Davis v. Fleming

• Decision Date: 11 June 1923
• Docket Number: No. 14746.,14746.
• Citation: 253 S.W. 798
• Parties: DAVIS v. FLEMING et al.
• Court: Missouri Court of Appeals

253 S.W. 798

DAVIS v. FLEMING et al.

No. 14746.

Kansas City Court of Appeals. Missouri.

June 11, 1923.

Rehearing Denied July 2, 1923.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

"Not to be officially published."

Action by Mary E. Davis against Fred W. Fleming and another, successors to Frank 0. Niles, as receivers of the Kansas City Railways Company. Judgment for plaintiff, and defendants appeal. Affirmed.

Chas. N. Sadler and Roscoe P. Conkling, both of Kansas City, for appellants.

Ira B. McLaughlin, of Kansas City, for respondent.

TRIMBLE, P. J.

Plaintiff's action is for damages arising on account of personal injuries sustained by her while riding as a passenger on a street car of the Kansas City Railways Company, then in the hands of, and being operated by, Frank C. Niles, receiver, appointed by the federal District Court.

While plaintiff was a passenger on said street car going over the Inter-City Viaduct between the two Kansas Cities, the car was stopped, the trolley was taken from the wire, leaving the car in darkness, and shortly thereafter another car came up from behind and crashed into it, whereby plaintiff was injured. The jury returned a verdict for $5,000, on which judgment was rendered, and from which this appeal was taken by the receivers then in charge of the company's affairs.

The collision occurred on the 17th of October, 1920. At that time the Kansas City Railways Company was in the hands of said Niles as temporary receiver, under an order of the United States District Court with authority to operate the street car system and to appear in and defend against all suits then pending or thereafter brought against the said company. The present suit was filed op the 25th of October, 1920, and was brought against "Frank C. Niles as receiver of Kansas City Railways Company, a corporation, defendant." Summons was issued, and `the same was served upon the said Frank C. Niles on November 4, 1920. On December 7, 1920, defendant Niles, through the same counsel afterwards appearing for the present receivers, filed motion to make more definite and certain, and on October 7, 1921, plaintiff filed an amended petition which was against Niles, receiver, as before. To this, defendant, through the same counsel, filed an answer in the shape of a general denial. At the same term and on November 3, 1921, plaintiff filed her second amended petition adding as additional parties "Fred W. Fleming and Francis M. Wilson, successors to Frank C. Niles, as receivers of the Kansas City Railways Company, a corporation," the style of the case being "Mary E. Davis, Plaintiff, v. Frank C. Niles, as Receiver of the Kansas City Railways Company, a Corporation, and Fred W. Fleming and Francis M. Wilson, Successors to Frank Niles, as Receivers of the Kansas City Railways Company, a Corporation, Defendants."

It seems, however, that on October 27, 1920, two days after plaintiff's suit was instituted, but before service was obtained on Niles, receiver, the federal court, by its order, terminated the temporary receivership of said Niles and appointed Fred W. Fleming and Francis M. Wilson receivers of said railways company, and, in said order, expressly directed them to operate the system, to continue the business, and to "appear in and defend in their names, or otherwise, all suits now pending or hereafter brought by or against the defendant to compromise and settle all claims and suits which have (arisen) or may arise on account of the operation of the property subsequent to the filing of the bill of complaint herein." It was further directed in said order that the termination of Niles' temporary receivership, and the appointment of Fleming and Wilson as receivers in his stead, should take effect at midnight between October 27 and October 28, 1320.

A copy of plaintiff's second amended petition which was filed on November 3, 1021, was delivered to the same counsel who had theretofore appeared in the cause as counsel for defendant, and receipt of such copy was indorsed upon the second amended petition and signed by him as "counsel for defendants." No summons was ever issued to or served upon said Fleming and Wilson as receivers.

On November 8, 1921, the same counsel who had at all times appeared for Niles `and afterwards for Fleming and Wilson, appeared in court and, as counsel for defendants Fred W. Fleming and Francis M. Wilson, successors to Frank C. Niles, as receivers of the Kansas City Railways Company, filed in their behalf a demurrer to said petition.

Said demurrer recited that said defendants appeared "solely for the purpose of this demurrer and for no other purpose whatsoever," and the demurrer to the petition was on the grounds: First, that "no writ of summons or other process has ever been issued out of this court, notifying defendants of the pendency of this suit"; and, second, that the "petition upon its face does not state facts sufficient to constitute a cause of action against said defendants."

On December 5, 1321, the demurrer was overruled. The record recites that the defendants and each of them excepted to the ruling of the, court. The record then recites, "Come now defendants by their attorney and file answer to plaintiff's second amended petition."

The record further recites that the case coming on regularly for trial, the jury was impaneled and sworn, whereupon plaintiff by leave of court amended her petition by interlineation by striking out of her petition the words "is a widow and is therefore liable," and inserting in lieu thereof the words "has incurred personal liability," to which amendment the defendants, through the same counsel as before, excepted. The record in this same entry further recites that—

The "application of plaintiff for an order to substitute Fred W. Fleming and Francis M. Wilson, present receivers of the Kansas City Railways Company, in place of the former receiver, Frank 0. Niles, filed herein, coming on to be heard, and the court recalling that midi an order was directed to be made on November 4, 1921, now sustains such application and directs and orders that Fred W. Fleming and Francis M. Wilson, receivers as aforesaid, be substituted for and in place of Frank 0. Niles, former receiver, and the cause will proceed to trial accordingly," etc.

To this the said defendants and each of them excepted. The same entry then recites that a portion of the evidence was heard, and the jury, under instructions, was dismissed until next day.

The abstract of the record then recites that "thereafter and on the same day" the defendants filed answer as follows: "Come now Fred W. Fleming and Francis M. Wilson, receivers of the Kansas City Railways Company, and under protest file this their separate answer to plaintiff's second amended petition," in which, after admitting they were receivers of the Kansas City Railways Company, they denied each and every allegation in the said petition contained.

The foregoing may apparently show that two answers were filed by the defendant receivers, one immediately after the demurrer was overruled and another, the "under protest" answer, after the amendment of the petition by interlineation and the substitution of the two receivers in the place of the former receiver, Niles, and after a portion of the testimony was heard. But the abstract of the bill of exceptions shows that after the impaneling of the jury the separate demurrer, heretofore stated, was offered, in connection with which defendants' counsel offered the date of the filing of the amended and second amended petition and also proof that no process was issued for said Fleming and Wilson, receivers, and plaintiff's counsel offered the orders appointing Niles and also Fleming and Wilson as receivers.

Thereupon the court overruled the demurrer and counsel for defendants excepted. The court then inquired of defendants' counsel, "Now what do you do?" To which counsel replied:

"Under protest I am filing a separate answer. These defendants, that is, Fred W. Fleming and Francis M. Wilson, receivers, file answer."

The court in the meantime had inquired if there had not been a motion or application to substitute Fleming and Wilson as receivers in the place of Niles, to which plaintiff's counsel replied that such application was oral, and after the demurrer was overruled and the "under protest" answer filed, the court took up the question of substituting the names of the new receivers for the former receiver as defendants in the case. The stenographer's notes of the former oral application to...