Robinson v. The Chicago

• Decision Date: 10 July 1915
• Docket Number: 19,437
• Citation: 150 P. 636,96 Kan. 137
• Court: Kansas Supreme Court
• Parties: HATTIE ROBINSON, Appellee, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

150 P. 636

96 Kan. 137

HATTIE ROBINSON, Appellee, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

No. 19,437

Supreme Court of Kansas

July 10, 1915

Decided July, 1915.

Appeal from Phillips district court; WILLIAM S. LANGMADE, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Death of Husband--Action--Mental Capacity of Widow to Make Settlement. An instruction that, upon the issue whether a claimant was mentally incapable of doing business at the time of a settlement, the jury may consider the adequacy of the amount paid, held, under the circumstances stated, to have been erroneous as attaching too much importance to that phase of the matter.

2. SAME--Jurisdiction of Courts of Foreign State. An action may be maintained in another state, having laws similar to our own, by an administrator there appointed, for the death in Kansas of the resident of a third state, notwithstanding the previous appointment there of a domiciliary administrator, who could maintain no such action, because not permitted by the laws of his state.

3. SAME--Judgment--Reversal--When New Trial is Unnecessary. Upon the reversal of a judgment a new trial need not be ordered where the result would turn upon the proof of the laws of another state. Where such laws are capable of exact ascertainment, a judgment may be ordered by this court according to the fact.

4. SAME--Presumption as to Jurisdiction of Courts of Another State. The rule applied, as declared in Dodge v. Coffin, 15 Kan. 277, that "It will be presumed, in the absence of evidence to the contrary, in favor of courts of general jurisdiction of sister states, that they have the authority they assume to exercise, and that the modes of procedure pursued by them, though different from that established by the laws of this state, are authorized by the laws of the state in which they act." (Syl. P 2.)

5. SAME--Settlement of Claim--Dismissal of Action--Bar to Further Action. A judgment of dismissal, appearing to have been entered by consent of the plaintiff, upon a settlement of the claim sued upon, is a bar to a further action thereon.

6. SAME. The record of the dismissal by the plaintiff, on settlement, of an action brought in another state, by an administrator there appointed, for damages for the death in Kansas of the intestate, who was a resident of a third state, payment in accordance with such settlement having actually been made to the widow, is a bar to an action brought here by the widow.

Paul E. Walker, and Luther Burns, both of Topeka, for the appellant.

W. A. Barron, of Phillipsburg, I. M. Mahin, and F. W. Mahin, both of Smith Center, for the appellee.

OPINION

MASON, J.

J. A. Robinson, a resident of Colorado, in January, 1909, left Denver upon a freight train, accompanying a shipment of live stock and goods over the Rock Island railroad to Apache, Okla. At Phillipsburg, in this state, some switching was done, in the course of which the car containing his property was severely jolted. Shortly afterwards he was found dead in the car, bruises upon his head showing that he was killed by some violent means. In January, 1911, an action was brought against the company by his widow, charging his death to have been occasioned by the negligent handling of the car. She recovered a judgment and the defendant appeals.

Many questions are raised, but the view taken by the court of two phases of the matter makes it unnecessary to discuss any other in detail. The body was taken for burial to the home of the decedent's father, in Iowa. On March 12, 1909, the father, Jesse Robinson, petitioned an Iowa court to be appointed administrator, and was appointed and qualified. Six days later he brought an action as administrator in the Iowa court to recover damages for the death of his son. On April 12 the defendant filed a general denial. On April 24 the administrator applied to the court for leave to settle the claim against the railroad company for $ 750, and an order was made to that effect. On May 6, 1909, the company paid to the widow $ 750 ($ 50 of which was on account of the freight paid) and took a receipt signed by her and by a domiciliary administrator appointed in Colorado, reciting a compromise of the claim, and purporting to release all demands growing out of the matter. On November 22 an entry was made upon the records of the court in which the damage suit was pending, which the company asserts had the effect of a dismissal with prejudice, constituting a bar to any further action.

The plaintiff contends that at the time of the settlement she was suffering from an illness which, combined with the shock she had received, so far impaired her faculties that she was incapable of transacting business. The defendant complains of an instruction given upon that issue, to determine the force of which involves a consideration of the evidence on the subject. Several witnesses, two of them physicians, testified that she was in a highly nervous condition, and in their judgment mentally unsound and incapable of transacting business. She herself testified that between the summer of 1908 and September, 1909, she was sick most of the time; that she remembered some things partly but did not remember others; that she did not remember anything about the conversation on the day the release was signed, but there was an impression left on her mind of a railroad man being there that day, who had come to pay for the death of her husband, but she could not remember whether she settled with him or anything about what she did do. The day after the settlement she wrote a letter to her relatives in which she said:

"I will now write you a few lines in haste. I wrote you the other day I suppose you have got it before now.

"We have been sick every since I wrote and I write soon as I find out about the settlement with Guss [Gus Kyle, who had accompanied J. A. Robinson on the trip]. We had to pay him for he had a neighbor witness with him once when he first got back & Ed Lary [the Colorado administrator] promised to pay him if he staid around here & on that grounds we could n't keep from paying it, but it could n't be helped & I hope he feels better & that it is the last he will ever get out of me. Will [W. H. Anderson, who also had accompanied Robinson] came back here too. you know I suppose but he could n't do any thing or no one when Guss brought up this plea. Will had just as well staid in Iowa, but he was crazy to get back here I think & that was an excuse for him, but I have a job on the road for work for the mules at 4.00 a day and I told him he can drive them. The work may last most all summer if he gets along with the road boss, if not I will get some one else. He said he work for $ 20 month and I couldn't get a man here for less than 1.00 or 1.50 a day so I can save some from what they earn me. The R. R. man came here and settled with me. he said he wouldn't and couldn't settle with Boorman [the lawyer who brought the action in Iowa] no one but me, so he gave me the draft for 750. You send me what your expenses have been. Time I pay Guss, Will & Boorman I wont have much left. . . . You send me what you want for this trouble & expenses & I am willing to send you. I wrote Boorman for his charges. I fear he will want all I got. Write sometime soon."

On the same day she wrote to the Iowa lawyer who had brought the damage action there:

"The claim agent has come here to see me and urged or said that they would not settle with no one but the widow or the right persons and he had come here to find out the full particulars so he gave the draft to me for 750.00 and I have it cashed now you will send me your charges. And it is all settled. Write me what you think and ect. & ect. In Haste, I am, yours Truly."

In November, 1910, she wrote to the clerk of the Iowa court, asking copies of the papers in the proceedings there, saying:

"I am a Mrs. Hattie Robinson.--My husband was killed a year ago last Jan. at Phillispburg, Kansas. And Lawyer Boreman of Atlantic took the case, and seemed to have been bought off by the R. I. Railroad, any how he wrote me to settle with the company for the sum of 750,--which they offered me & I did so from his advice.

"Now these lawyers of Kansas are trying to reinstate the case for me. And I will send you their last full letter that you may better understand what we want and have you send all such papers you can get for us that we will need. I am not writing Mr. Boreman, thinking he might not be fair with me. And I have never employed any other lawyer in Iowa. My father in law is Jesse Robinson at Griswold. Now in regard to a judgment entered in the case in Iowa, I don't know anything about it but don't think there was a thing done only Boreman sworn as Attorney. I signed the paper, to that effect and that was all. & I don't know what Mr. Robinson did but the suit was brought in my name. But we must have all these papers or copies and we know of no other to write too. And you please see to it and send to Mrs. Hattie E. Robinson, Brush, Colo. Lock Box 5.

"As soon as convenient and your charges."

The letters written just after the settlement go far to establish a clear conception of the entire transaction and a capacity to do business intelligently. (Wisner v. Chandler, 95 Kan. 36, 147 P. 849.) The instruction to which objection is made reads as follows:

"You are instructed that in case you find that the death of said J. A. Robinson was caused by the negligence of defendant company and its employees and that defendant is primarily liable you may take into consideration the adequacy or inadequacy of the amount named in the settlement or release signed by the plaintiff May 6th, 1909, for the death of her husband, as...