Aho v. Republic Iron & Steel Co.
| Decision Date | 22 May 1908 |
| Docket Number | 15,654 - (62) |
| Citation | 116 N.W. 590,104 Minn. 322 |
| Parties | IDA AHO v. REPUBLIC IRON & STEEL COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for St. Louis county by the administratrix de bonis non of the estate of John Aho deceased, to recover $1,999.99 for his death while in the employ of defendant. From an order, Dibell, J., overruling the demurrer of the defendant to plaintiff's reply defendant appealed. Affirmed.
Fraudulent Settlement by Administrator -- Action by Administratrix.
A. was killed by the alleged negligence of the defendant. J. was appointed administrator of his estate, and made an alleged fraudulent settlement with the defendant of the cause of action against it, given by the statute for the benefit of the widow and children of the deceased, and delivered to it a release thereof. Two days thereafter the probate court made an order, which has not been set aside, approving and confirming the settlement and release. The widow, for herself and children, commenced an action against J. and the defendant, which was dismissed without a trial on the merits, to recover damages claimed to have been sustained by them by reason of such fraudulent release. The widow, as administratrix de bonis non of A.'s estate, afterwards brought this action to recover damages from the defendant for the death of her intestate, on the ground that it was caused by its negligence. Held that, if the release was fraudulent, neither it nor the commencement of the prior action by the widow is a bar to this action.
Washburn, Bailey & Mitchell, for appellant.
Jno. Jenswold, Jr., for respondent.
This is an appeal from the order of the district court of the county of St. Louis overruling the defendant's demurrer to the reply of the plaintiff. The complaint alleged facts tending to show that plaintiff's intestate was killed by reason of the alleged negligence of the defendant, that the plaintiff is the administratrix of the estate of the deceased, and that he left him surviving a widow and two minor children. The answer put in issue the alleged negligence of the defendant, and alleged, in effect, that Charles Jesmore was duly appointed administrator of the estate of the deceased, and as such settled with the defendant the claim against it, on account of the death of plaintiff's intestate, for $300, and executed and delivered an absolute release thereof, and that two days thereafter a report of the settlement was made to the probate court of the proper county and was approved by such court; that after such settlement was made Jesmore resigned, and plaintiff was appointed administratrix de bonis non; that the plaintiff, as an individual and as guardian of the minor children of herself and her deceased husband, brought an action against Jesmore and the defendant herein to recover damages, on the ground that Jesmore, as administrator, and the defendant, made a fraudulent and collusive settlement of the claim of liability of the defendant for the death of the deceased; and, further, that the action was never brought to trial, but was dismissed. The reply to the defendant's answer herein alleged facts which, if proven, would justify the conclusion that the settlement made by Jesmore, as administrator, and the defendant, was fraudulent. This prior action referred to in the defendant's answer was never tried upon the merits, but was dismissed (see Aho v. Jesmore, 101 Minn. 449, 112 N.W. 538, 10 L.R.A. [N.S.] 998), and this action commenced by the administratrix de bonis non.
Two reasons are here urged by the defendant in support of its demurrer. They are:
1. The doctrine of election of remedies is well settled in this state, and is to the effect following: Where a party has a right to choose one of two or more appropriate, but inconsistent, remedies, and with full knowledge of all of the facts and his rights makes a deliberate choice of one of them, he is bound by his election, and is estopped from again electing and resorting to the other remedy. Election of remedies differs from estoppel in its broadest sense in that it need not be shown that the party invoking it will suffer some material disadvantage unless his adversary be required to abide by his election. Pederson v Christofferson, 97 Minn. 491, 106 N.W. 958. The facts alleged in the answer, and admitted by the reply, do not present a case of election. If a person other than the widow had been appointed administrator de bonis non and had brought this statutory action, it would be apparent that no claim, in reason, could be made that there had been any election of remedies by the plaintiff, for he never had but one remedy or cause of action. The fact that the widow of the deceased was appointed such administrator, instead of a third person, and as such brought this action, does not change the legal aspect of the case in the least. The widow, in her own right and that of her children, could not maintain this action. Aho v....
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