McCall v. Pitcairn

• Decision Date: 24 November 1942
• Docket Number: 46094.
• Citation: 6 N.W.2d 415,232 Iowa 867
• Parties: McCALL v. PITCAIRN et al.
• Court: Iowa Supreme Court

6 N.W.2d 415

232 Iowa 867

McCALL v. PITCAIRN et al.

No. 46094.

Supreme Court of Iowa

November 24, 1942

Harry S. Greenleaf and W. B. Hays, both of Centerville, for appellants.

Valentine & Valentine, of Centerville, for appellee.

HALE Justice.

The plaintiff in this action was a conductor on a train of the Wabash Railway running from Moulton, Iowa, to Ottumwa, Iowa, and was so engaged on January 15, 1941, the date of the alleged injury. This Ottumwa line connects at Moulton with a line operated by defendants from Des Moines, Iowa, to Moberly Missouri. On January 15th plaintiff states that he took his regular run to Ottumwa and returned in the evening of the same day. It was stormy, having been raining lightly and sleeting and the rain was freezing on the ground. A part of plaintiff's daily duties consisted of switching operations in the Moulton yards in the morning and in the evening after returning from his Ottumwa run. About 9 o'clock in the evening on said January 15, 1941, he had returned from Ottumwa with 12 freight cars, including three cars of meat and three carloads of barley, all destined for St. Louis, Missouri, or beyond. While switching the cars in the Moulton yards in order to get the cars destined for out of the state ready for Train No. 98 from Des Moines to pick up and take to Moberly, Missouri, he was injured in throwing what is known as No. 3 switch, so as to shove the cars of his train through the No. 3 switch track onto the lead track to be picked up by Train No. 98. Train No. 98 makes no stops between Moulton and the Missouri line.

The evidence shows that while so engaged he slipped and fell and slid down a bank about 20 feet, then came back up and went on with his work. He held a lighted lantern in his left hand and was giving signals to the engineer and the brakeman on the train with which he was doing the switching. He finished his work as a conductor in switching the cars and walked home with one of the brakemen. The brakeman was the only person he told about the fall and he made no complaint at the time to anyone else.

There was evidence that up to January 11, 1941, the ordinary and suitable yard switch was in use at No. 3 track. Such switch was thereafter damaged and it is claimed a heavy main line switch was installed temporarily and was in use on January 15, 1941. The difference between the regular yard switch and the main line switch was that the latter had a long reach rod, which required the switch to be placed at the extreme end of the ties to which it was fastened, overhanging a steep bank, and it was therefore necessary that anyone throwing the switch would have to stand with his feet wide apart at the decline where the footing was uncertain and difficult. The switch had only one safety catch. As plaintiff's testimony shows, while attempting to throw the No. 3 switch in question, he fell, and in sliding down the bank twisted and strained in an effort to check his fall. He was checked partially by some partly buried ties on the bank and slid to a path where his fall was finally stopped. He climbed back, threw the switch and proceeded home.

Plaintiff worked through the following day but testified that his side hurt continuously, which pain increased the next day and the day following. On the day after that he went to the Wabash Railway Company physician in Moulton, who first prescribed medicine, and on the following day gave the plaintiff a physical examination and diagnosed his condition as an inguinal hernia and recommended an operation. The evidence does not show that there was any intervening accident or injury between January 15, 1941, and the time when the injury was so diagnosed. There was evidence that for some time the plaintiff had been suffering from an umbilical hernia. Plaintiff stopped work on January 23rd and on January 25th was operated on for hernia at the Wabash hospital at Decatur Illinois. He remained in the hospital until February 15 1941, but did not return to work until April 1st, where he continued on his old run until May 11th, and thereafter on account of his condition took a lighter run which paid less money and required the payment of additional expense money. Thereafter, on October 6, 1941, he returned to his old run. There was evidence on the part of the plaintiff that the main line switch was in use on January 15th but there was also evidence on the part of the defendants that such switch was not installed until January 18th and was thereafter replaced by a standard switch on January 20th. Plaintiff claimed damages for loss of wages by reason of total disability from January 23, 1941, to March 31, 1941, loss of wages and additional expense money on the lighter run from May 11th to October 6th and for pain and suffering. Defendants' claim was that if the plaintiff had a hernia, it was not caused by the negligence of the defendants or any of their employees, but was a congenital defect which appeared some time after the plaintiff had fallen while on duty. They further claim that the installation of the main line switch was the usual and customary thing to do until the standard switch could be installed and they claim only two days were consumed in making the change.

I. The receivers and the railway company were joined as defendants. The first claim of the appellants is that the court erred in overruling defendants' motion for directed verdict, apparently basing their error on the overruling of Ground 1 of their motion for directed verdict, which is as follows: "(1) That there is no evidence that the defendants named in the plaintiff's petition are in fact the receivers of any railway, or that the plaintiff was in the employ of any of the defendants named in said petition."

Without reviewing all the testimony on that subject, we think that the evidence does show that the railway was being operated by the receivers. The evidence consists of various exhibits, such as vouchers for wages and orders issued in the name of such receivers. While appellants urge that agency cannot be proved by the declarations or statements of the alleged agents, there is reason to believe that evidence that the receivers were operating the road for at least a number of months is sufficient to warrant the belief that they were actually in charge of the road, especially since under the record there is nothing but a general denial of all the allegations of the petition and at no place in the record is there any objection of any kind on the ground that such receivers are not proper parties defendant. If they were improperly joined their remedy was by motion, and by waiting until the close of all the plaintiff's testimony before making any objection, said receivers are estopped from then asserting it. See Halligan v. Lone Tree Farmers Exchange, 230 Iowa 1277, 300 N.W. 551, citing Constantine v. Rowland, 147 Iowa 142, 124 N.W. 189; Lull v. Anamosa Nat'l Bank, 110 Iowa 537, 81 N.W. 784, and Miller v. Keokuk & Des Moines Ry. Co., 63 Iowa 680, 16 N.W. 567. In the Halligan case it is said [230 Iowa 1277, 300 N.W. 555]: "It is next urged that the trial court erred in treating the case as having three defendants, the corporation, Lenz, and Hoskins. In plaintiff's petition, appellant Lenz was referred to 'as president thereof' and Hoskins 'as manager thereof' (that is, of the corporation). Appellants' claim is that the officers were not sued in their individual capacity but merely as agents of the corporation which was the sole defendant. It is sufficient answer to this complaint that appellants themselves in their answer and other pleadings and at least until after appellee rested his case clearly treated the case as brought against three defendants and did not move to strike for misjoinder of parties." See also, Manker v. Phoenix Loan Ass'n, 124 Iowa 341, 100 N.W. 38, wherein in a proceeding against such loan association the receivers had appeared and defended. The court says at page 344 of 124 Iowa, at page 38 of 100 N.W.: "But if this were not the established rule in this state, it is clear that when a receiver has appeared and defended, and, as in this case, has invoked the affirmative judgment of the court, he cannot, after an adverse decision, question the jurisdiction to which he has voluntarily submitted or himself invoked." Citing various cases. Cooley v. Smith, 17 Iowa 99; Elkhart Car-Works Co. v. Ellis, 113 Ind. 215, 15 N.E. 249; Mulcahey v. Strauss, 151 Ill. 70, 37 N.E. 702. "Moreover, when the receivers voluntarily appeared and submitted to the jurisdiction of the court, it will be presumed that they were authorized to defend, and such presumption will obtain until the contrary is affirmatively shown. The presumption is that a general receiver has authority to sue, and, when the receivers in these cases filed petitions asking the foreclosure of the mortgages given to the association, it was an invitation to the court to settle all differences between themselves, as receivers, and the plaintiffs, growing out of the transactions connected therewith."

We think the receivers were proper parties defendant.

II. The second objection of the appellants is that the court erred in overruling defendants' motion to withdraw from the consideration of the jury any and all claims against the Wabash Railway Company. The same rule as is discussed in the preceding division should apply. If the railway company was improperly joined the matter should have been disposed of by motion, but by appearing and pleading we think the railway company is estopped from asserting this objection.

As to this and the preceding objection we see no injury of any kind has been suffered by either the railway company or the receivers. Should a joint judgment be entered against them the payment by one will absolve...