Pope v. Missouri Pac. Ry. Co.

• Decision Date: 02 March 1915
• Docket Number: No. 16212.,16212.
• Citation: 175 S.W. 955
• Parties: POPE v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

175 S.W. 955

POPE v. MISSOURI PAC. RY. CO.

No. 16212.

Supreme Court of Missouri, Division No. 1.

March 2, 1915.

Rehearing Denied April 1, 1915.

Appeal from Circuit Court, Jackson County; Hermann Brumback, Judge.

Action by Horace G. Pope, administrator of Jeanette A. Frisby, against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Martin L. Clardy, of St. Louis, and Edward J. White, of Kansas City, for appellant. W. S. Glass, of Marysville, Kan., and T. J. Madden, of Kansas City, for respondent.

BLAIR, J.

Two of defendant's trains collided, killing a passenger named William J. Frisby. Jeanette Frisby brought this action, as Frisby's widow, and got judgment for $10,000, but died after defendant appealed and before the case was docketed here. The cause was revived in the name of her administrator.

Mere than a year after the petition was filed, defendant answered, and five days later filed a motion in which it was stated that plaintiff's claim to have been Frisby's wife was based upon a common-law marriage agreement, and that the heirs of Frisby denied he had ever been married, and had secured the appointment of an administrator, who had sued defendant in Johnson county for damages for Frisby's death.

The motion further expressly states that:

"Defendant does not admit that it is liable to any one for or on account of the death of said William J. Frisby, but says that, if it should be held liable, it ought not to be twice required to pay the penalty, and that it has no means of determining whether, if any cause of action exists in favor of any one, it exists in favor of the above-named plaintiff or of said Craig, as administrator."

Proceeding, defendant prayed an order of court requiring the administrator to come in and plead, or that plaintiff amend and make him a party, "so that the entire controversy can be settled in one action," and that the prosecution of the case be enjoined until the administrator should have interpleaded or had been brought in. With this motion defendant filed a document, which purported to be an entry of appearance by the administrator of the estate of William J. Frisby, wherein the administrator alleged he had brought suit against defendant for damages for Frisby's death, and that Jeanette Frisby was never the wife of William J. Frisby, and that her claim was fraudulent; also that movant had an interest in the controversy adverse to plaintiff in that he alone, as administrator, was entitled to recover for the death of William J. Frisby. This was signed by W. H. Martin and H. W. Curry, as "attorneys for defendant." This document was designated in the record as an "entry of appearance and plea in abatement." Some months later this was stricken from the files, but no exception was preserved, and neither did the administrator attempt to appeal.

Subsequently defendant's motion, epitomized above, was overruled, and two months later defendant filed an amended answer, in which it admitted it was a railway corporation, and that, at the time and place mentioned in the petition, an accident occurred, "resulting from some inability" of its dispatcher to communicate orders to employés in charge of the train, and that thereby Frisby was killed, "but defendant denies each and every other allegation in said petition contained." Proceeding, the answer avers Frisby's parents and brothers and sisters survived him and had procured the appointment of an administrator, who, after this action was instituted, had begun an action against defendant in the Johnson circuit court upon the alleged cause of action arising from the death of said William J. Frisby, which suit is still pending in said court; that the alleged causes of action in the two actions "are the same, and both arise from the death of said William J. Frisby; that this defendant ought not to be required to defend against both of said suits; and that said administrator is a necessary party to this suit, to the end that i full and complete determination of the controversies involved may be herein determined, and to avoid a multiplicity of suits."

That portion of the answer epitomized in the preceding paragraph was stricken out on plaintiff's motion, but no exception to that ruling was preserved.

Plaintiff testified. Her testimony does not show a statutory or ceremonial marriage, but is to the effect that she and Frisby, on November 25, 1905, assumed the marriage relation by explicit agreement then to become husband and wife. There was evidence they thereafter lived together as husband and wife, were reputed to be such, and openly recognized each other as husband and wife, and were introduced as such. Other facts necessary to a decision are stated in the opinion.

I. In support of their contention that it was error to overrule defendant's motion to bring in the administrator of Frisby's estate, counsel treat the motion as in legal effect a bill of interpleader and rely upon doctrines applicable to such proceedings.

An impartial, disinterested stakeholder, acting in good faith, and having reasonable cause for a real doubt as to which of certain claimants is entitled to a fund in his hands or to a debt or duty owed by him, may ordinarily, if he fears injury from conflicting claims, bring the claimants into court and require them to litigate their conflicting rights to the thing concededly due one of them. Little v. Union Trust Co., 197 Mo. loc. cit. 291, 94 S. W. 890. It is settled law that if, in such a proceeding, the amount due is in dispute between plaintiff and defendant or either of them, the bill cannot be maintained. Glasner v. Weisberg, 43 Mo. App. loc. cit. 219. That defendant could not, on the showing made in the motion, maintain such a proceeding by motion, bill, or otherwise, is apparent. The motion itself denies all liability, and consequently denies the existence of any fund concededly due for which the claimants could have litigated, had the administrator been brought in. The motion disclosed that defendant's object was to continue to participate in all further proceedings and to defend against any liability to either claimant, meanwhile embroiling them with each other.

No case is cited authorizing a tort-feasor to require persons, each claiming the sole right to damages for the same tort, simultaneously to litigate with it the question of its liability and, with each other, their conflicting claims. The remarkable situation which would result would be far more productive of injustice than it will be to require defendant to take his chances on two juries coming to the same conclusion on the facts. The doctrine invoked has no possible application to facts like those set up in the motion.

What has been said disposes of the ruling on the administrator's "entry of appearance and plea in abatement," so far as concerns defendant's right to complain of that ruling, even had an exception been preserved. It also applies to the ruling on the motion to strike out part of the amended answer.

The fact that defendant's trial counsel in his opening statement admitted liability for $2,000 does not aid defendant. The statement came long after the rulings complained of were made, and, further, that statement left in dispute the difference between the minimum and maximum amounts of possible recovery fixed by the statute. Had the motion or the answer admitted defendant's obligation to pay the maximum amount fixed by the statute or a less sum, which plaintiff and the administrator had agreed to be the amount to which the rightful claimant was entitled, a different question would have been presented.

II. (a) It is contended plaintiff, under the statute (section 6354, R. S. 1909), was not competent to testify to the marriage agreement or facts tending to establish it. No such objection was made in the trial court. She was examined and cross-examined at length, but her competency was not questioned there, and consequently cannot be questioned here. Conrey v. Pratt, 248 Mo. loc. cit. 586, 587, 154 S. W. 749.

(b) There was no error in admitting evidence of Frisby's admission of his marriage to plaintiff. Topper v. Perry, 197 Mo. loc. cit. 540 et seq., 95 S. W. 203, 114 Am. St. Rep. 777. On this principle references of Frisby to plaintiff as his wife and his introduction of her as such were competent.

(c) Objections made to numerous questions in depositions read at the trial are founded on reasons which can be invoked only when like objections are made at the time depositions are taken (section 6413, R. S. 1909; Williamson v. Brown, 195 Mo. loc. cit. 328, 329, 93 S. W. 791), and these need not be dealt with seriatim. Likewise, objections to questions in depositions not in the record before us cannot be considered.

(d) Since acknowledgment, cohabitation, and reputation constitute presumptive evidence of marriage (Cargile v. Wood, 63 Mo. loc. cit. 512), evidence that plaintiff and Frisby were reputed to be man and wife was admissible.

(e) It is urged, however, that testimony to the effect that the lawfulness of plaintiff's marriage to Frisby was "never questioned" was error. It is argued this was a mere conclusion of the witness. It has been held reversible error to exclude evidence of this character offered by a defendant in a criminal case. State v. Grate, 68 Mo. 22; State v. Brandenburg, 118 Mo. 181, 23 S. W. 1080, 40 Am. St. Rep. 362. The court said:

"That reputation may, with justice, well be called good which no slanderer has ever ventured even so much as to question."

The principle is applicable here for that reason, and also for another; i. e., there is authority holding, in effect, that reputation of marriage must be unquestioned before it can operate as a part of the foundation for an inference of marriage. The contention cannot be sustained.

III. It is contended that plaintiff's testimony did not disclose a contract of marriage when measured by the rules announced in Topper v....