Koenig v. Union Depot Railway Company
| Decision Date | 06 March 1906 |
| Parties | CHARLES A. KOENIG et ux. v. UNION DEPOT RAILWAY COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis County Circuit Court. -- Hon. Jno. W McElhinney, Judge.
Affirmed.
Boyle & Priest and Kiskaddon & Matthews for appellant.
(1) By statute, where a disability is suggested by the adverse party, it is the duty of the court to continue the case until a representative can be brought in. R. S. 1899, secs. 756, 757. (2) It is the duty of a guardian of an insane person to prosecute and defend all actions. R. S. 1899, sec. 3667; Hayes v. Miller, 81 Mo. 424; Reed v Wilson, 13 Mo. 30. (3) Actions must be brought and prosecuted by the guardian or next friend of a lunatic. Whetstone v. Whetstone, 75 Ala. 495; Dorsheim v Roosback, 3 C. E. Green (N. J.) 438; Hayes v. Miller, 81 Mo. 424; Railroad v. Manger, 78 Ill. 300; Light v. Light, 25 Beav. 248; Reece v. Wilson, 13 Mo. 29; Nelson v. Duncomb, 9 Beav. 211. (4) Where judgment is rendered against anyone who is not at the time sui juris, if not void, it is irregular, and erroneous. Therefore, defendant has a right to object to proceedings in a case, when he learns that a plaintiff has become insane. Such plaintiff is incapable of appearing by attorney, cannot make a valid contract, or do any other act requiring the exercise of a sane volition. If the judgment should be against him, he would have a right to repudiate it, or a guardian, if afterwards appointed, could do it in his name and for him. Higgins v. Peltzer, 49 Mo. 157; Lat-shaw v. McNees, 50 Mo. 381; Powell v. Gott, 13 Mo. 459; Townsend v. Cox, 45 Mo. 401; Gamble v. Dougherty, 71 Mo. 602; Harkness v. Dysart, 36 Mo. 47; Branstetter v. Rives, 34 Mo. 318; Gauss v. Hussmann, 22 Mo.App. 115. (5) Insanity is a fact like death, marriage, or infancy. It is not necessary that there should have been an administrator or executor appointed at the time of the suggestion of the death of a party, nor, in like cases, is it necessary that there should have been a guardian appointed for either an infant or insane person. The fact of death, infancy, marriage or insanity being suggested, unless the suggestion is disputed, it would be the duty of the court to issue scire facias to bring in the representative, if there was one, or continue the case, if there was none. If the suggestion should be disputed, then the court, it is conceived, might take evidence of the fact. But, in the case at bar, the fact of the insanity of one plaintiff was brought out by a person assuming to act as such insane person's attorney, and this was the first information that defendant or its counsel had of the fact. A suggestion was then made, and the court was then requested to act on such suggestion. The defendant offered to prove that the plaintiff was hopelessly and incurably insane -- had paresis or softening of the brain -- but the court overruled the offer, and defendant excepted. (6) The death or insanity of a client revokes the authority of the attorney to appear for him. Hunt v. Rousmanier, 8 Wheat. (U.S.) 174; Bunce v. Gallagher, 5 Blatch. (U.S.) 489; Berry v. Skinner, 30 Md. 567; Matthieser v. McMahon, 38 N.J.L. 537; Hill v. Day, 34 N.J.Eq. 150; Blake v. Garwood, 42 N.J.Eq. 276; Wallace v. Manhattan, 2 Hall (N.Y.) 495; Prior v. Kiso, 96 Mo. 314. (7) The plaintiff being insane, no proceeding could bind him unless he or his guardian elected that it should. Suppose the verdict had been against him -- he, or his guardian, would have the right to say that the action never abated, and at any time come into court and, by proceeding in the nature of a writ of error coram nobis, have the judgment set aside, and the case tried again. Toney ex parte, 11 Mo. 663; Lashaw v. McNees, 50 Mo. 384; Powell v. Gott, 13 Mo. 460; Walker v. Deaver, 79 Mo. 674; Gray ex parte, 77 Mo. 160; Craig v. Smith, 65 Mo. 536. (8) Instruction 14 asked by defendant, and refused by the court, ought to have been given. In that instruction defendant left it to the jury to find if it were a fact that defendant's motorman kept watch and sounded his gong. In addition to that it was left to the jury to find under the facts as they were disclosed, whether deceased was in danger for such time as to become apparent, so that the motorman by ordinary care might have avoided the accident.
Lee Meriwether for respondents.
(1) The greater part of appellant's brief is devoted to an earnest, if not unselfish, appeal to this honorable court to protect the rights of one of the respondents, whom appellant alleges to be insane. In what manner is he to be protected? Why, by depriving him of a judgment for $ 5,000! No matter that respondent Charles Koenig employed counsel in the outset, no matter that counsel obtained for his client all that he asked, and all that was due him; if, between the time of his retaining counsel and the rendering of full judgment in his favor, respondent became insane, then, in justice to said respondent, his judgment must be annulled so as to afford opportunity for his suit to be brought by an attorney appointed for him, instead of by the attorney selected by respondent himself. Where a litigant becomes insane a court may properly interfere to safe-guard the moneys awarded him; a novel theory, however, to "safe-guard" an unfortunate litigant by taking away what a court and jury have awarded him for the sole purpose of giving him -- what? Why, the blessed right of bringing his suit all over again, by another lawyer. But, assuming that appellant's keen regard for the rights of an insane respondent should be satisfied in the manner indicated (by depriving such respondent of the judgment awarded him) -- what ground is there for assuming the insanity of Charles A. Koenig? Can a mere "suggestion" suffice to stop a suit or rob a litigant of the fruits of a legal victory? Like innocence, sanity is assumed until the contrary be proved. And the law provides the method for establishing a citizen's insanity. No mere "suggestion," nay, not even the positive opinion of doctors and surgeons is permitted to constitute prima facie evidence of insanity. Appellant cites section 756, Revised Statutes 1899, as showing that it is the duty of a court to continue a case where disability is suggested; the language of the statute is, that the court may (not shall) continue the case. Appellant urges that the insanity of a client revokes the authority of the attorney to appear for him. The client, through guardian properly appointed, may dispute the attorney's right further to appear for him, but there is nothing in the cases cited by appellant to show that the adverse party may dispute attorney's right. Prior v. Kiso, 96 Mo. 303. In the case at bar there is a judgment to overthrow, and it is not the client who disputes the attorney's authority. (2) Concerning appellant's criticism of the instructions, it need only be said that the instructions were framed in accordance with the opinion of this court handed down in the October term of 1902 (173 Mo. 698).
This is the second appeal of this cause. The first is reported in 173 Mo. 698. The evidence is fully stated in the opinion of Judge Burgess on the former appeal, and it is unnecessary to reproduce it in full. The plaintiffs are respectively father and mother of Amelia Koenig, their infant daughter, who was struck and killed on the 8th day of May, 1899, by one of defendant's street railway cars at the intersection of Arsenal street and Compton avenue, in the city of St. Louis. Amelia was about six years old at the time she was killed. The defendant is a corporation organized under the laws of this State, and operating a street railway with double tracks on Arsenal street. Its cars are propelled by electricity. On the 8th day of May, 1899, between two and three o'clock in the afternoon of that day, one of the defendant's cars proceeding westward on Arsenal street, struck Amelia, at or near the crossing of the west line of Compton avenue, with such force that she died an hour or two thereafter. The testimony tended to show that from Michigan avenue, the first street east of Compton, down to Compton there was a steep descending grade in defendant's railway track. The negligence alleged was that the defendant recklessly and negligently ran its car with great speed in excess of the ordinance of the city of St. Louis regulating the speed and operation of street railway cars, and in violation of said ordinance and with such rapidity that the motorman lost control thereof so that he could not stop the same at the crossing on Compton avenue; that while running down said grade to Compton avenue, the motorman neglected and failed to sound the gong or bell on said car, or to give any other warning of its approach, and failed and neglected to keep a proper lookout for persons crossing said Arsenal street at Compton avenue, and neglected to lower the fender and apply the brake until after said Amelia had been struck. The answer was a general denial. A change of venue was granted to the St. Louis County Circuit Court. After the reversal of the judgment on the first trial by this court, the cause was retried at the May term, 1903, of said court, and resulted in a verdict for the plaintiff in the sum of five thousand dollars. Motions for new trial and in arrest were filed in due time and overruled, and an appeal granted to this court. Various errors are assigned on this appeal which will be considered in the order of their presentation in the brief of counsel for the defendant.
I. In the course of the examination of Mrs. Lizzie Koenig, the mother of Amelia Koenig, she was asked: "Where is your husband, Charles Koenig?" and she answered, ...
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