Wechsler v. Davis

• Decision Date: 20 February 1922
• Docket Number: No. 4267.,4267.
• Citation: 239 S.W. 554,209 Mo. App. 570
• Parties: WECHSLER v. DAVIS, Director General of Railroads.
• Court: Missouri Court of Appeals

239 S.W. 554

209 Mo. App. 570

WECHSLER v. DAVIS, Director General of Railroads.

No. 4267.

Kansas City Court of Appeals. Missouri.

February 20, 1922.

Rehearing Denied April 3, 1922.

Appeal from Circuit Court, Jackson County; Samuel A. Dew, Judge.

Action by George Wechsler against James C. Davis, as Director General of Railroads and Agent designated by the President under the Transportation Act of 1920. Judgment for plaintiff, and defendant appeals. Affirmed.

Warner, Dean, Langworthy, Thomson & Williams, of Kansas City, for appellant.

Mont T. Prewitt and Hogsett & Boyle, all of Kansas City, for respondent.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $5,000, and defendant has appealed.

Plaintiff was injured on January 3, 1920, while a passenger on a passenger train operated by Walker D. Hines, Director General of Railroads. Hines was defendant's predecessor operating the Chicago Great Western Railroad. The injury was caused by the train leaving the track at Wyeth, Andrew county, Mo. Plaintiff at the time of the accrual of his cause of action and at the time of the trial was a citizen and resident of the state of Illinois.

It is insisted that under General Order 18A of the Director General of Railroads (which it seems to be agreed, since the decision of the Supreme Court in the case of Alabama & Vicksburg Ry. Co. v. Journey, 257 U. S. ___, 42 Sup. Ct. 6, 66 L. Ed. ___, not yet officially reported, is a valid order) the court had no jurisdiction of the cause, and defendant's demurrer to the evidence should have been sustained. This order provides that suits of this kind must be brought in the county or district where plaintiff resided at the time of the accrual of his cause of action or the county or district where the cause of action' arose. The order is pleaded in the answer where it is alleged that plaintiff was a resident of the state of Illinois, and that his cause of action did not accrue in Jackson county, Mo., where the suit was brought.

The circuit court of Jackson county, Mo., had jurisdiction of the subject-matter of this suit, but under General Order 18A had no jurisdiction over the person of defendant's predecessor, Hines, unless he chose to voluntarily submit to the jurisdiction of the court. If lack of venue did not appear on the face of the petition he had the right to raise the question of venue in his answer and include it with a defense on the merits. Harrison v. Murphy, 106 Mo. App. 465, 470, 80 S. W. 724. This defendant's predecessor did. However, after the pleadings were made up in this case and before a trial of the same, defendant's predecessor, Hines, resigned as Director General of Railroads, and John Barton Payne, was appointed in his stead upon the passage of the Transportation Act (Act Feb. 28, 1920, pt. 1, 41 U. S. Statutes at Large, p. 456). This act provided that the President should relinquish possession and control of all railroads under federal control, and that he should appoint a federal Agent against whom suits might be brought arising under such control. The President appointed John Barton Payne federal Agent under this act, and he was acting as such on February 25, 1921. The record recites:

"Thereafter, and on February 25, 1921, and during the January term, 1921, of said court, plaintiff again amended his petition by interlineation, and John Barton Payne, Director General of Railroads and Agent designated by the President under Transportation Act 1920, was substituted by agreement as successor of said Walker D. Hines, and said substituted defendant entered his appearance in said cause and adopted the answer theretofore filed by said Walker D. Hines, defendant, and the court made an entry of record that such proceedings were had." (Italics ours.)

This entry of appearance was made before the trial of the cause. There is nothing upon the face of this entry to indicate that the appearance of John Barton Payne was not a general one. It is in no sense special or conditional, although the entry states that Payne adopted the answer theretofore filed by Hines, and the answer contains a plea to the jurisdiction setting up the provisions of General Order 18A. However, it will be noted that the entry of appearance was not conditioned upon defendant's being allowed to adopt Hines' answer, and Payne could not enter his general appearance and thereafter attempt to withdraw it by adopting the answer theretofore filed by his predecessor, which contained a plea to the jurisdiction. Under the circumstances we must construe the entry to mean that defendant entered his general appearance and thereafter adopted that part of the answer containing a plea to the merits.

We think there is no question but that John Barton Payne entered his general appearance in this case. It is conceded that he could have refused to enter his appearance and stood upon his rights and before he could have been brought into court a regular summons would have had to have been issued and served upon him in the regular way. If brought into court in this manner, he could have filed an answer containing a plea to the jurisdiction and joined such a plea with one to the merits or he could have adopted the answer theretofore filed by his predecessor, Hines, but instead of doing this he voluntarily entered his appearance. There is nothing upon the record to show that his appearance was a special one.

The rule is that, in order for one's appearance to be special", the order, plea, or motion must expressly state that the appearance is only for the purpose of excepting to the jurisdiction, or, at least, the order, plea, or motion on its face must appear to be a special appearance for that purpose. 2 R. C. L. 322; Nicholes v. People, 165 Ill. 502, 503, 504, 46 N. E. 237; Reed v. Chilson, 142 N. Y. 152, 155, 36 N. E. 884.

It is stated in 4 C. J. p. 1318, par. 5:

"A defendant appearing specially to object to the jurisdiction of the court must, as a general rule, keep out of court for all other purposes. in other words, he must limit his appearance to that particular question or he will be held to have appeared generally and to have waived the objection."

See, also, Thomasson v. Ins. Co., 114 Mo. App. 109, 115, 89 S. W. 564, 1135; Harrison v. Murphy, supra.

The reason why the federal Agent should desire to enter his general appearance to the cause is quite apparent, for under the provision of section 206 (a) of the Transportation Act, if the plea to the jurisdiction filed by his predecessor was good, and as a result thereof the suit would have been dismissed for want of venue in the circuit court, plaintiff could have immediately refiled the same suit in the same court, and, no doubt, it was apparent to the federal Agent that this would have been a useless procedure and contrary to the spirit of section 202 of the act. This section provides that the President should wind up all business growing out of federal control as soon as practicable; so no doubt the federal Agent, instead of requiring plaintiff to bring a new suit, elected to proceed with the one already filed as being the proper course under the circumstances. The highly technical character of the contention now being made by the defendant appears when it is realized that, should we sustain defendant's contention that there was no venue in the circuit court of Jackson county, Mo., plaintiff could immediately refile the same suit in the same court, and thereafter the cause could be tried in the same manner that it has already been.

After the case was tried and judgment entered and after defendant's motion for a new trial had been overruled, John Barton Payne having resigned, James C. Davis, the present defendant, was appointed federal Agent in his stead, and the record shows as follows:

"Now on this 4th day of May, 1921, come * * * said James C. Davis, Director General of Railroads and Agent, as aforesaid, by Ms attorneys, and enters his appearance herein, and all of said parties do now in open court agree that he shall be substituted herein as defendant." (Italics ours.)

Thereafter said Davis appealed the case here. We think there can be no question but that this was an entry of general appearance of the present defendant in this suit. Brown v. Ins. Co. (Mo. App.) 228 S. W. 883.

Plaintiff insists that the petition shows on its face that plaintiff resided in the state of Illinois, and that the derailment happened in Andrew county, Mo., and that, if defendant is correct in his contention as to venue or the lack of it in the circuit court of Jackson county, Mo., it appears on the face of the petition, and, as defendant did not demur on the ground of a lack of venue, it is waived. The petition does allege that plaintiff resided in the state of Illinois at the time of the bringing of the suit and at the time of the derailment, but as to where the accident occurred it alleges only that it happened "at a point near the town of Wyeth, in the state of Missouri." The petition does not state that the occurrence was within the corporate limits of Wyeth or in fact that Wyeth is an incorporated place. Unless the court passing upon such a demurrer would take judicial notice tint Wyeth is located in Andrew county, Mo., then, of course, the petition was not subject to a demurrer on the grounds suggested. There is great conflict of opinion as to whether the courts will take judicial notice of small towns not incorporated by public law. See 15 R. C. L. pp. 1083-1085. Nor does the petition allege that the derailment occurred within the corporate limits of the town of Wyeth. In ruling the present point against the defendant we prefer to place our decision on the ground that the venue was waived by defendant entering his general appearance.

A point is made in defendant's brief under his assignments of error, but not elaborated, that the trial court in refusing to give his peremptory instruction...