Erb v. Popritz

• Decision Date: 09 April 1898
• Docket Number: 10452
• Citation: 52 P. 871,59 Kan. 264
• Court: Kansas Supreme Court
• Parties: NEWMAN ERB, Receiver of the Kansas City, Wyandotte & Northwestern Railroad Company, v. EMMA POPRITZ

52 P. 871

59 Kan. 264

NEWMAN ERB, Receiver of the Kansas City, Wyandotte & Northwestern Railroad Company, v. EMMA POPRITZ

No. 10452

Supreme Court of Kansas

April 9, 1898

Decided January, 1898.

Error from Leavenworth District Court. Louis A. Myers, Judge.

Judgment reversed and cause remanded.

Waggener Horton & Orr, for plaintiff in error.

Fenlon & Fenlon, for defendant in error.

OPINION

JOHNSTON, J.

In April, 1893, Max Popritz was employed as an engineer by the receiver of the Kansas City, Wyandotte & Northwestern Railroad Company, and on April 30, 1893, while operating a switch-engine in the yards of the company at Kansas City, he was killed by the derailment of the engine. Emma Popritz, his wife, brought this action in the district court against the receiver, alleging that the death of her husband was caused by the negligence of the receiver. The specific negligence alleged as a basis of recovery is that the railroad track was negligently constructed, "and in consequence thereof the same and the bed thereof not having sufficient ballast and ties thereunder, the ties being rotten and too far apart and the track and road-bed uneven, and the joints being low and sunken, and the switch and switch-rail being broken and otherwise out of order, and the iron rails being old and worn out and unfit for use; the engine jumped and ran off the track and turned over upon said Popritz, inflicting injuries which resulted in his death," etc.

The answer of the receiver was: First, a general denial; second, that the Federal court which appointed Erb as a receiver made an order in December, 1893, requiring all persons having claims or demands against the receiver to present the same to the special master on or before January, 1894; but that the plaintiff did not present or file any claim with the special master. In the same connection it was alleged that the receiver had sold the railroad and its equipment, and the sale thereof had been confirmed and a deed issued to the purchaser; and, further, that the proceeds of the sale were thereafter, under the order of the Federal court, disbursed, and all assets which had come into the hands of the receiver had been taken therefrom and were beyond his control.

The third defense was that Popritz was an experienced engineer and thoroughly acquainted with the tracks, road-bed and engines of the Company, and that all injuries received by him at the time of his death were the result of his own negligence; that he had traveled over the track many times each day for many months prior to the accident, and that if it was defective, as alleged, it must have been apparent to him; but that he made no complaint to the receiver or any of his superior officers. It was further alleged that he had run the engine in violation of the rules and regulations of the Company.

A demurrer was filed by the plaintiff to the second ground of defense, which alleged that the plaintiff below had failed to present her demand to the special master, and further, that the receiver had sold the road and disposed of the property which had been committed to his care. The demurrer was sustained, the court holding that these averments were insufficient to constitute a defense to the plaintiff's action. Upon the trial the jury found in favor of the plaintiff and assessed her damages in the sum of eight thousand dollars. The receiver assigns as error the ruling of the court upon the demurrer to the second defense set up in his answer.

The first branch of the defense in question is manifestly insufficient. The fact that notice was given to claimants to present their claims to the special master within a specified time did not preclude the continuation of the action of the plaintiff below nor the final adjudication of her claim in the district court. The Federal laws provide that a receiver may be sued in the State courts without leave of the Federal courts appointing the receiver, and the judgment rendered in the State court is conclusive upon the Federal court as to the existence and amount of the plaintiff's claim. 25 U.S Statutes at Large, 436; Reinhart v. Sutton, 58 Kan. 726, 51 P. 221. That it was not the purpose of the Federal court to require claimants to adjudicate their claims before the master, or in the Federal court alone, is manifest from the order appointing the receiver. It specifically provided that the receiver should operate the road conformably to the laws of the State, and might be sued in the State courts for debts and liabilities incurred by him in the operation of the road; and in order to accommodate claimants, it was provided that the receiver should appoint an agent in each county through which the road runs upon whom process issued against the receiver might be served. There was a further provision that judgments obtained against the receiver in the State courts should be audited and allowed as of course as adjudicated claims upon the filing of a transcript of the same in the Federal court.

The remaining averments, that the railroad had been sold, and that the property had passed out of the possession and beyond the control of the receiver, hardly measure up to a valid defense. It is true, the liability of the receiver for the Popritz claim, if liable at all, is official, and not personal, and a judgment rendered against him as receiver is payable only out of trust property and funds in the custody of the court for which he was acting. When his agency has ceased and the receivership terminated, his successor should be substituted in any pending...