Nickel v. Railroad Co.

• Decision Date: 06 April 1931
• Docket Number: No. 17176.,17176.
• Citation: Nickel v. Railroad Co., 41 S.W.2d 595 (Mo. App. 1931)
• Parties: CORAY A. NICKELL, JR., RESPONDENT, v. KANSAS CITY, ST. LOUIS AND CHICAGO RAILROAD CO., APPELLANT.
• Court: Missouri Court of Appeals

41 S.W.2d 595

CORAY A. NICKELL, JR., RESPONDENT, v.KANSAS CITY, ST. LOUIS AND CHICAGO RAILROAD CO., APPELLANT.

No. 17176.

Kansas City Court of Appeals. Missouri.

April 6, 1931.

Appeal from Circuit Court of Lafayette County.— Hon. Robt.M. Reynolds, Judge.

AFFIRMED.

Lyons & Ristine and Hubbell Bros. for respondent.

S.N. Wilson and Charles M. Miller for appellant.

ARNOLD, J.

This is an action in damages for the negligent killing of plaintiff's father, Doctor Coray A. Nickell, a surgeon, who was struck by a freight train which was being operated over the rack of defendant railroad company through the town of Mayview in Lafayette county, Missouri, on February 26, 1925.

Plaintiff is a minor and, at the time the suit was brought, was sixteen years of age.The mother of plaintiff, wife of decedent, waived her rights in favor of plaintiff and this suit was instituted by Dr. R.V. Thompson, a relative, as next friend of the minor plaintiff.Defendant is a corporation organized under the laws of the State of Missouri, in April, 1877.As originally instituted the suit was directed against the Kansas City, St. Louis & Chicago Railroad Company and Wm. G. Bierd and W.W. Wheelock, as receivers of the Chicago & Alton Railroad Company, defendants.The petition was filed February 20, 1926.On March 8, 1926, plaintiff filed his first amended petition in which the Kansas City, St. Louis & Chicago Railroad Company was made the sole defendant, and the suit dismissed as to the receivers.

The first amended petition, under which the cause was tried, states plaintiff is a son of the decedent, sixteen years of age, and that his mother waived her rights in his favor; that his father, Dr. Coray A. Nickell was struck and killed on a public crossing in Mayview, Missouri, on February 26, 1925, by a freight train operated by Wm. G. Bierd and Wm. W. Wheelock, receivers of the Chicago & Alton Railroad Company, through their employees; that defendant, Kansas City, St. Louis & Chicago Railroad Company, had a "contract, lease, running arrangement and trackage right" with the Chicago & Alton Railroad Company, and that Wm. W. Wheelock and Wm. G. Bierd had been appointed receivers of said Chicago & Alton Railroad Company, and as such receivers, were operating all of the said Chicago & Alton Railroad Company's property as common carriers; and further the petition charges Wm. G. Bierd and Wm. W. Wheelock were officers of the Chicago & Alton Railroad Company, and that Wm. G. Bierd was an officer of defendant, Kansas City, St. Louis & Chicago Railroad Company, and that they were not only serving as receivers, but also in the capacity of officers and agents of the Chicago & Alton Railroad Company and defendant, the Kansas City, St. Louis & Chicago Railroad Company.To this petition defendant filed its demurrer, asserting, among other grounds, the petition fails to state facts sufficient to constitute a cause of action against the defendantKansas City, St. Louis and Chicago Railroad Company.The demurrer was duly overruled and defendant filed timely answer, which was a general denial, and as affirmative defense pleaded, among other things, that defendant was not liable for the acts of Wm. W. Wheelock and Wm. G. Bierd, receivers of the Chicago & Alton Railroad Company, or any of their employees, in the operation of the freight train in question: and if the court should interpret and construe section 9879 or section 9880.Revised Statutes 1919, as holding defendant liable for the acts of said receivers, or their employees, in the operation of said freight train, said statutes were unconstitutional and violative of section 7, article 1, of the Constitution of the United States and the Federal Transportation Act of 1920, and of section 1 of the Fourteenth Amendment of the Constitution of the United States, and section 30, article 2, of the Constitution of Missouri, as depriving defendant of its property without due process of law.

The reply was a general denial.The cause was tried to a jury, resulting in a verdict and judgment for plaintiff in the sum of $2,000 and costs.

A timely motion for a new trial being overruled, an appeal was perfected to the Supreme Court, upon the supposition that a constitutional question had been timely raised.Upon consideration that court found the record fails to develop the timely raising of a constitutional question so as to give that tribunal jurisdiction and accordingly transferred the case to this court for determination.

The evidence developed some further facts necessary to a full understanding of the case.Defendant, the Kansas City, St. Louis & Chicago Railroad Company, was incorporated under the laws of the State of Missouri in April, 1877, and in 1878, its property was leased to the Chicago & Alton Railroad Company and in 1900, said last named company made a lease to the Chicago & Alton Railway Company which concerned the property of defendant.In 1906, the Chicago & Alton Railroad Company consolidated with the Chicago & Alton Railroad Company under the name of the Chicago & Alton Railroad Company.The consolidated company, under the name of the Chicago & Alton Railroad Company operated the property of defendant.Kansas City, St. Louis & Chicago Railroad Company, under the lease made in 1878, until 1922, at which time, pursuant to a proceeding instituted in the Eastern Division of the Northern District of the United States District Court of the State of Illinois, Wm. G. Bierd and Wm. W. Wheelock were appointed receivers of the Chicago & Alton Railroad Company.The evidence shows Wm. G. Bierd was president of defendant company and also president of the Chicago & Alton Railroad Company, during the years 1924 and 1925, at the time plaintiff's father was killed; that said Wm. G. Bierd, at the same time, was also a member of the board of directors of defendant company and a member of the board of directors of the Chicago & Alton Railroad Company; that he maintained his office as a member of the board of directors of both lessor and lessee at 340 West Harrison Street, Chicago, Illinois, that being also his office as receiver.

The testimony also shows that one James Williams whose office also was at 340 West Harrison Street, Chicago, was secretary and treasurer of both lessor and lessee, during 1924 and 1925; and that Wm. G. Bierd and Wm. W. Wheelock were serving as officials of both lessor and lessee while they were serving as said receivers, and James Williams as secretary and treasurer of both lessor and lessee, at the time of the injury complained of.The record shows no receiver was ever appointed for defendant company and it was not a party to the receivership.The order appointing receivers authorized them to operate in their discretion such property as lessee controls under lease.The order further authorized the receivers "to make appropriate payments from time to time in their discretion" ... "of rents and other necessary trackage and other charges heretofore accrued or hereafter accruing under existing leases and trackage and other contracts, the payment of which in the judgment of said receivers may be necessary for the preservation of the rights and titles of said railroad company, or any thereof."

The order specified William W. Wheelock and Wm. G. Bierd are appointed receivers of the Chicago & Alton Railroad Company and all of the railroads and other property and assets, real, personal or mixed, of whatever kind and description, and wherever situated, including "leases, contracts, muniments of title, bills receivable, rents, issues, profits and income accruing, accrued and hereafter to accrue, as well as all leasehold interests and operating and other contracts, traffic agreements, and all rights, interests, assets, privileges and franchises of said railroad company of every kind and character."

The said receivers were authorized immediately to take possession of all the property and assets of every kind and character, "as aforesaid, wherever situated or found, whether in this State and district or elsewhere; to run, manage and operate the said railroads and property including in their discretion such railroads and property as the said railroad company holds, controls or operates under lease trackage agreements or otherwise, and in such manner as will, in their judgment, produce the most satisfactory results ..."

The railroad of defendant company is described in the lease in evidence as running "from the city of Mexico in the County of Audrain, in the State of Missouri through the counties of Audrain, Boone, Randolph, Howard, Saline, Lafayette and Jackson, to the city of Kansas City, in the County of Jackson, in said State, and to lease the same."

There are two assignments of error, to-wit, (1)the trial court erred in overruling de...