Schendel v. Chi., M. & St. P. Ry. Co.

• Decision Date: 09 July 1926
• Docket Number: No. 25092.,25092.
• Citation: 210 N.W. 70,168 Minn. 152
• Court: Minnesota Supreme Court
• Parties: SCHENDEL v. CHICAGO, M. & ST. P. RY. CO.

168 Minn. 152
210 N.W. 70

SCHENDEL
v.
CHICAGO, M. & ST. P. RY. CO.

No. 25092.

Supreme Court of Minnesota.

July 9, 1926.

Appeal from District Court, Yellow Medicine County; Harold Baker, Judge.

Action by A. D. Schendel, as special administrator of the estate of Andrew J. Banker, deceased, against the Chicago, Milwaukee & St. Paul Railway Company. After verdict for plaintiff, defendant appeals from an order denying its motion in the alternative for judgment non obstante or a new trial. Order denying judgment non obstante affirmed, but, as to denial of new trial, order reversed, and a new trial granted.

Syllabus by the Court

The reply construed as admitting the rendition in a competent court of Iowa, having jurisdiction of the parties and cause of action, of a judgment against defendant for the wrongful death of plaintiff's decedent, the recovery being under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) for the sole benefit of decedent's wife and minor child.

The existence of such judgment being admitted, it raised a bar to the instant action, unless plaintiff herein adduced proof of the allegation of fraud and conspiracy set out in the reply.

The failure of plaintiff to adduce such proof through a misapprehension of the effect of the admissions should not result in judgment non obstante, but a new trial.

It does not so clearly appear that decedent was not engaged in interstate traffic when killed that judgment non obstante rather than a new trial should be granted. Although there is not identity of persons plaintiff in the two actions, there is identity of their representative character and of the cause of action so as to make a judgment rendered and paid in one a bar to the other.

Under the law of Iowa, judgments rendered in its courts are subject to attack for fraud in instituting the suit or giving the court jurisdiction, but not for fraud or perjury in determining the merits of the cause of action. Whether plaintiff can produce sufficient evidence of such fraud and conspiracy as will suffice to invalidate the judgment will be for the determination of the trial court.

It does not appear from this record that plaintiff may not by direct suit or motion in the Iowa court have the judgment rendered there annulled.

[210 N.W. 70]

F. W. Root, A. C. Erdall, and C. O. Newcomb, all of Minneapolis, Daly & Barnard, of Renville, and Bert O. Loe, of Granite Falls, for appellant.

Davis & Michel, of Minneapolis, and Paul D. Stratton, of Granite Falls, for respondent.

HOLT, J.

For the wrongful death of Andrew J. Baker, a switchman in defendant's service, plaintiff, as special administrator of the estate, recovered a verdict. Defendant appeals from the order denying its motion in the alternative for judgment non obstante or a new trial.

Plaintiff was appointed special administrator by the probate court of Hennepin county shortly after Mr. Baker's death. This action was instituted in Yellow Medicine county early in 1924, In substance, the complaint alleged the appointment and qualification of plaintiff, the death of Baker on November 11, 1922, in the defendant's yard at Cedar Rapids, Iowa, while engaged in his

[210 N.W. 71]

work as switchman for defendant moving interstate commerce, death being caused by the negligence of defendant and its servant, and that he left surviving his widow and one minor child. Admitting the employment and death of Baker, the answer set up contributory negligence and assumption of risk in addition to a general denial, and pleaded in bar a judgment obtained against defendant by the domiciliary administrator of Baker's estate, appointed by the proper court of Linn county, Iowa, the place of his residence, said judgment being for the same cause of action herein set forth and rendered on the merits in the district court of said Linn county on October 6, 1923, for $10,000, and paid. The reply admitted the appointment and qualification of the administrator, the permission given him by the court to bring the action in said district court of Linn county, a court having jurisdiction of actions under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), to recover damages sustained by the dependents of decedent on account of his wrongful death, and that, after the appointment of such general administrator, on his resigning, one George W. Toms was, on the widow's petition, appointed and substituted in the suit before judgment. There are also in the reply various allegations of fraud, collusion, and conspiracy between the administrator and defendant, as well as of fraud and duress towards the widow, the next to the last paragraph reading:

‘That plaintiff admits that the defendant by its representatives, attorneys, and agents filed an answer in said cause pending in said court [district court Linn county, Iowa], and that, in pursuance of the plan, scheme, and conspiracy to hinder and delay this plaintiff in the prosecution of an action in this state, and to defraud the dependents, and procure a collusive and unjust and inadequate settlement by the defendant, the appearance of formality was given the said proceedings by an assumed trial, without witnesses or contest, and the plaintiff alleges that the entire proceeding was a fraud and a farce, and undertaken only for the purpose of giving the appearance of legal and judicial sanction to the consummation of the plan and conspiracy heretofore referred to, but the plaintiff alleges that long prior to the time that the said proceedings were had the defendant widow warned and notified the said George W. Toms that his appointment had been secured as a result of fraud and duress, and that she did not desire to have him settle the case, but desired that the case proceed in Minnesota, and she alleges that, while there was apparent judgment entered, it was but the mere expression of an amount already agreed upon and fixed; and the plaintiff alleges that the said judgment was the result of fraudulent and corrupt conduct and conspiracy on the part of defendant, its representatives and agents, and the officers of the said court of Iowa.’

The opening statement to the jury of plaintiff's counsel is in the settled case. Therein he stated that defendant had paid to the domiciliary administrator $10,000, and admitted the formal entry of the judgment in the district court of Linn county, Iowa, but, of course, coupled admissions with the assertions that proof would be adduced to sustain the allegations of fraud, conspiracy, and duress set forth in the reply.

The appeal is in the main predicated upon two propositions: (1) The evidence fails to show that Baker was assisting in moving cars carrying interestate commerce when killed; and (2) the judgment rendered in Iowa for the same cause of action as the present stands admitted by the reply, and is a complete bar.

It would seem that defendant, insisting that the Iowa judgment is for a cause of action under the federal Employers' Liability Act, comes almost admitting that Baker was engaged in interstate commerce. But, that aside, we do not consider the evidence so lacking as to the interstate character of the work Baker was doing when he was injured that judgment should be ordered non obstante upon this record. Even though none of the three cars being moved at the time did come from, or were destined to, points outside Iowa, their being set in upon spurs appears to have been necessary in order to clear the tracks for interstate transportation, and, if anything be lacking as to that proof, no doubt defendant has records which show the true facts, and may be had at another trial. Moreover, the judgment and pleadings in the Iowa court, upon which defendant so much insists, of necessity are predicated upon the fact that Baker was engaged in interstate commerce, and covered by the federal Employers' Liability Act.

We think the reply admits the existence in the district court of Linn county, Iowa, of a formal judgment against this defendant, and in favor of the domiciliary administrator of Baker's estate, upon the same cause of action pleaded and proved in this case; that said district court had jurisdiction of actions to recover damages in behalf of decedent's dependents under the federal Employers' Liability Act, and, as stated, this judgment has been paid according to the express admission in the opening statement of plaintiff's counsel. So that, if plaintiff wished to escape the consequences of the judgment, he had to prove its invalidity. There was no attempt to so do. But plaintiff plants himself upon two legal propositions, neither of which we deem tenable. The first is that the admissions of the judgment and its payment cannot be accepted without accepting as true the connected allegations and statements of the fraud by which it was procured. We think this is not so. The fact of a formal existence of such a judgment as defendant pleaded in bar is admitted by the reply, and extrinsic matters in avoidance are pleaded. This admission dispensed with proof from defendant

[210 N.W. 72]

of the existence of the judgment it pleaded.

The second proposition is that there is no identity of parties plaintiff in the two actions, and hence a judgment in one does not bar or merge the cause of action asserted in the other. Brown v. Fletcher's Estate, 210 U. S. 82, 28 S. Ct. 702, 52 L. Ed. 966;Ingersoll v. Coram, 211 U. S. 335, 29 S. Ct. 92, 53 L. Ed. 208, are relied on. Language in the lastcited case, considered apart from the facts, may seem to support plaintiff. But it must not be lost sight of that those and other cases dealing with the tangible assets and debts of an estate of deceased persons, do not present the same problems as do cases involving a cause of action given by a statute to an administrator for the sole benefit of the dependents of a deceased. The court in the Ingersoll Case quotes this pertinent language from Stacy, Adm., v. Thrasher, 6 How. 44, 12 L. Ed. 337:

‘Where administrations are...