Skinner v. Davis

• Decision Date: 19 March 1924
• Docket Number: No. 24713.,24713.
• Citation: 271 S.W. 992
• Parties: SKINNER v. DAVIS, Director General of Railroads, etc.
• Court: Missouri Supreme Court

271 S.W. 992

SKINNER v. DAVIS, Director General of Railroads, etc.

No. 24713.

Supreme Court of Missouri, Division No. 2.

March 19, 1924.

Rehearing Denied April 9, 1925.

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

Action by Wilber E. Skinner against James C. Davis, Director General of Railroads and Agent designated by the President under Transportation Act of 1920 (U. S. Comp. St. Ann. Supp. 1923, § 10071¼cc). Judgment for plaintiff, and defendant appeals. Affirmed.

W. F. Evans, of St. Louis, and H. S. Conrad, L. E. Durham, Hale Flouts, and Guthrie & Conrad, all of Kansas City, for appellant.

Hogsett & Boyle, of Kansas City, for respondent.

HIGBEE, C.

The statement by appellant's counsel is as follows:

"Referring to the parties as they appeared in 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, Mo., 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, N. J., 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 (U. S. Comp. St. § 514a et seq.) and Vocational Rehabilitation Act (U. S. Comp. St. Ann. Supp. 1919, § 3078½a et seq.; U. S. Comp. St. Ann. Supp. 1923, § 3078½b et seq.), 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 No. 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 the 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 No. 4 by General Counsel for the Director General of Railroads, and set up that it was issued after the accrual of plaintiff's cause of action; denied the right of the President of the United States, Director General of Railroads or his General Counsel to promulgate the circular. The reply admitted the receipt from the government of the compensation in the sum of some six hundred dollars (this should read $13.50), and set up that plaintiff applied for and received it under advice that such action would not interfere with the prosecution of a suit against Director General of Railroads; that at a time after bringing suit he tendered back the same to the government, and his tender had been accepted, and he had thereby been placed in the same position that he occupied before applying for and receiving the compensation. The reply further admitted receipt by the plaintiff of vocational training, support, and maintenance, but denied that plaintiff was thereby precluded from maintaining the action in question.

"The wreck occurred about 8 o'clock in the evening. Plaintiff was riding on a tourist Pullman, which was first car back of engine. Plaintiff was making preparation for going to bed. Plaintiff was rendered unconscious by the collision but regained consciousness while at the scene of the wreck and was taken to what is known as the Frisco Hospital at Springfield. Mo., a few miles from the point at which wreck occurred.

"Plaintiff remained in hospital at Springfield for about 10 days and was then taken, with others who were injured, to the Government Hospital at Fort Des Moines, Iowa, where he remained some 12 months. Following his discharge he applied for and received compensation under the War Risk Insurance Act, the amount received was only $13.50, due to the fact that compensation was refunded by vocational training. April 18, 1921, this suit was brought. Thereafter and on September 17, plaintiff, by letter, tendered to the United States Veterans' Bureau, at Washington, D. C., the amount of the compensation which he had received under the War Risk Insurance Act. The Veterans' Bureau, by letter November 1, 1921, acknowledged receipt of the amount of compensation received by him and advised him that his award was automatically closed. The evidence above referred to in respect to the return of the amount of compensation and correspondence in respect thereto between plaintiff and Veterans' Bureau was admitted over defendant's objection on the ground that no tender or acceptance of tender was authorized by law, and no tender was binding upon defendant.

"Soon after plaintiff' had begun to receive compensation he applied to the government for vocational training, which was allowed him and which he began to receive in January, 1920. When he began vocational training the installments of compensation under the War Risk Insurance Act automatically ceased, as he understood would be the case, but were subject to be reinstated at the completion of vocational training. The training consisted of a teacher's agricultural course at Ft. Collins, Colo. The government supplied books and tuition of the value of about $40 a year and maintenance at the rate of $100 a month. At the time of trial he had received about $2,500 in connection with his vocational training and was to receive the further sum of about $1,200. The evidence as to injuries will be set out in detail in the argument in connection with the contention that the verdict was excessive.

"At the close of the evidence, defendant offered a general instruction B for a directed verdict, and also instructions for directed verdict on specific grounds, to wit, C, that the War Risk Act and the Vocational Rehabilitation Act constituted exclusive remedies; D, that circular No. 4 barred recovery; E, that plaintiff was precluded from recovery by reason of his application for and the payment to him of compensation by the government under the War Risk Act; F, that he was precluded from recovery by reason of application for and acceptance of compensation under the War Risk Act and his acceptance of vocational training, maintenance, and support from the government under the Vocational Training Act; and G, that by reason of his acceptance of vocational training, maintenance, and support he was precluded from recovery.

"The requests for directed verdict were refused, and the case submitted to the jury. Plaintiff's instructions advised the jury among other things, that the receipt of compensation would not bar recovery, if they should find that plaintiff tendered the same back to the government, and the government had accepted the tender, and that the receipt of the vocational training, maintenance, and support was not a bar. Instruction 5 directed the jury to take into consideration in assessing damages the amounts which they should find plaintiff had received and would with reasonable certainty receive from the government in vocational training, maintenance and support."

Plaintiff was 21 years of age and had just passed a physical examination at the time of his injury. The coach in which he was riding was demolished and he was pinned under the wreckage. He suffered a compound comminuted fracture of the tibia and fibula, and a fracture of the bone in the knee joint of the right leg. The crucial ligaments binding the knee joint were torn loose from their fastenings, leaving a weak, insecure joint. There is a bowing of the tibia (shin bone) where the fracture has healed, and the fibula at the knee joint is half an inch out of place. There is almost complete ankylosis of the ankle and foot. There are scars along the front of the leg adherent to the shin bone which are a source of pain, over which plaintiff wears a pad. The tendon of Achilles was cut to let down the heel. Plaintiff can walk but little and that with the aid of a cane. He received an injury to the other knee which left it stiff for a few months. The bones in the right leg were set three different times. This leg was suspended in a Balcom frame for several weeks with ten drainage tubes and discharged so much pus that for a while the bed clothing had to be changed four times a day. He was in different hospitals for about 14 months and suffered much pain. There is general atrophy of the leg and foot and the leg is shortened about an inch from the knee to the ankle. The injuries are permanent.

Dr. Skogg, a specialist in nervous and mental...