Stuart v. Dickinson

• Decision Date: 30 November 1921
• Citation: 235 S.W. 446,290 Mo. 516
• Parties: WILLIAM A. STUART, by IDA STUART, Guardian, v. JACOB M. DICKINSON, Receiver, and CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellants
• Court: Missouri Supreme Court

235 S.W. 446

290 Mo. 516

WILLIAM A. STUART, by IDA STUART, Guardian, v. JACOB M. DICKINSON, Receiver, and CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellants

Supreme Court of Missouri

November 30, 1921

Appeal from Jackson Circuit Court. -- Hon. Clarence A. Burney Judge.

Reversed and remanded.

Luther Burns and Guthrie, Conrad & Durham for appellants.

(1) The court erred in not sustaining the instructions of defendants in the nature of demurrers to the evidence. (a) The cause of action here involved has been adjudicated by the District Court of the United States for the Northern District of Illinois, and its judgment is final. The decree of the Illinois court is res judicata and is not subject to collateral attack. Distinction between direct and collateral attack, and when collateral attack can be made. Lieber v Lieber, 239 Mo. 1; Wilson v. Wilson, 255 Mo 536; Reed Bros. v. Nicholson, 158 Mo. 631; Martin v. Baron, 39 Mo. 301; Burk v. City of Kansas, 118 Mo. 327; McDermott v. Gray, 198 Mo. 382; Desloy v. Tucker, 196 Mo. 601; State ex rel. v. Ross, 118 Mo. 45; Johnson v. Realty Co., 167 Mo. 339. Stuart's insanity cannot be raised collaterally. Crow v. Meyersieck, 88 Mo. 411; Berger v. Boardman, 254 Mo. 238, 258; Koenig v. Railway Co., 194 Mo. 564. The authority of plaintiff's attorneys cannot be attacked collaterally. Scott v. Royston, 223 Mo. 668, 692; Cochran v. Thomas, 131 Mo. 258. Plaintiff entered appearance in the Illinois court. The claim was filed for the guardian, and the attorneys filing it were authorized to do so. Scott v. Royston, 223 Mo. 568; Arn v. Arn, 264 Mo. 19; Koenig v. Railway, 194 Mo. 564; Berger v. Boardman, 254 Mo. 261. (b) Even though no appearance was made by the plaintiff or for him in the Illinois court, he was bound by the decree of that court. Guaranty Trust Co. v. Mo. Pac. Ry., 238 F. 812; St. Louis & San Francisco Ry. v. McElvain, 253 F. 123; Mendenhall v. Chicago Great Western Ry., 135 N.W. 620; Goodwin v. A. T. & S. F. Ry., 118 F. 403. (c) To permit plaintiff to recover would be in violation of the Constitution of the United States. Would deny full faith and credit to the judgment and decree of the Illinois court in violation of Section 1, Article 4, of the Constitution of the United States. Authorities above. Would deny defendants the privileges and immunities of citizens of the several states in violation of Section 2, Article 4, of the Constitution of the United States. Would deprive defendants of their property without due process of law, and deny them the equal protection of the law, in violation of Section 1, Article 14, of the Constitution of the United States. (d) The negligence, if any, of defendants, was not the proximate cause of the accident. Warner v. Ry. Co., 178 Mo. 133; Pippin v. Con. Co., 187 Mo.App. 360, 369; Yocum v. Lusk, 223 S.W. 53. (e) The personal judgment against the Chicago, Rock Island & Pacific Railway Company is erroneous. State v. St. Louis & San Francisco Railroad Co., 125 Mo. 596; Hill v. Ry. Co., 82 Mo.App. 188; Gate City Nat. Bank v. Chick, 170 Mo.App. 343. (2) The court committed error in giving the plaintiff's Instructions 1, 2, 3 and 4. (a) Instruction 1 does not define the practices, and there was no evidence on which the jury could find that the practices abrogated the rules. Finnegan v. Railway Co., 244 Mo. 608; Yocum v. Lusk, 223 S.W. 53. (b) The second paragraph of the instruction is independent of the first and is not predicated on the jury's finding the facts set out in the first paragraph of the instruction to be true. (c) The third paragraph of the instruction is independent of the first and second paragraphs, and is not predicated on the jury's finding the facts set out in the first and second paragraphs to be true. (d) The third paragraph of the instruction is erroneous because it permits a recovery against the railway company. (e) Instruction 2 submits the wrong measure of damages. (f) Instruction 3 and 4 fail to require a finding by the jury that the guardian disaffirmed the act of counsel in filing claim.

T. J. Madden and H. G. Pope for respondent.

(1) Counsel say that we attempted to show an abrogation of rules. What we attempted to show may be more properly termed an application of the rules under this system instead of the abrogation of some of them. We had a right to show the method of operation under the manual block system. That was the highest and best interpretation and construction the rules could have. These rules apparently conflict with each other and, like all human arrangements, have to be worked out and harmonized in actual operation. It was, and still is, our theory that these rules worked out harmoniously in operation as plaintiff's witnesses described. It must be remembered that these rules cover a multitude of conditions and circumstances, under which some of them apply and others do not. If these rules, and the rules of the time card, may be construed to be in harmony with each other, as was said in the case of Finnigan v. Railroad, 261 Mo. 502, then it is our duty to so construe them. If, on the other hand, there are some rules in conflict with the general plan of the system, then the conflicting ones may be disregarded. (2) The negligence of both operators that controlled the block is conceded and the case is argued here in counsel's brief on that assumption. One operator sent him in there without securing the block for him, and the other operator or signalman failed to protect him, when in the exercise of ordinary care he should have known he was there. The crew of Train 1-98 was negligent in running into the block in disregard of the signal given them and in violation of the rules. Under plaintiff's theory, which was abundantly supported by evidence and properly submitted to the jury, plaintiff could not have been guilty of negligence in being in the block at the time. (3) When the plaintiff failed to appear to present his claim and the evidence to support it there was only one thing that the master in chancery could do and that was to dismiss the claim for want of prosecution, and his attempt to do otherwise was void. No adversary, or court representing him, has the power to try the other party's case, and the only thing a court can do when a party fails to appear and prosecute his claim is to dismiss it. Wright v. Salisbury, 46 Mo. 28; Kelerher v. Henderson, 203 Mo. 489, 516; Garrison v. Texas & P. Ry. Co., 30 S.W. 725. (4) Under the contract between Mrs. Stuart and E. C. Whitsett the latter was without authority to file this claim in the receivership proceeding, and the master in chancery acquired no jurisdiction to hear and determine the claim on its merits. Whitsett's authority was strictly limited to an adjustment of the claim and the means whereby he was to accomplish that end were definitely stated and confined by the terms of the instrument. He was the only lawyer employed by her and whatever was done by Mr. Pope or the firm of Bird & Pope was done through Mr. Whitsett, and there was no other contract until August, 1917, when other attorneys were employed. What he did or attempted to do beyond the limits of that instrument is not binding on the plaintiff unless ratified by the guardian. Mrs. Stuart as well as Mr. Whitsett testified that she repudiated his action in filing the claim as soon as it came to her attention. Counsel for appellants, as well as the master in chancery, were immediately notified by correspondence and direct notice in writing that the claim was filed without authority, and this notice was given prior to the hearing before the master, and hence it cannot be claimed that the master had any right to rely on presumptions or apparent authority to file the claim. Graves v. Graves, 255 Mo. 468; Martin v. Augedahl, 38 S.Ct. 452; 13 Am. & Eng. Ency. Law (2 Ed.), 992; Wisconsin v. Ins. Co., 127 U.S. 265; Thompson v. Whitman, 18 Wall. 457; Cole v. Cunningham, 133 U.S. 107; Hall v. Lanning, 91 U.S. 160; Reynolds v. Stockton, 140 U.S. 254; Grover v. Radcliffe, 137 U.S. 287; Christmas v. Russell, 5 Wall. 290; Hazeltine v. Ins. Co., 55 F. 743; Hubbard v. Inv. Co., 70 F. 808; Zepp v. Hager, 70 Ill. 223; McMillan v. Lovejoy, 115 Ill. 498; Latimer v. Rld., 43 Mo. 105; Barney v. White, 46 Mo. 137; Hays v. Merkle, 70 Mo.App. 509; Hamill v. Talbott, 72 Mo.App. 22; Corby v. Wright, 4 Mo.App. 443. See also Burbank v. Ernst, 232 U.S. 162; Milburn v. Chinn, 202 F. 175; Hester v. Frink, 189 Mo.App. 40; L. Assn. v. McDonough, 204 U.S. 8; Davis v. Davis, 174 F. 786. (5) In Missouri the law is well settled that the record of a judgment rendered in another state may be impeached in a collateral proceeding by evidence showing that the party had no notice of the action and never authorized anyone to appear for him, even though the record affirmatively shows the contrary. Napton v. Leaton, 71 Mo. 358; Hays v. Merkle, 67 Mo.App. 55; Weller Mfg. Co. v. Eaton, 81 Mo.App. 663; Munhall v. Mitchell, 178 Mo.App. 494, 499; Citizens State Bank v. Shanklin, 174 Mo.App. 639; Haddock v. Haddock, 201 U.S. 562, 573; Educational Soc. v. LaRue, 164 Mo.App. 100; Broussard v. Mason, 186 Mo.App. 408; Trimble Bros. v. Stamper, 179 Mo.App. 300; Cooper v. Newell, 173 U.S. 555; Bigelow v. Smelting Co., 225 U.S. 111; Dupasseur v. Rochereau, 21 Wall. 130. (6) Appellants claim that "even though no appearance was made by the plaintiff or for him he would be bound by the Illinois decree." We assume that this means that the Chicago court had jurisdiction over the plaintiff, whether he appeared or not. Counsel seem to think that because a court has once acquired jurisdiction over a railroad company that it draws to itself jurisdiction over all parties who may have been affected or injured by it whether they wish to subject themselves to its...