McIntyre v. St. Louis & San Francisco Ry. Co.

• Decision Date: 30 December 1920
• Docket Number: No. 21435.,21435.
• Citation: 286 Mo. 234,227 S.W. 1047
• Parties: McINTYRE v. ST. LOUIS & SAN FRANCISCO RY. CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Supreme Court

227 S.W. 1047

286 Mo. 234

McINTYRE v. ST. LOUIS & SAN FRANCISCO RY. CO.^*

No. 21435.

Supreme Court of Missouri, Division No. 2.

December 30, 1920.

Motion for Rehearing and to Transfer to Banc Overruled January 10, 1921.

Appeal from St. Louis Circuit Court; A. B. Frey, Judge.

Action by Joseph S. McIntyre, administrator of the estate of Walter Lee Clark, deceased, against the St. Louis & San Francisco Railway Company. From judgment for plaintiff, "defendant appeals. Affirmed.

W. F. Evans, E. T. Miller, and A. P. Stewart, all of St. Louis, for appellant.

Robert W. Hall and Earl F. Nelson, both of St. Louis, for respondent.

WHITE, C.

The plaintiff, as administrator of the estate of Walter Lee Clark, deceased, recovered judgment against the defendant, in the circuit court of the city of St. Louis, in the sum of $16,000, damages for the alleged negligent killing of said Clark by the defendant. Clark was employed by defendant as a switchman, and, according to a stipulation of the parties, was engaged in interstate. commerce. The suit was brought under the Federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665).

Frank C. Mueller & Co. had a contract with the city of St. Louis to construct a viaduct along Chouteau avenue over the railroad tracks of the defendant and of the Missouri Pacific Railroad Company, and it appears from the evidence that work on the viaduct had been in progress for several months at the time Clark was killed. The St. Louis & San Francisco Railroad had several tracks, including two main tracks passing under this viaduct, the inside rails of which were eight feet apart. Midway between those two tracks was placed some falsework, consisting of two upright timbers about 4×6 inches, and standing about four feet apart, parallel with the main tracks, and extending from the ground up to the bridge in order to support the forms in which the concrete was poured in constructing the viaduct.

On the 26th of April, 1917, the crew with which Clark was working as a switchman had been westward in the yards to the west part of the city, and in coming back had picked up two empty freight cars, shoving them eastward on the south main track passing under the viaduct and along by the falsework. The train consisted of the engine, tender, and the two freight cars. The engine was headed west, and was pushing the cars backward. Clark, with another switchman, Walter Griffith, was on the front car farthest from the engine. As this train approached the viaduct Griffith climbed down the ladder, or grabirons, at the corner of the moving car, and jumped to the ground two or three car lengths from the viaduct. At that time Clark was on top of the same car with a lantern. It was between 9 and 10 o'clock at night, and there was a drizzling rain. Clark then attempted to descend by the ladder, and as the car ran under the viaduct he struck against the upright timbers composing the falsework mentioned. He was knocked from his position and almost instantly killed.

The timber against which Clark was driven was four feet from the rail on which the car was running. The same car afterwards was pushed back to the place, and it was found that the space between the grabirons on that car and the falsework was only ten inches, not sufficient to clear a man on the ladder.

No light or signal of any kind was displayed at the falsework to indicate its presence. Clark had been a switchman in the employ of the railroad company for a considerable time, but had been only four or five days with the particular switching crew with which he operated that day.

The ground of negligence alleged in the petition on account of which the plaintiff seeks to recover was the failure of the defendant to furnish a reasonably safe place in which to work, in that it failed to have a red lantern or other signal placed on the falsework to warn Clark of the danger, when the company knew, or by the exercise of reasonable care would have known, that the false timbers mentioned were in close proximity to the track, so as to make it unsafe for Clark to perform his duties.

The answer of defendant alleges that Clark was killed solely by his own negligence and his failure to exercise ordinary care to look out for himself when he knew, or by the exercise of ordinary care should have known, of the falsework in close proximity to the track. Further, it set out certain rules, which it avers if observed by Clark, would have prevented his injury, and alleges defendant gave a certain specific warning to employees, switchmen, and yardmen of the existence of the very falsework which caused the death of Clark, and therefore it was not negligent.

It is further alleged that Clark, in entering the employ of defendant, assumed the risk incident to running railroads along in close proximity to the falsework.

The answer also contains a general denial and a specific denial that the plaintiff was duly appointed and qualified as administrator of the estate of Walter Lee Clark, as alleged in the petition. The facts in relation to each of these general defenses will be noted more particularly in consideration of the points involved. The defendant presented a demurrer to the evidence, which was overruled. A verdict and judgment for plaintiff followed, from which defendant appealed.

I. The appellant challenges the legal capacity of the plaintiff to sue. The point is that Clark was killed April 26, 1917, and letters of administration on his estate were granted March 7th, by the probate court, to Joseph S. McIntyre. There was no showing that the widow of Walter Lee Clark had renounced her right to administer. It is argued that inasmuch as the widow, under section 15, R. S. 1909, had the first right to administer on the estate, the court, under sections 16 and 17, R. S. 1909, could not within 30 days appoint another person to administer without a showing that the widow had renounced her right to administer. Appellant therefore claims the court was without jurisdiction to appoint McIntyre administrator.

A judgment of the probate court, on matters within its jurisdiction, is as conclusive and impervious to collateral attack as the judgment of a court of general jurisdiction. When a court, having jurisdiction of the class of actions like the one before it and of the persons interested, must determine whether it has jurisdiction by the ascertainment of facts in pais, its determination " is conclusive. If, in the absence or silence of the record as to any fact necessary to give jurisdiction, such court retains it, the finding of jurisdictional facts is presumed. In such case the judgment cannot be attacked collaterally by showing that the court erroneously found the facts which would give it jurisdiction. Hadley v. Bernero, 103 Mo. App. 549, loc. cit. 557, 558, 78 S. W. 64; In re Estate of Davison, 100 Mo. App. 263, loc. cit. 269, 73 S. W. 373; Adams v. Cowles, 95 Mo. loc. cit. 509, 8 S. W. 711, 6 Am. St. Rep. 74; Cox v. Boyce, 152 Mo. 576, loc. cit. 582, 54 S. W. 467, 75 Am. St. Rep. 483; Carter v. Carter, 237 Mo. loc. cit. 632, 633, 141 S. W. 873; Price v. Springfield Real Estate Ass'n, 101 Mo. loc. cit. 118, 14 S. W. 57, 20 Am. St. Rep. 595; Sullinger v. West, 211 S. W. loc. cit. 67; St. Charles Say. Bank v. Thompson & Gray Quarry Co., 210 S. W. loc. cit. 870; Roloson v. Riggs, 274 Mo. loc. cit. 530, 203 S. W. 973; Brawford v. Wolfe, 103 Mo. 391, 15 S. W. 426; Macey v. Stark, 116 Mo. 496, 21 S. W. 1088. In some of the cases cited it is stated that if the record on its face shows an absence of the facts which are necessary to confer jurisdiction, the court is without jurisdiction and the judgment is a nullity. But that would not be the case if the facts showing want of jurisdiction, or absence of facts showing jurisdiction, had to be ascertained outside of the record. Macey v. Stark, 116 Mo. loc. cit. 496, 21 S. W. loss; Hadley v. Bernero, 103 Mo. App. loc. cit. 558, 78 S. W. 64. In the present case the record of the probate court relating to the appointment of the administrator was not introduced, nor was any entry from the record of that court offered in evidence. The plaintiff simply offered the letters of administration granted to the plaintiff, which, on their face, did not show that the widow had renounced her right to administer. There was no showing whatever as to whether or not she had renounced, and it would have been incompetent for the defendant to show by parol or other evidence outside the record itself that she had not renounced, to overcome the presumption which attached to the order of the probate court in making the appointment.

But appellant contends that a stranger to a judgment may attack it collaterally; citing Russell v. Grant, 122 Mo. 161, 26 S. W. 958, 43 Am. St. Rep. 563. A stranger to a judgment may in some instances attack the judgment collaterally when a party to it cannot, but the stranger must have acquired an interest in the subject-matter of the action prior to the rendition of the judgment. Abington v. Townsend, 271 Mo. loc. cit. 615, 197 S. W. 253. The defendant in this case had no interest whatever in the estate of Walter Lee Clark, and therefore was not in the position of a stranger who could make such an attack on the judgment on any account. The effect of the appellant's position is to attempt to invalidate the judgment of the probate court by disputing the facts which the court must have found in order to render the judgment. On that theory of the law no judgment would ever settle any question of fact.

II. The suit was brought on the theory that Walter Lee Clark left a widow, Mary Catherine Clark, who was dependent upon him for support and maintenance. The appellant denies that fact, and asserts there is no proof that Mary Catherine Clark was ever the wife of Walter Lee Clark, and the demurrer should have been sustained for that reason. The plaintiff admitted that no marriage ceremony ever was performed between the two, but offered...