Drakopulos v. Biddle
| Decision Date | 23 June 1921 |
| Citation | 231 S.W. 924,288 Mo. 424 |
| Parties | SOTERO DRAKOPULOS, Appellant, v. WILLIAM B. BIDDLE et al., Receivers of St. Louis & San Francisco Railroad Company, et al |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Daniel E. Bird, Judge.
Reversed and remanded (with directions).
C. W Prince, E. A. Harris, and Jas. N. Berry for appellant.
(1) Substituting the widow, who had the legal right to sue for the claim for which the action was brought, instead of a personal representative improperly named as plaintiff, was not a departure or commencement of a new action. There is a vast difference between substituting a competent for an incompetent plaintiff, and bringing in a new defendant. Vaughan v. Ry. Co., 177 Mo.App. 155; Dugan v Ry. Co., 178 Mo.App. 165; Lilly v. Tobbein, 103 Mo. 477; Mott v. Long, 90 Kan. 110; Upson v Railway, 211 Mass. 446; Harkness v. Julian, 53 Mo. 238; Webber v. City, 83 Mo. 262; Winkelmaier v. Weaver, 28 Mo. 356; Meyer v. Ry., 152 Iowa 330; Ry. Co. v. Wulf, 226 U.S. 570. (2) Amendments are allowed expressly to save the case from the Statute of Limitations, and courts have been liberal in allowing them when the cause of action is not totally different. Lottman v. Barnett, 62 Mo. 159; Courtney v. Blackwell, 150 Mo. 245. (3) Plaintiff in the fifth amended petition is not a stranger to the original petition and subsequent amended petitions, as she was named in all of the prior petitions filed, as a party for whose benefit the administrator was suing, as well as for the benefit of the children of the deceased. Weber v. City of Hannibal, 83 Mo. 263; Keystone Coal Co. v. Fekete, 232 F. 74. (4) The defendants by obtaining leave of court for time in which to plead to the fifth amended petition, and in filing their joint motion to strike, which was an attack upon the pleadings, and also asking judgment for costs, was a general appearance, and even had the fifth amended petition been a departure, defendants' general appearance constituted a waiver of such so called departure. Walker v. Wabash, 193 Mo. 403; State v. Grimm, 239 Mo. 135. (5) Secs. 6014 and 6015, R. S. Kans. 1909, Chap. 95, are necessarily construed together, and the fact that Sec. 6015 was not mentioned in the original petition and subsequent amended petitions filed in said cause, does not constitute a departure by setting forth Sec. 6015 together with section 6014, in the fifth amended petition. (6) There was no departure in the fifth amended petition from the original and subsequent amended petitions, because the quantum of evidence and the measure of damage was the same. Haines v. Pearson, 107 Mo.App. 485; Ry. Co., v. Wulf, 226 U.S. 570. (7) The widow of deceased is the proper party to bring suit for the death of her husband, based upon Sections 6014 and 6015. Darotti v. Ry. Co., 262 Mo. 1; Marquez v. Koch, 176 Mo.App. 143; Vawter v. Ry. Co., 84 Mo. 679.
W. F. Evans, Guthrie, Conrad & Durhum and Hale Houts for respondent.
(1) The cause of action set up by the widow in the fifth amended petition was authorized only by Sec. 6015, G. S. Kan. 1909, and was an entirely different cause of action from that stated by the administrator in the fourth amended petition under Section 6014, which authorized the suit only by the administrator. The subject-matter was different, different evidence was required to support the respective actions, recovery in one under one petition would not be a bar from recovery under the other. The new petition substituted a new plaintiff who was a stranger to the cause of action stated in the former petition. There was a change from law to law. Respondents' motion to strike as a departure was properly sustained. Garber v. Mo. Pac., 210 S.W. 389; St. Charles Savings Bank v. Thompson, 223 S.W. 737; Broyles v. Eversmeyer, 262 Mo. 389; McHugh v. Transit Co., 190 Mo. 85; Ross v. Mineral Land Co., 162 Mo. 317; Heman v. Glann, 129 Mo. 325; Parker v. Rodes, 79 Mo. 88; Bick v. Vaughan, 140 Mo.App. 602; Jones v. Whitney, 136 Mo.App. 683. (2) While the courts may allow amendments in order to save a case from the Statute of Limitations, courts will not permit a new and different cause of action to be substituted for the purpose of tolling the statute or for any other purpose. St. Charles Savings Bank v. Thompson, 223 S.W. 737. (3) The appellant was a stranger to the cause of action stated in the fourth amended petition. On the face of the fourth amended petition, the only cause of action was in Strother, the administrator. It did not constitute a defective statement of a cause of action in favor of appellant, but was a complete cause of action to which the appellant has no right as a party, although she may have had a beneficial interest in the result. Garber v. Mo. Pac., 210 S.W. 389. (4) There was no waiver of the departure. Defendants followed the procedure prescribed by this court in Walker v. Wabash, 190 Mo. 453, cited by appellant. Entry of appearance by defendants was not involved for they were already in court. They did not answer over but filed the motion which was the only pleading by which the question could have been raised. (5) There was clearly a change from law to law. While it was necessary for appellant to plead Section 6014 authorizing an action for wrongful death, it was also necessary for her in order to recover to plead and prove a new and additional section, to-wit, Section 6015, and the effect of bringing herself within Section 6015 was to nullify and destroy that part of Section 6014 authorizing the administrator to bring suit. (6) The evidence required under the fifth amended petition was entirely different to that required under the fourth. To maintain the former action it was necessary to prove that plaintiff, Sam B. Strother, was the duly appointed administrator of Gust Drakopulos and authorized by Section 6014 to sue for the death of deceased. Under the fifth amended petition, it was necessary to prove that there was no administrator duly authorized to bring an action under Section 6014, to prove the existence of Section 6015 authorizing a suit by the widow and that the plaintiff was the widow. (7) While the widow was the proper party to sue for the death upon properly pleading and proving Section 6015 and proving the facts required by said section, she was not a proper party to bring the action if the allegations of the fourth amended petition were true. Sec. 1163, R. S. 1919; Schureren v. Ry. Co., 192 S.W. 965.
The action is for damages for the wrongful death of Gust Drakopulos, the husband of plaintiff. The original petition was filed August 7, 1915. The fourth amended petition, filed December 3, 1918, ran in the name of Samuel B. Strother, Administrator of the Estate of Gust Drakopulos, deceased. It alleges that plaintiff therein was the "duly appointed administrator," etc. Certain allegations relating to the appointment of receivers for the St. Louis & San Francisco Railroad Company, foreclosure sale of its property and purchase thereof by defendant, St. Louis & San Francisco Railway Company, are made. Said petition then averred the facts relative to the death of Gust Drakopulos in the State of Kansas on April 26, 1915, and that the same was caused by the negligence of defendants; that deceased left surviving him a widow, Sotero Drakopulos, and three minor children therein named, all dependent upon him; that plaintiff has been given a right of action for said death by the laws of Kansas, and sets out Section 6014 of Chapter 95, Article 18, of the General Statutes of Kansas for 1909, as follows:
The prayer of said fourth amended petition is as follows:
"Wherefore, plaintiff, for and in behalf of said widow and children, asks judgment against defendants for the sum of ten thousand dollars together with his costs herein incurred and expended."
On February 12, 1919, the widow, Sotero Drakopulos, present plaintiff, applied for leave to be substituted as party plaintiff and to adopt the pleadings and proceedings in said cause. On March 4, 1919, and over the objection and exception of defendants, she was permitted to be substituted as plaintiff, and on that date filed a fifth amended petition, in which she alleged that on and prior to April 26, 1915, she was the wife of Gust Drakopulos, and sets out the names of her three children and that she and said children were residents of the Kingdom of Greece and were dependent upon said Gust Drakopulos.
The fifth amended petition in other particulars is substantially in the same words as the fourth amended petition, except that it sets out in full Section 6015 of the General Statutes of Kansas for 1909, Chapter 95, Article 18, as follows:
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