Toothaker v. Hines

• Citation: 210 P. 1110,112 Kan. 304
• Decision Date: 09 December 1922
• Docket Number: 23,923
• Parties: W. P. TOOTHAKER, Appellant, v. WALKER D. HINES, as Director-general of Railroads (JAMES C. DAVIS, as agent, etc., substituted, Appellee)
• Court: United States State Supreme Court of Kansas

210 P. 1110

112 Kan. 304

W. P. TOOTHAKER, Appellant, v. WALKER D. HINES, as Director-general of Railroads

(JAMES C. DAVIS, as agent, etc., substituted, Appellee)

No. 23,923

Supreme Court of Kansas

December 9, 1922

Decided July, 1922.

Appeal from Sheridan district court; CHARLES I. SPARKS, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. LIVE STOCK--Killed by Railroad While Under Government Control--Informal Substitution of Parties Defendant--Jurisdiction--Appearance. In an action for damages for stock killing against the agent appointed by the president under section 206 of the federal transportation act of 1920, judgment on the pleadings having been rendered in favor of the defendant; and one month later the person filling the position of such agent having resigned and a new appointment having been made; and within four months thereafter service of a notice of appeal directed to the attorneys of the former incumbent, described as such agent having been acknowledged; and briefs on the merits having been subsequently filed on both sides, no objection being made on jurisdictional grounds; it is held that an informal but actual substitution of the new agent within the provisions of the federal statute (ch. 121, 30 Stat. 822) resulted from the acknowledgment of service of the notice of appeal, confirmed by the filing of a brief on the merits.

2. LIVE STOCK--Railroad Fence Covered with Snow--Snow Must Be Cleared Within Reasonable Time. Under the statute imposing liability upon railroad companies for any animal killed by their engines, but providing that it shall not apply where the road is enclosed with a lawful fence, a company is liable for the killing of cattle which get upon the track by reason of a fence becoming an insufficient barrier through being covered by snow, after that condition has been permitted for so long a period as to show negligence.

3. SAME--Fence Covered with Snow--Duty of Railroad Company. Where the fence maintained by a railroad company is situated wholly upon its own land or right of way its obligation extends to the exercise of reasonable diligence to remove the snow on both sides of the fence sufficiently to prevent its being rendered ineffective as a barrier, although the land or right of way belonging to the company outside of the fence is occupied by the adjoining owner as a pasture without lease or agreement with the company.

W. L. Sayers, and J. S. Parker, both of Hill City, for the appellant.

R. W. Blair, T. M. Lillard, and O. B. Eidson, all of Topeka, for the appellee.

OPINION

MASON, J.:

On February 20, 1920, W. P. Toothaker sued Walker D. Hines, director-general of railroads, for the value of a steer killed by an engine on the Union Pacific railroad. At the trial, on February 28, 1921, John Barton Payne, the agent appointed by the president under section 206 of the federal transportation act of 1920 (41 U.S. Stat. 461), was substituted as defendant. A jury was impaneled, after which an objection to the introduction of evidence was sustained on the ground that the petition did not state a cause of action. Judgment was thereupon rendered in favor of the defendant, and the plaintiff appealed. The case is by this court entitled as above in accordance with the practice of naming the parties as they appeared in the original petition and adding any others who are either appellants or appellees.

Briefs on each side were filed in this court, and when the case was called for oral argument, on October 31, 1922, an objection to entertaining the appeal was raised on the ground that James C. Davis had succeeded John Barton Payne on March 28, 1921, and as no substitution had been made within a year thereafter jurisdiction had been lost. A brief in support of the objection has subsequently been filed.

The federal statute provides:

"That no suit, action, or other proceeding lawfully commenced by or against the head of any Department or Bureau or other officer of the United States in his official capacity, or in relation to the discharge of his official duties, shall abate by reason of his death, or the expiration of his term of office, or his retirement, or resignation, or removal from office, but, in such event, the court, on motion or supplemental petition filed, at any time within twelve months thereafter, showing a necessity for the survival thereof to obtain a settlement of the questions involved, may allow the same to be maintained by or against his successor in office, and the Court may make such order as shall be equitable for the payment of costs." (Act of February 8, 1899, ch. 121, 30 U.S. Stat. 822.)

Under this statute it is held that if the successor is not substituted within the time named no substitution can be made, and that without it no review of the judgment can be had. (LeCrone v. McAdoo, 253 U.S. 217--not a railroad case, however.)

Prior to this enactment it had been held that an action against a public officer as such abated by his death or retirement, except in the case of a continuing body, or perhaps of an officer acting only in a representative capacity. ( Thompson v. United States, 103 U.S. 480, 26 L.Ed. 521; Murphy v. Utter, 186 U.S. 95, 46 L.Ed. 1070, 22 S.Ct. 776.) A reason given for this holding was that in the cases in which it was made the relation of the officer to the matter was personal. (United States v. Boutwell, 84 U.S. 604, 21 L.Ed. 721; see, also, Richardson v. McChesney, 218 U.S. 487, 54 L.Ed. 1121, 31 S.Ct. 43; Pullman Co. v. Croom, 231 U.S. 571, 58 L.Ed. 375, 34 S.Ct. 182.) The statute was passed in response to a suggestion of the court as to its necessity in view of the holding referred to. (U. S. ex rel. Bernardin, v. Butterworth, 169 U.S. 600, 605, 42 L.Ed. 873, 18 S.Ct. 441.) Considered in the light of the history and obvious purpose of the statute, it might be argued that it does not apply to the present case, where the defendant acts in a purely representative capacity. That question, however, seems to be foreclosed by a recent decision in which the statute appears to have been applied in similar circumstances, although without an opinion beyond a reference to the statute and to LeCrone v. McAdoo, supra. (John Barton, Agt., etc., v. Industrial Board of Illinois, 42 S. C. R. 462.)

In two recent cases in this court, in situations somewhat similar to those here presented, formal substitution was held unnecessary, no reference however being made in the opinions to the federal statute above quoted or the decisions under it. (Helm v. Railway Co., 109 Kan 57, 198 P. 190; Jameson v. Railway Co., 111 Kan. 670, 208 P. 560.) In the one first cited the judgment appealed from was rendered while government control was in force, and the substitution of the agent for...