In re Estate of Spoo

• Decision Date: 14 July 1921
• Docket Number: 33886
• Parties: IN RE ESTATE OF GEORGE SPOO. SUSANNA SPOO, Administratrix, Appellee, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

183 N.W. 580

191 Iowa 1134

IN RE ESTATE OF GEORGE SPOO. SUSANNA SPOO, Administratrix, Appellee, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

No. 33886

Supreme Court of Iowa, Des Moines

July 14, 1921

Appeal from Emmet District Court.--NELS J. LEE, Judge.

PROCEEDINGS in probate. The facts fully appear in the evidence.--Reversed.

Reversed and remanded.

J. G Gamble, Ralph L. Read, and C. W. Crim, for appellant.

Davis Michel & Morse and William S. Johnston, for appellee.

STEVENS J. EVANS, C. J., ARTHUR and FAVILLE, JJ., concur.

OPINION

STEVENS, J.

I.

The Chicago, Rock Island & Pacific Railway Company, a corporation owning and operating a line of railway through the states of Iowa and Minnesota, on the 10th day of July, 1920, filed an application in the office of the clerk of the district court of Emmet County, Iowa, in probate, asking that Susanna Spoo, administratrix of the estate of George Spoo, deceased, be directed to dismiss an action commenced by her as administratrix in the district court of Douglass County, Minnesota, for damages under the Federal Employers' Liability Act for the death of George Spoo, her husband, which resulted from injuries received at Estherville, Iowa, while employed by the said railway company in interstate commerce. George Spoo died on or about April 20, 1920, and his wife was appointed administratrix of his estate on or about May 27, 1920. The application of the said railway company for an order directing the administratrix to dismiss said action is based upon the provisions of Chapter 293, Acts of the Thirty-seventh General Assembly, which is as follows:

"Section 1. It shall be unlawful for any person, with the intent, or for the purpose of instituting a suit thereon outside of this state, to seek or solicit the business of collecting any claim for damages for personal injuries sustained within this state or for death resulting therefrom, or in any way to promote the prosecution of a suit brought outside of this state for such damages, or to do any act or thing in furtherance thereof, in cases where such right of action rests in a resident of this state, or his legal representative, and is against a person, copartnership or corporation subject to personal service within this state."

Said application is also upon the further ground that the litigation is vexatious, in that it will require the said company to try the case outside of the state where the injuries were received and where its witnesses reside, and will necessarily involve much greater expense than if tried in this state, and will otherwise deprive it of a fair trial. The application, which asked the court to direct the administratrix to dismiss the action commenced in Douglass County, Minnesota, and, if necessary to carry out said order, that she be removed, was verified, and recites that Davis, Michel & Morse, her attorneys, reside in Minneapolis, and alleges, upon information and belief, that said attorneys are engaged in what is commonly known as the business of "ambulance chasing," and that the administratrix was solicited to employ them and to prosecute said action in the state of Minnesota. The resistance offered by appellee was her affidavit, which bears evidence of having been carefully drawn. This affidavit recites that she was advised by friends to employ the firm of Davis, Michel & Morse, and that, after employing them, she requested that the suit be brought in the state of Minnesota, and still desires it be prosecuted in said state. No direct evidence was introduced to sustain the allegations of the application of the railway company, made upon information and belief, nor does the affidavit of Susanna Spoo contain a direct denial thereof.

The contention of counsel for appellee is that the proof wholly fails to show that the action was commenced, or is being prosecuted, in violation of Chapter 293, Acts of the Thirty-seventh General Assembly; and that, under the specific provisions of the Federal Employers' Liability Act, the Minnesota court has jurisdiction of the action in Douglass County; and that the district court of Emmet County, Iowa, is wholly without jurisdiction or authority to require the dismissal thereof, or to control or direct the administratrix in the premises.

It is assumed apparently by the attorneys upon both sides that the district court of Emmet County, sitting in probate, has such jurisdiction and authority over the acts of the administratrix as to enable it to require her to dismiss the Minnesota suit, if prosecuted in violation of Chapter 293, Acts of the Thirty-seventh General Assembly, unless the provisions of the Federal Employers' Liability Act are exclusive, and operate to restrict the jurisdiction of the probate court to control or direct the acts of said administratrix.

This court construed Chapter 293, Acts of the Thirty-seventh General Assembly, in Wabash R. Co. v. Peterson, 187 Iowa 1331, 175 N.W. 523. In that case, we said:

"It is true that soliciting only is made punishable, and true there is no evidence of solicitation. But does it follow that the act condemns nothing but the solicitation? So to hold is to overlook that the unsolicited suit works precisely the same hardship that it does when solicited. We conclude that there is power and right to restrain such suit as the one at bar, because, whatever was actually intended, such suit is an evasion of the public policy of this state. Case law dealing with such injunctions has been greatly concerned with whether the bringing of certain suits was violative of public policy. We are relieved from that investigation because the legislature is the supreme interpreter of what is sound public policy, and...