ON MOTION FOR REHEARING. Since the foregoing opinion was handed down the case of Adams v. Q.O. K.C. Rd. Co., has been published in the Southwestern Reporter (229 S.W. 190) and in its motion for a rehearing defendant contends that our decision is in conflict with that one of the Supreme Court. That decision holds that the railroad company is not liable for the acts of those employed in the railroad service during Federal control. On the original submission of this case we said: "This suit (Hite v. Railway, 225 S.W. 916) was brought before the promulgation of General Order No. 50 and we do not know what the Supreme Court of this State would hold in a case brought after October 28, 1918." The Supreme Court has answered this in the Adams case. However, we were careful in the opinion to say "we find it unnecessary to go into the question as to whether a recovery can be had against the railway corporation for the acts of the Director General," and placed our decision on the proposition that it was not necessary that *Page 363 there could be such a recovery but as Mrs. Welker had a bona-fide doubtful claim against the railway corporation and that corporation settled it with her while the suit was pending against it, there was a sufficient consideration for the settlement and the settlement was paid and that, consequently, it was unnecessary for Elliott to show his client's claim was a valid one in the sense that the claimant be able to recover on it.
The fact that the claim was at least a doubtful one when the settlement was made is shown by the cases of Hite v. Railway, supra; Postal Tel. Co. v. Call, 255 F. 850; Jensen v. L.V.R. Co., 255 F. 795; Johnson v. McAdoo, 257 F. 757; Witherspoon v. Postal, etc., Co., 257 F. 758; The Catawissa, 257 F. 863; Dampskibs v. Hustis, 257 F. 862; Lavalle v. N.P.R. Co.,143 Minn. 74; Gowan v. McAdoo, 143 Minn. 227; Palyo v. N.P.R. Co., 175 N.W. 687; Ringquist v. M. and N.R. Co., 176 N.W. 344; McGregor v. G.N.R. Co., 172 N.W. 841; Franke v. C. N.W.R. Co., 173 N.W. 701; M.P.R. Co. v. Ault, 216 S.W. 3; Lancaster v. Keebler, 217 S.W. 1117; Clapp v. Amer. Ex. Co., 234 Mass. 174; Owens v. Hines, 100 S.E. 617.
With the concurrence of ARNOLD, J., the motion for a rehearing is overruled and it is so ordered. Trimble, P.J., dissents.