Redmond v. Quincy, Omaha & Kansas City Railroad Co.

• Decision Date: 23 December 1909
• Citation: 126 S.W. 159,225 Mo. 721
• Parties: FRED REDMOND, by his Guardian JOHN REDMOND, v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

126 S.W. 159

225 Mo. 721

FRED REDMOND, by his Guardian JOHN REDMOND, v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant

Supreme Court of Missouri, First Division

December 23, 1909

Appeal from Caldwell Circuit Court. -- Hon. J. W. Alexander and Hon Frank H. Trimble, Judges.

Affirmed.

H. T Herndon, J. G. Trimble and O. J. Chapman for appellant.

(1) An insane man cannot be party plaintiff in a lawsuit. Hayes v. Miller, 81 Mo. 424. The petition was a suggestion of "disability" (R. S. 1899, sec. 756), and was so treated by the court, but the law governing revival of causes was not followed. R. S. 1899, secs. 758, 759. (2) Appellant's motion to dismiss being equivalent to, and in effect, a plea in abatement, should have been sustained. (a) The cause had not been properly revived. R. S. 1899, secs 758, 759. (b) The probate court was without jurisdiction to inquire into the sanity of Fred Redmond, and the appointment of John Redmond guardian was null and void. Sec. 3650, R. S. 1899; Carter v. Bolster, 122 Mo.App. 135; Dixon v. People, 63 Ill.App. 590; Townsend v. Townsend, Pick. (Tenn.) 17; Borden v. Croak, 33 Ill.App. 392; Webb v. Bowler, 5 Jones (N. C.) 1; Pippin v. Ellison, 34 N.C. 64; Gibson v. Gibson, 43 Wis. 23; Railroad v. Swayne, 26 Ind. 477; Perry Admr. v. Railroad, 29 Kas. 420; Mallory v. Railroad, 53 Kas. 557. (3) Motion to suppress deposition of Fred Redmond should have been sustained. (a) He had been confined in an insane asylum because insane, and was not discharged as having recovered. The subsequent proceedings show the trick that was intended to be played. By the aid of leading questions on the important point, a deposition was to be obtained at a time and place when the jury and court could not see the plaintiff and no satisfactory cross-examination could be made. A doctor was present to aid in the taking of deposition. Stops had to be made to allow the witness to be taken to the open air. A finding of insanity was obtained in the probate court for the purpose of preventing his being put upon the witness stand. In the opinion of disinterested people who saw him frequently, he was not sane at any time. Such conduct should not be sanctioned by the court, and its perpetrators allowed to fatten by means thereof. (b) The deposition should have been suppressed, because taken before a partner of one of the attorneys, and it is immaterial that the notary was not himself an attorney. Stewart v. Emerson, 70 Mo.App. 482. A notary public in taking depositions acts as a temporary substitute for the court in which the cause is pending. In taking depositions he acts in a judicial capacity. Swink v. Anthony, 96 Mo.App. 420; Ex parte Livingston, 12 Mo.App. 83; Ex parte McKee, 18 Mo. 600; R. S. 1899, secs. 1614 and 1760; Dodd v. Northrup, 37 Conn. 216.

Pross T. Cross, John A. Clark, R. H. Musser, John A. Cross and John C. Carr for respondent.

(1) Defendant will not be permitted to raise the issue of the propriety of the appointment of John Redmond, guardian, for the reason that the judgment of the probate court making such appointment imports verity, and is binding and conclusive, and not subject to collateral attack. Hardin v. Lee, 51 Mo. 241; Crow v. Meyersieck, 88 Mo. 411; Brawford v. Wolfe, 103 Mo. 391; McKenzie v. Donnell, 151 Mo. 432; Payne v. Burdette, 84 Mo.App. 332; In re Estate Davison, 100 Mo.App. 263. (2) And such judgments and orders of probate courts are entitled to the same favorable presumption in respect to their validity, as is accorded to those of courts of general jurisdiction, and are not more open to collateral attack than judgments of the latter courts. Sherwood v. Baker, 105 Mo. 472; Price v. Association, 101 Mo. 107; Macey v. Stark, 116 Mo. 481; In re Davison Estate, 100 Mo.App. 263. (3) In any event, before the appointment of John Redmond, guardian, could be held void, the record of the probate court would have to show, affirmatively, upon its face, that Fred Redmond was not the owner of any property. Johnson v. Beazley, 65 Mo. 250; Cox v. Boyce, 152 Mo. 576. (4) The insanity of plaintiff was no cause for the abatement of the case, and plaintiff, although insane, could prosecute said suit in his own name and without a guardian, and without revival. Koenig v. Railroad, 194 Mo. 571; Allen v. Ransom, 154 Mo. 454; Crow v. Meyerseick, 88 Mo. 794; Waller v. Clay, 21 Ala. 797. (5) Even if it should be conceded that the appointment of the guardian was void (which we do not concede), yet it would in no way constitute error, or prejudice the defendant; but in that event, the appointment, being void, would be without effect, and the so-called guardian would be merely an unnecessary but harmless party -- such as could be dropped from the record at any time, since Fred Redmond, who, although insane, is still the plaintiff, can prosecute the suit in his own right and name, without guardian, and in fact employed his attorneys and instituted the suit while sane. Jones v. Railroad, 178 Mo. 538; Koenig v. Railroad, 194 Mo. 570. (6) Whatever irregularity there may have been in the taking of said deposition by the notary, on account of his relation to an attorney, was waived by defendant. Edmunds v. Griffin, 41 N.H. 529; Crowther v. Rowlandson, 27 Cal. 376.

VALLIANT J. Woodson, J., files separate concurring opinion.

OPINION

VALLIANT, J.

Plaintiff in his petition avers that he was a switchman and brakeman in the employ of the defendant railroad company; that while he was engaged in the performance of his duty as such, in defendant's switch yard at Milan, on January 11, 1903, standing on the ladder on the side of a car that was being switched, he was struck against another car that was standing on a side track, knocked off, thrown to the ground and received severe personal injuries, for which he sues to recover damages. The trial resulted in a judgment in plaintiff's favor for $ 10,000, from which the defendant appealed.

The petition alleges four grounds of negligence: first, that by negligently placing, and suffering to remain, the car on the side track in such dangerous proximity to the track on which was the car plaintiff was riding as to strike the plaintiff, the track and yards were rendered not a reasonably safe place for plaintiff to work in; second, defendant's servants in charge of the engine drawing the car on the ladder of which plaintiff was standing, saw or by the exercise of reasonable care would have seen the dangerous proximity of the car on the side track and known plaintiff's position on the ladder and the danger that threatened, yet failed to warn him; third, that seeing and knowing the danger to which plaintiff was so exposed the defendant's servants in charge of the engine ran it at a dangerous and unsafe rate of speed; fourth, that the switch yard was not properly lighted.

The original petition was filed in the name of Fred Redmond plaintiff. It was filed December 9, 1905, and on December 18, 1905, his deposition was taken in his own behalf at Lathrop, Clinton county. On April 11, 1906, one John Redmond, the father of Fred, filed in the probate court of Clinton county an affidavit alleging that Fred was of unsound mind caused by the injuries received in this accident, and praying an inquisition de lunatico be instituted. Thereupon notice to Fred was issued and served the same day and two days later, April 13, the inquisition was held and he was found to be insane, so adjudged, and John Redmond was appointed guardian of his person and curator of his estate and required to give bond in the sum of one hundred dollars, which he did and was in due form qualified as such guardian and curator. On the same day, April 13th, John Redmond filed a motion in the form of a petition in the circuit court of Clinton county in this cause, stating that Fred Redmond, although sane when he instituted this suit, had since become insane and incapable of conducting the suit, that John Redmond had been duly qualified as his guardian, and prayed to be made a party plaintiff. Defendant objected to having the cause revived in the name of the alleged guardian, particularly at that time, for the reason that defendant was not in court for that purpose, there having been no scire facias issued against it. The objections were overruled and exceptions saved.

John Redmond as guardian was then allowed, over the defendant's objection, to amend the original petition by interlining in the caption thereof after the name, Fred Redmond, the words "by his guardian John Redmond," and in the body of it a statement to the effect that although Fred was sane when the suit was begun, yet he had since become insane and John Redmond had been appointed his guardian; in other respects the petition was left as original. Defendant preserved all its exceptions to that proceeding in a term bill of exceptions filed at the time. After that a change of venue was granted to defendant to Caldwell county, and the cause was transferred to the Caldwell Circuit Court. On the first day of the next term of the Caldwell Circuit Court defendant filed a motion to dismiss the cause, because, first, if Fred Redmond has become insane since the commencement of this suit, as stated in the amended petition, the cause has not been properly revived and John Redmond is not a proper party; and, second, the probate court of Clinton county had no jurisdiction to hold an inquest or to appoint a guardian for Fred Redmond, because he had no property. To sustain its motion the defendant introduced in evidence the petition of the plaintiff to the Clinton Circuit Court for leave to sue as a poor person in which it is stated that he "has no money or property whatever." Also the record of the probate court in the matter wherein the inquisition was held and the guardian...