Strother v. Kansas City Southern Ry. Co.

• Decision Date: 15 February 1915
• Docket Number: No. 11463.,11463.
• Citation: 187 Mo. App. 303,173 S.W. 731
• Parties: STROTHER v. KANSAS CITY SOUTHERN RY. CO. et al.
• Court: Missouri Court of Appeals

173 S.W. 731

187 Mo. A. 303

STROTHER v. KANSAS CITY SOUTHERN RY. CO. et al.

No. 11463.

Kansas City Court of Appeals. Missouri.

February 15, 1915.

Appeal from Circuit Court, Jackson County; D. E. Bird, Judge.

Action by Sam B. Strother, administrator of John Manternach, deceased, against the Kansas City Southern Railway Company and another. From a judgment of dismissal, plaintiff appeals. Reversed.

Reed & Harvey, of Kansas City, for appellant. Lathrop, Morrow, Fox & Moore, of Kansas City, for respondents.

JOHNSON, J.

The petition alleges that plaintiff is the public administrator of Jackson county; that he was duly appointed and qualified as administrator of the estate of John Manternach; that at the time of his death Manternach was more than 21 years old and left surviving him no widow, minor child or children, either natural born or adopted, and no father or mother; and that his death was caused by negligence of defendants in the operation of a train. The action is founded on section 5425, Rev. Stat. 1909, and the prayer of the petition is for the recovery of $2,000, together with costs.

The defendant, Chicago & Alton Railroad Company, appeared and filed a motion "to require plaintiff to give security for costs, for the following reasons, to wit: First, because the estate is insolvent, and the officers of the court are in danger of losing their costs; second, because, under all the circumstances, the plaintiff should be required to secure the costs of this cause before being allowed to proceed further." This motion was sustained, and plaintiff was ruled to file a cost bond within 30 days, or, in lieu thereof, to deposit $35. Plaintiff filed a motion to set aside this order. On the hearing of that motion, it was admitted that, as public administrator, he "was regularly and legally appointed by the probate court as administrator in this case now at issue, and that, as such, he instituted and employed the firm of Reed & Harvey to prosecute this suit, against the defendants herein named, and as such administrator is conducting this suit"; and from the evidence introduced it appeared that plaintiff had been public administrator of Jackson county for five years, had been appointed administrator of a large number of estates, where the only asset of the estate was an alleged cause of action for damages, and that it was his practice to allow himself to be appointed in such cases whenever a reputable lawyer, employed by the parties in interest, represented that a cause of action had inured which, under the statute, called for the appointment of an administrator to prosecute it.

In answer to a question relating to the assets of the estate of Manternach he had reduced to his possession, plaintiff testified that he had such assets; that their value was "$300 or $400"; and that he had paid all demands allowed against the estate and the filing fee for the present suit. Further he stated that the time for presenting demands would not expire for five months, and that he had no knowledge of any which had not yet been presented.

The court overruled the motion to set aside the order ruling plaintiff to give security for costs, and, on his announcement that he would not comply with the order, dismissed the suit. A motion for a new trial was overruled, and plaintiff appealed.

No question of the sufficiency of the petition to state a cause of action under section 5425, Rev. Stat. 1909, is raised, and, for the purposes of the questions presented for our decision, we shall assume that the petition pleads a good cause, and that the administrator of the estate of the deceased is the proper party to prosecute it as plaintiff. The provision of the statute under which his authority is derived is that:

"If there be no husband, wife, minor child or minor children natural born or adopted as hereinafter indicated, or if the deceased be an unmarried minor and there be no father or mother, then in such case suit may be instituted and recovery had by the administrator or executor of the deceased and the amount recovered shall be distributed according to the laws of descent."

The first question for our decision is this: Is an administrator who, in his representative capacity, institutes and prosecutes a suit to enforce a cause of action arising under section 5425, personally liable for the costs of such suit, and therefore subject to the provisions of the statute relating to security for costs (section 2259, Rev. Stat. 1909)?

In Wooldridge v. Draper, 15 Mo. 470, it was held that the general rule of law as to the liability of executors and administrators for costs is that, where the cause of action accrued to the testator or intestate in his lifetime, the administrator or executor suing and failing to recover is not liable for costs de bonis propriis, and the judgment for costs will be de bonis testatoris; but where the cause of action accrues to the executor or administrator, and he sues and fails to recover, he shall pay the costs himself.

In Ranney v. Thomas, 45 Mo. 111, the point of error in rendering judgment for costs de bonis propriis against the plaintiff administrator was held well taken; the court saying:

"The plaintiff was suing in his representative character, and the adverse judgment against him should have been entered as though he had been sued in that capacity. * * * Ordinarily, where an administrator sues or is sued in his official character, the judgment should be entered against him in the same character, to be levied out of the assets of the testator or intestate."

To the same effect is the case of State, to Use, v. Maulsby, 53 Mo. 500.

On the hypothesis that the cause of action in the instant case accrued in the lifetime of the deceased, the precise question under consideration was determined adversely to the position of defendant in Ross v. Alleman, 60 Mo. 269, where a motion was filed, as here, to compel the plaintiff administrator to give security for costs "on the ground that he was unable to pay the costs, and that the estate which he represented, and for which he sued, was insolvent." The circuit court sustained the motion. Of this the Supreme Court said:

"The judgment is erroneous. The cause of action accrued to the plaintiff's intestate in his lifetime, and in such a case the plaintiff, as administrator was not personally liable for costs. The judgment should have been against him in his representative capacity, to be satisfied out of the assets of the estate. Wooldridge v. Draper, 15 Mo. 470; Ranney v. Thomas, 45 Mo. 111; State, to Use, etc., v. Maulsby, 53 Mo. 500. As a general rule, administrators prosecuting actions in their representative characters are not required to give bonds for costs or appeals, for the reason that they have already given bonds, with approved security, to answer for all damages or liabilities touching their acts as such. If their bonds are insufficient, the proper mode is to move, in the probate court, to have them made good."

In Rittenhouse v. Ammerman, 64 Mo. 197, 27 Am. Dec. 215, the rule announced in Wooldridge v. Draper, supra, was repeated; i. e., that, where the cause of action accrued in the lifetime of the intestate, a judgment for costs against the administrator should be against him in his representative capacity, and enforced only against the assets of the estate, but where the cause accrues to the administrator, and he sues and fails to recover, judgment for costs should be rendered against him in his personal capacity. The opinion added that, in cases where it was proper to render such personal judgment, the administrator, on a proper showing to the probate court, might be allowed his costs out of the assets of the estate.

Such being the law in this state, there is no need to refer to decisions in other jurisdictions which appear to take a different view. We are bound to follow the decisions of the Supreme Court and, doing so, find that the question of whether or not plaintiff may be ruled to give security for costs on the theory of his personal liability for them depends on the proper solution of the further question of whether the cause of action pleaded in the petition accrued before or after the death of the intestate. If before, the administrator who, in good faith, prosecuted the action in his representative capacity should not be held liable for the costs, and therefore should not be required to give security as for a personal liability. If after, he should be held personally liable, and the question of whether or not he should be ruled to give security for the costs properly may be raised.

Section 5425, R. S. 1909, provides that such penalty as is demanded in this action "may be sued for and recovered" by the husband and wife of the deceased, or if there be no husband or wife, or he or she fail to sue within six months after such death, then by the minor child or children of the deceased, or if there be no husband, wife, or minor child, or minor children, etc., then in such case recovery shall be had...