American Car & Foundry Co. v. Anderson

• Decision Date: 24 January 1914
• Docket Number: 3927.
• Citation: 211 F. 301
• Parties: AMERICAN CAR & FOUNDRY CO. v. ANDERSON.
• Court: U.S. Court of Appeals — Eighth Circuit

211 F. 301

AMERICAN CAR & FOUNDRY CO. v. ANDERSON.

No. 3927.

United States Court of Appeals, Eighth Circuit.

January 24, 1914

William R. Gentry, of St. Louis, Mo. (M. F. Watts and Edwin W. Lee both of St. Louis, Mo., on the brief), for plaintiff in error.

Henry B. Davis, of St. Louis, Mo. (John A. Harrison and Charles Erd, both of St. Louis, Mo., on the brief) for defendant in error.

Before HOOK and SMITH, Circuit Judges, and AMIDON, District Judge.

SMITH Circuit Judge.

The American Car & Foundry Company, hereafter called the defendant, has for some years been conducting a manufacturing plant at St. Louis, Mo. On or about December 22, 1910, Jacob Joseph Baudendistel was killed by an accident at the defendant's works. At the time of the accident he was employed by William Eiler who had a contract with the defendant to put brake connections upon cars at a fixed rate per car. At the time of the accident the defendant carried a liability policy with the Travelers' Insurance Company by which it was agreed that the insurance company would assume the defense and make payment of claims against the defendant on account of the personal injury or death of employes while engaged in the service of that company. On December 24, 1909, a coroner's inquest was held upon the body of Mr Baudendistel. There was introduced before it the report of the police department, from which it appeared that the deceased resided with his mother, Mary Baudendistel, at 3213 South Seventh street. At the same inquest Frank Biederman testified that he was the uncle of the deceased, and that the deceased lived at 3213 South Seventh street. The deceased was unmarried, but left his mother, Mary Baudendistel, a widow and four brothers and one sister, namely, August Baudendistel, Julius Baudendistel, John Baudendistel, Frank Baudendistel, and Elizabeth Baudendistel. All of his brothers and sister were minors at the time of the death of Jacob Joseph Baudendistel, but August Baudendistel became of age March 28, 1910, and Julius Baudendistel, John Baudendistel, and perhaps Elizabeth Baudendistel are now of age. On April 16, 1910, Harry Troll, public administrator for the city of St. Louis, filed with the judge of the probate court of the city of St. Louis notice that he had taken charge of the estate of Jacob Joseph Baudendistel. The clerk of the probate court attached to a copy of this notice a certificate that the same was such copy, and that Harry Troll, public administrator, was duly authorized and empowered to secure and dispose of the property of the said deceased according to law, collect all moneys due said deceased, and in general to do and perform all other acts and things which are or hereafter may be required of him by law. This certificate was under the seal of the probate court. Troll published a notice of his, having taken charge of the estate in the St. Louis Times on April 29 and on May 6, 13, and 20, 1910. On April 18, 1910, said public administrator filed in the probate court his inventory, in which he reported the only estate of the deceased consisted of a claim against the defendant for the killing of the deceased. June 6, 1910, he filed in the probate court an application in which it was alleged a copy of the testimony taken at the coroner's inquest was attached, and asked leave to compromise the claim against the defendant for $1,000, and on the same day the court ordered that he be so authorized. Thereupon the sum of $1,000 was paid, and the public administrator gave to the defendant a full release of this claim. The negotiations prior to the settlement were largely carried on by the Travelers' Insurance Company under its policy of indemnity.

On cross-examination, as a witness in this case, Harry Troll testified:

'Q. Did you interview Baudendistel's mother? A. Her existence was not known to the administrator until December, 1910. Q. Had you interviewed these brothers and sister that sit here in court? A. We had no information regarding them.'

This evidence is in no wise controverted, except as the report of the police department, above referred to, contained the information that the deceased resided with his mother, Mary Baudendistel, at 3213 South Seventh street, and Troll further testified upon this trial:

'Q. Had you seen the Coroner's inquest? A. Not personally-- not myself, no.'

About December 10, 1910, Mary Baudendistel, the mother, and August Baudendistel, the oldest brother of the deceased, who had become of age, filed in the probate court an application in which it was alleged that no administration had ever been regularly taken out upon the estate of the deceased; that notwithstanding that fact Harry Troll, public administrator, had unlawfully and wrongfully, and without notice to the applicants or either of them, and without any order of the probate court, taken charge of and begun the administration of the estate; that he had no authority of law whatsoever for so doing, and his acts and doings in the premises were and are wholly wrongful and unlawful, and that he had no authority in law whatsoever for entering upon said estate, none of the facts or circumstances existing authorizing him to take charge thereof, and asking that all authority, if any in him, to administer upon or enter into possession of the said estate be set aside and revoked. Thereupon the court revoked the authority of the public administrator, and appointed Albert R. Anderson administrator de bonis non. After said order of revocation the judge of the probate court approved a settlement with the public administrator, allowed him $25 for his services, and directed him to pay over $608.60 to Albert R. Anderson, administrator de bonis non and successor to public administrator.

Anderson brought this suit in the state court, as administrator of the deceased, to recover damages for the killing of his intestate. Anderson, as administrator, will hereafter be called the plaintiff. The case was removed from the state to the United States District Court, and resulted in a verdict for the plaintiff for the sum of $5,000, and the American Car & Foundry Company sued out this writ of error.

Upon the trial the defendant relied exclusively upon the accord and satisfaction heretofore referred to, and substantially the sole question raised upon this hearing was as to the validity of the release given by Harry Troll as public administrator.

The following, quoted from the Revised Statutes of Missouri of 1909, although published after, are the same as were in force at the time of the accident:

'Sec. 5425. * * * If there be no husband, wife, minor child or minor children, natural born or adopted as hereinbefore indicated, * * * then in such case suit may be instituted and recovery had by the administrator or executor of the deceased and the amount recovered shall be distributed according to the laws of descent, and such corporation, individual or individuals may show as a defense that such death was caused by the negligence of the deceased.

'Sec. 5426. When Representative may Sue.-- Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.

'Sec. 5427. Damages, by Whom Recovered-- Measure of.-- Damages accruing under the last preceding section shall be sued for and recovered by the same parties and in the same manner as provided in section 5425; and in every such action the jury may give such damages, not exceeding ten thousand dollars, as they may deem fair and just, with reference to the necessary injury resulting from such death, to the surviving parties who may be entitled to sue, and also having regard to the mitigating and aggravating circumstances attending such wrongful act, neglect or default.'

'Sec. 9. Letters, by Whom Granted.-- The probate court, or the judge or clerks thereof in vacation, subject to the confirmation or rejection of the court, shall grant letters testamentary and of administration.'

'Sec. 56. Proceedings to Compel Accounting in Cases of Resignation or Removal.-- If the executor or administrator resign or his letters be revoked, it shall be the duty of his successor, or of the remaining executor or administrator, to move the court to compel the executor or administrator removed, or having resigned, to make final settlement; and on such motion, after due notice to such executor or administrator, the court having jurisdiction shall ascertain the amount of money, the quality and kind of real and personal property, and all the rights, deeds, evidences of debt and paper of every kind of the testator or intestate in the hands of such executor or administrator, or that came into his hands and remain unaccounted for at the time of his resignation or removal from office or revocation of his letters, and to enforce such order and judgment against such administrator or executor, and his sureties if they had due notice of the proceedings, or against either of them-- first, for the amount of money specified in the judgment, by execution in the ordinary form; second, for all other estates, effects and papers described in the judgment or order, by attachment against the person or property of executor or administrator.'

'Sec. 112. General Power of Court over Estate.-- The court may, at any time, make such orders as the interest of the estate may require for the speedy collection of debts or the sale and distribution of

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