Thompson v. Kansas City, C. C. & St. J. Ry. Co.

• Decision Date: 17 February 1930
• Parties: MARGARET THOMPSON, ADMX., RESPONDENT, v. KANSAS CITY, CLAY COUNTY & ST. JOSEPH RAILROAD COMPANY, APPELLANT
• Court: Kansas Court of Appeals

27 S.W.2d 58

224 Mo.App. 415

MARGARET THOMPSON, ADMX., RESPONDENT, v. KANSAS CITY, CLAY COUNTY & ST. JOSEPH RAILROAD COMPANY, APPELLANT

Court of Appeals of Missouri, Kansas City

February 17, 1930

Appeal from Circuit Court of Jackson County.--Hon. Willard P. Hall Judge.

REVERSED.

Judgment reversed.

W. D Bush and Cowgill & Popham for respondent.

Cooper & Neel and Ingraham D. Hook for appellant.

BARNETT C. Boyer, C., concurs. Bland and Arnold, JJ., concur. Trimble, P. J., absent.

OPINION

BARNETT, C.

--This is a suit for wrongful death. It was brought by the plaintiff as administratrix of the estate of her deceased adult son, Merritt B. Thompson. The petition merely alleges that the plaintiff is the administratrix of the estate of deceased, having been duly and legally appointed as such administratrix according to law, and duly and legally qualified as such. The evidence shows that the plaintiff was appointed as administratrix by the Probate Court of Jackson county and that she made a settlement of her cause of action and signed a release in which it is recited that as administratrix of the estate of Merritt B. Thompson, for the sole consideration of $ 1000 and certain expenses in the sum of $ 363, she released and discharged the Kansas City, Clay County & St. Joseph Railroad Company and the United States Fidelity & Guaranty Company of and from all claims, demands, damages, actions, or causes of action on account of injuries resulting or to result from an accident to her son, Merritt B. Thompson, which occurred on or about the 4th day of September, 1925, by reason of his death from personal injuries sustained while in the employ of said railroad company.

The evidence most favorable to plaintiff shows that a few days after her son was killed Mr. Campbell, an adjuster for the insurance company that carried defendant's risk, in company with James Pennington, plaintiff's brother and an employee of defendant, called upon the plaintiff. Mr. Campbell made known to the plaintiff that he was the adjuster for the insurance company and broached the subject of a settlement of her cause of action. Plaintiff told him she did not feel like talking settlement and asked to be excused. The two left immediately, but three or four days thereafter Mr. Campbell and the plaintiff's brother again called upon her. The adjuster asked the plaintiff what she was going to do and what her plans were, but there was nothing in that discussion of any importance and no definite offer of settlement was made. Another interview was had at which Mr. Campbell asked the plaintiff if she was ready to settle and she advised him that she would rather have a lawyer take care of the matter; but Mr. Campbell advised her to let lawyers alone; that this was only an overhead expense that would not do her any good at all and she did not need a lawyer. The plaintiff testified that she had several adult relatives with whom she could have advised but that she did not do so, but stated "I used my judgment as near as I knew how with Mr. Campbell's advice." "I was listening to Mr. Campbell and brother Jim's advice and I felt that they were advising me right at that time." The plaintiff testified that Mr. Campbell said that he was an adjuster for the insurance company and she understood perfectly whom he represented and that he was "there for the railroad." She stated that she felt that she was being advised according to her own interests; that Mr. Campbell was a very smooth talker and very kind and nice in every respect and he said: "Mrs. Thompson, I will be frank with you, $ 900 is all the law allows under any consideration." She did not make any inquiry concerning the statutory limit upon recovery for wrongful death.

The negotiations for settlement were pending for some time and there were numerous conferences. The plaintiff stated that she wanted to be better satisfied and wanted to understand more thoroughly, but the adjuster and her brother insisted so hard that she not consult an attorney and told her what could be done and what could not be done that she felt that they knew what they were talking about and "relied upon their advice to that extent." She testified that her brother Jim said: "'You had better take what you can get and keep your mouth shut about it,'" and that was all that he said about a settlement that she could remember. The plaintiff testified that when Mr. Campbell told her that $ 900 was all the law allowed under any consideration she said she would not consider anything of the kind. Then Mr. Campbell said he would do a little better, that he would pay the funeral expenses, and she agreed to ascertain the amount of the funeral expenses and let him know what she would do at another interview; that she wanted to think over the matter a while longer; that she was in too weak a condition to even consider it much at that time. Later, she testified that it was after Mr. Campbell had offered to pay the funeral expenses that he said that $ 900 was "all could be done." She testified that she felt like if she was going to get $ 900 and have to turn it over to a lawyer and Mr. Campbell was kind enough to tell her that $ 900 was all that she could get "why go bother." At a subsequent interview Mr. Campbell said that since plaintiff had two children to educate he would increase his offer from $ 900 to $ 1000. She finally agreed to accept $ 1000 plus the funeral expenses in settlement of the cause of action.

Before any payment was made she went to the insurance company's office where an application was made to the probate court for permission to settle the case and where the release was drawn. The application was presented to the probate court, an order granting permission to make the settlement was made, the release was signed, and plaintiff was paid the amount mentioned therein. The plaintiff contended that she did not read all of the paper that she signed, but admitted that she understood that she was settling the claim. She admitted that she could read and write but stated that Mr. Campbell hurried her by suggesting that it was growing late and that it was necessary to get down to the courthouse. However, there is no claim that the release contained any provisions different from what the plaintiff understood to be included in the agreement. Plaintiff testified that she asked how her boy was killed, that she wanted to know the circumstances of the affair; that she asked her brother Jim, she asked Mr. Campbell, she asked anyone that was connected with the company that she could find to talk to, and "they would just turn me down. 'You don't need to know, Mrs. Thompson, it will be no necessity to you, none whatever.' That wasn't satisfying me at all. I wanted to know." At another time she testified: "Everyone that I would speak to, they would turn me down and say they didn't care to talk to me about the matter--'We don't want to talk to you about it. It doesn't concern you and it won't help you at all.'" She testified that she had two relatives working for the defendant company. She asked them to ascertain the manner in which her son met his death; that "they both inquired--went over to the shops and inquired of people, and none of them would talk to them about it at all, but said they would rather not talk."

At the trial Mr. Birt, a witness for plaintiff, testified that the plaintiff's brother, Jim Pennington, placed the trolley pole of a motor car upon the trolley wire without first three times calling out a warning which was required by the company's rules. From this, together with other evidence in the case, the jury was justified in finding that plaintiff's son came to his death while working upon the electrical equipment of one of defendant's cars because the trolley pole on the car had been connected with the current without previous warning. The plaintiff's brother, Jim Pennington, was a witness for the defendant and denied that he placed the trolley upon the wire; but testified that he removed the trolley from the wire when he ascertained, from the shouts and remarks of various employees, that someone had become electrocuted while working upon the electrical equipment in the car.

The testimony disclosed that Mr. Campbell, the adjuster, was admitted to the bar, but plaintiff testified that she did not know that Mr. Campbell was a lawyer. Plaintiff testified that she felt that her case was fairly settled until later on, but that she was better satisfied with Mr. Birt's version of the circumstances under which her son met his death, than she was with the statement of any other person, and that she believed that the defendant's agents knew how her son met his death. There was testimony in the case that it was the duty of a person who intended to work upon the electrical equipment of the car to place two blue flags upon the car so that it might be known that a man inside of the car was exposed to danger if the current was connected. The deceased went to work in the car without placing any flags upon the car. His helper came up after he had gone to work, and placed two flags in the car but did not put them in position. He was then told by Mr. Thompson to go after certain supplies. While he was gone the deceased was electrocuted. The deceased did not tell the helper to bring the flags nor to put them in position. The helper said that he thought Mr. Thompson was working on the light globes and did not see him engaged in any activity which might cause him to be exposed to danger if the...