmed.

W F. Evans, Guthrie & Conrad and Hale Houts for appellant.

(1) The action is against the Government of the United States and cannot be maintained without the Government's consent. Mo. Pac. R. Co. v. Ault, 256 U.S. 554. (2) The War Risk and Vocational Training Acts constituted an exclusive remedy to plaintiff. 38 Stat. 711, ch. 293; 41 Stat. 158, ch 12; Mason v. Hines, 87 So. 603; Sidel v Director General, 89 So. 308; Sandoval v. Davis, 278 F. 968. (3) Plaintiff's action was barred by Circular No. 4. 40 Stat. 451, ch. 25; Alabama Ry. Co. v. Journey, 257 U.S. 111; Mo. Pac. Ry. Co. v. Ault, 256 U.S. 544; Preston v. U. P. Ry. Co., 239 S.W. 1084; Sandoval v. Davis, 278 F. 971. (4) The court should have directed a verdict for defendant because of plaintiff's application for and acceptance of compensation. (a) His election to take compensation barred this action. 38 Stat. 711, ch. 293; 39 Stat. 742; Dahn v. Davis, 258 U.S. 421; Sandoval v. Davis, 288 F. 66; Sandoval v. Davis, 78 F. 968; 42 Stat. 147, ch. 57. (b) Plaintiff was not relieved of his election by reason of the tender made to and accepted by the Veterans' Bureau, since there is no provision of law for tender or authorizing the Veterans' Bureau to receive or accept tender. State ex rel. v. Hayes, 52 Mo. 580; Pierce v. United States, 7 Wall. 666; Whiteside v. United States, 93 U.S. 447; People v. Phoenix Bank, 24 Wend. (N. Y.) 431. (5) Acceptance of vocational training by plaintiff constituted an election by him which barred this action. 41 Stat. 158, ch. 12; Cases cited under (a) supra. (6) The verdict was excessive. Fitzsimmons v. Mo. Pac. Ry. Co., 294 Mo. 579; Hanson v. Kansas City, 277 Mo. 443; Rogles v. United Rys., 232 S.W. 98; Rigg v. Railroad, 212 S.W. 880; Parles v. United Rys., 239 S.W. 1057.

Hogsett & Boyle for respondent.

(1) The Government has consented to be sued in connection with its operation of the carriers by all persons who might have sued the carriers themselves if they had not been under Federal control. Federal Control Act, 40 Stat. 451, 456, sec. 10; Mo. Pac. Ry. Co. v. Ault, 256 U.S. 554; Director General v. Kastenbaum, 263 U.S. 25; Transportation Act 1920, 41 Stat. 461, sec. 206. (2) The rights given to soldiers under the Federal Control and Transportation Acts are not affected by the War Risk Insurance and Vocational Rehabilitation Acts and the latter acts do not provide an exclusive remedy (or indeed any remedy at all in a proper sense of that term) for a soldier injured by a tort committed by a carrier under Federal control. Dahn v. Davis, 258 U.S. 421; Midwest National Bk. & Trust Co. v. Davis, 233 S.W. 406. (3) Plaintiff's action is not barred by Circular Number Four. (a) This circular is not a public document but merely a private inter-departmental order fixing an inter-departmental policy. (b) The circular does not attempt to take away the right of an injured soldier to sue the Director-General. (c) The circular has no retroactive effect. Bryson v. Hines, 268 F. 298; U.S. F. & G. Co. v. United States to use, 209 U.S. 314. (d) Congress could not delegate to the President or the Director-General the power to take away a right of action, because such a power is a legislative power, and Congress cannot delegate its legislative powers. Sec. 1, Art. I, Constitution of United States; Stanley v. Schwalby, 162 U.S. 255; Field v. Clark, 143 U.S. 692; Hurwitz v. United States, 280 F. 111; Morrill v. Jones, 106 U.S. 466; United States v. Eaton, 144 U.S. 677; Stratton v. Oceanic Steamship Co., 140 F. 829; United States v. Hoover, 133 F. 950; United States v. Moody, 164 F. 269; United States v. Grimaud, 220 U.S. 506; United States v. United Verde Copper Co., 196 U.S. 207; United States v. 11,150 Pounds of Butter, 195 F. 657; St. Louis Packing Co. v. Houston, 215 F. 553; United States v. Symonds, 120 U.S. 49; Williamson v. United States, 207 U.S. 425; Leecy v. United States, 190 F. 289. (e) Plaintiff's cause of action had already accrued at the time this circular was issued and an attempt to take it away would deprive him of property without due process of law in violation of the Fifth Amendment of the Constitution of the United States. (f) Any rights taken from plaintiff by Circular No. 4 were restored by the Transportation Act of 1920. 41 Stat. 461. (4) Plaintiff's acceptance of compensation constitutes no bar to this action. (a) The doctrine of election of remedies has no application to this case. 20 C. J. 6, par. 7; Reynolds v. Union Station Bank, 198 Mo.App. 323; Zimmerman v. Harding, 227 U.S. 493; Steinbach v. Murphy, 143 Mo.App. 537; Kaplan v. Myers, 241 F. 459; Sweet v. Bank, 69 Kan. 641. That doctrine has application only where two or more remedies are provided which are inconsistent. The provisions of the War Risk Insurance Act and the Federal Control Act are different, but not inconsistent. Authorities supra; 20 C. J. pp. 11, 12, 14; Sec. 300, War Risk Insurance Act as amended, 40 Stat. 405, 41 Stat. 373, 42 Stat. 153. Even if it be said that these acts afforded plaintiff two remedies (which we deny), the remedies are not inconsistent; and this being true, it is not the pursuing of the remedy but the satisfaction of the claim, which constitutes the bar; and when the money received in satisfaction is tendered back and accepted, the bar is removed. 20 C. J. p. 6, par. 7; Sweet v. Bank, 69 Kan. 641; Weber v. Railway Co., 278 F. 258. (b) The Director of the Veterans' Bureau had full authority to accept the tender made by the plaintiff. 42 Stat. 148; Silberschein v. United States, 45 S.Ct. 69; United States v. Hughes, 11 How. 552; Wells v. Nickles, 104 U.S. 444; In re Neagle, 39 F. 863, l. c. 851; United States v. MacDaniel, 7 Pet. 14; Osborne v. U.S. Bank, 9 Wheat. 865; United States v. San Jacinto Tin Co., 125 U.S. 278. (c) Plaintiff could maintain this action even though he had not tendered back the compensation he received, because the payments provided in the War Risk Insurance Act are pure gratuities designed to take the place of pensions under former laws. Silberschein v. United States, 45 S.Ct. 69; United States v. Hall, 98 U.S. 343; Frisbie v. United States, 157 U.S. 160; Sec. 312, War Risk Insurance Act, 40 Stat. 613; Sec. 301, War Risk Insurance Act, 41 Stat. 371; Par. 10, sec. 302, War Risk Insurance Act, 41 Stat. 371, 374; Sec. 300, War Risk Insurance Act, 42 Stat. 147, 148; Secs. 8933, 8934, U.S. Comp. Stat. 1916; Cunnien v. Superior Iron Works Co., 184 N.W. 767. (5) The acceptance by plaintiff of benefits under the Vocational Rehabilitation Act constitutes no bar to this action. Such benefits are likewise gratiuties. See authorities supra, 40 Stat. 617; 41 Stat. 158.

Higbee C. Railey, C., not sitting.

OPINION

HIGBEE

The statement by appellant's counsel is as follows:

"Referring to the parties as they appeared in the trial court, plaintiff sued defendant, Director-General of Railroads, as agent, and also the St. Louis-San Francisco Railway Company, for personal injuries received by him in a train wreck on the corporation's line of railroad near Marshfield, Missouri, on September 17, 1918, while the line was under Federal control and operated by the Director-General of Railroads. Prior to the trial the cause was dismissed as to the corporation, leaving the Director-General of Railroads, as agent, sole defendant. There was a verdict and judgment for ten thousand dollars [this should read $ 20,000] and, following the overruling of his motion for a new trial, defendant appealed.

"The train on which plaintiff was riding was transporting troops from a training camp in Texas to Camp Merritt, New Jersey, which was a port of embarkation for overseas service. The wreck was caused by the collision of the troop train with a freight train.

"Plaintiff's petition alleges that he was a soldier, as aforesaid, and a passenger upon the train in question; that the train was operated by the Director-General of Railroads and that through the negligence of defendant and his employees, the train was suffered and permitted to come into collision with the freight train, thereby injuring plaintiff as set out in some detail.

"(1) Defendant's answer set up that the acts of Congress, known as War Risk Insurance Act and Vocational Rehabilitation Act, with their various amendments, constituted an exclusive remedy to plaintiff for the injuries he sustained.

"(2) That plaintiff was precluded from bringing any action against the Director-General of Railroads by Circular Number 4, issued by William G. McAdoo, Director-General, John Barton Payne, General Counsel of the Director-General, and by the President of the United States, through the Director-General and General Counsel, which provided that no claims should be brought against or entertained by the Director-General of Railroads or Railroad Administration for injuries to soldiers of the United States employed in the active service, remitting soldiers so employed to remedy under the War Risk Insurance Act.

"(3) That plaintiff had applied for, had been awarded, and had accepted compensation under the War Risk Insurance Act, and also vocational training, support, compensation and maintenance under the Vocational Rehabilitation Act on account of the injuries which he received, and that by reason of such facts he was precluded from maintaining the action.

"Plaintiff by reply denied that the acts of Congress in question constituted exclusive remedies, admitted the issuance of Circular Number 4 by General Counsel for the Director-General of Railroads, and set up that it was issued...