Whitley v. Spokane & Inland Railway Co.

• Citation: 132 P. 121,23 Idaho 642
• Parties: MARY ELIZABETH WHITLEY, Respondent, v. SPOKANE & INLAND RAILWAY CO., Appellant
• Decision Date: 14 April 1913
• Court: Idaho Supreme Court

132 P. 121

23 Idaho 642

MARY ELIZABETH WHITLEY, Respondent, v. SPOKANE & INLAND RAILWAY CO., Appellant

Supreme Court of Idaho

April 14, 1913

DEATH BY WRONGFUL ACT-ACTION BY PERSONAL REPRESENTATIVE-PARTIES BENEFICIARIES UNDER JUDGMENT-ACTION IN FOREIGN JURISDICTION-EXCLUSION OF HEIR IN FOREIGN JURISDICTION-FOREIGN JUDGMENT-AUTHORITY OF FOREIGN ADMINISTRATRIX-FULL FAITH AND CREDIT DUE FOREIGN JUDGMENTS-RATIFICATION-ELECTION OF REMEDIES.

1. Where an administratrix, appointed under the laws of one foreign jurisdiction, sued in another foreign jurisdiction for recovery on a death claim arising under the death statute of Idaho (sec. 4100, Rev. Codes), and the courts of the state of her appointment hold that she was not a representative of and had no authority to represent the mother of the deceased who was not an heir of the deceased under the laws of the state where the administratrix was appointed, held, that in an action by the mother in the courts of Idaho, where the mother is one of the heirs of the decedent, failure to make the administratrix, either officially or personally, a party plaintiff or defendant is not prejudicial error, and is not fatal to the jurisdiction or to a judgment recovered in such action.

2. In order to bind or estop a party under the doctrine of ratification, he must have accepted some benefit under or shared in the fruits of a judgment or other action or proceeding which he is supposed to have ratified, and in some way have by his action placed the party urging and pleading the ratification in a worse or more unfavorable position than he was or would have been in had no such action been taken by the party against whom estoppel by ratification is charged.

3. In order to apply the doctrine of election of remedies to a party, he must actually have had at command two inconsistent remedies. He must not only have thought he had such remedies but must have in fact had them available. To pursue a supposed remedy which the court holds to be no remedy at all and not to be available to the party is no bar to subsequently pursuing an available remedy.

4. The constitution of the United States, sec. 1, art. 4, and sec 905 of the Revised Statutes of the United States, command the courts of every state of the Union to give to the judgments and judicial proceedings of the courts of every other state the same faith and credit which such judgments and proceedings are accorded by the courts of the states respectively in which such judgments were entered and such proceedings were had.

5. Sec 4100 of the Rev. Codes of this state authorizes the prosecution of an action by "the heirs or personal representatives" of a deceased person against a person wrongfully causing the death of such person, and any judgment obtained in such an action inures to the benefit of the "heirs" of the decedent, and in no case becomes a part of the assets of the estate of the deceased. Where there are no heirs, the action cannot be maintained.

6. Where a death has been wrongfully caused in this state, the prosecution of an action in a foreign state under the authority of sec. 4100, Rev. Codes, of this state, and alleging the accrual of the cause of action in the state of Idaho under this statute and the prosecution of such action for the benefit and in behalf of a part only of those who are "heirs" under the laws of the state of Idaho, is not a bar to the subsequent prosecution of an action in this state by such heir as was not represented in the action in the foreign jurisdiction, and to deny the right of such a judgment entered in a foreign jurisdiction to bar and preclude an omitted and nonrepresented heir to thereafter prosecute an action in this state does not deny such full faith and credit to such foreign judgment as is commanded by the federal constitution and the act of Congress thereunder.

7. A recovery in a foreign state under the death statute of Idaho authorizing such an action for a wrongful death in this state, does not bar a recovery in this state by anyone who is an heir under the laws of Idaho, and who was barred from participating as an heir under the laws of the foreign state and who was not represented in the action wherein the recovery was had.

8. Neither of the judgments pleaded in this case constitutes a bar to the right of recovery in this action. The Tennessee judgment would not be a bar to a right of recovery in that state, on the ground a recovery had once been had, but simply for the reason that the court there holds that no recovery at all could be had in that state by the respondent herein, Mary Elizabeth Whitley, or for her use or benefit. This is because she was not, under the laws of Tennessee, an heir of the decedent. The Washington judgment would be no bar in that state to a further prosecution by Mary Elizabeth Whitley, for the reason that the court of Tennessee, wherein the administratrix obtained her appointment and official existence, holds that the administratrix alone was the sole heir of the decedent, and that she had no authority to and did not represent Mary Elizabeth Whitley in the prosecution of the death claim in the Washington court.

9. The word "heirs," as used in sec. 4100 of the Rev. Codes of this state, means such heirs as are entitled to inherit from a deceased person under the statute of this state.

APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. R. N. Dunn, Judge.

Action for damages for wrongful death. Judgment for plaintiff. Defendant appealed. Affirmed.

Judgment affirmed, with costs in favor of respondent.

W. G. Graves and Whitla & Nelson, for Appellant.

A death claim statute such as that of Idaho gives but one cause of action and authorizes but one recovery. (Hartigan v. So. P. Co., 86 Cal. 142, 42 P. 851; Riggs v. N. P. N. Co., 60 Wash. 292, 111 P. 162; Fritz v. Western Union Tel. Co., 25 Utah 263, 71 P. 209; Louisville etc. Co. v. Sanders, 86 Ky. 259, 5 S.W. 563; Peers v. Nevada Power etc. Water Co., 119 F. 400; Beard v. Skeldon, 113 Ill. 584; Consolidated Coal Co. v. Dombrowski, 106 Ill.App. 641; Almquist v. Wilcox, 115 Minn. 37, 131 N.W. 796; St. Louis etc. Co. v. Needham, 52 F. 371, 3 C. C. A. 129; McBride v. Berman, 79 Ark. 62, 94 S.W. 913; Whelan v. Rio Grande etc. Ry. Co., 111 F. 326; Roberts v. Central of Georgia Ry. Co., 124 F. 471; Willis etc. Co. v. Grizzell, 198 Ill. 313, 65 N.E. 74; Munro v. Pacific etc. Co., 84 Cal. 515, 18 Am. St. 248, 24 P. 303; Putman v. So. P. Co., 21 Ore. 230, 27 P. 1033; Daubert v. Western Meat Co., 139 Cal. 480, 96 Am. St. 154, 69 P. 297, 73 P. 244.)

Under the law as established in Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, Josephine Whitley was not made a party to this action. She did not appear voluntarily, and service of process upon her in Washington could give no jurisdiction to the Idaho courts to adjudge anything with respect to her rights or bind her in any fashion by any judgment they might render.

Plaintiff went into the courts of Tennessee, setting up and relying upon the Washington judgment, declaring the recovery by the administratrix to have been in part for her benefit, and praying that the portion to which she was entitled be set over to her. By such acts she ratified and affirmed that judgment, and will not now be heard to deny its validity. (23 Cyc. 698; Davis v. Cornwall, 68 F. 522, 15 C. C. A. 559; Town of Weston v. Ralston, 48 W.Va. 170, 36 S.E. 453; Ryan v. Doyle, 31 Iowa 53; Haynes v. Powell, 1 Lea (69 Tenn.), 347; Arthur v. Israel, 15 Colo. 147, 22 Am. St. 381, 25 P. 81, 10 L. R. A. 693.)

A person who, with full knowledge of the facts, decides to seek one remedy, cannot, merely because through misadventure he fails to be made whole through the remedy he seeks, thereafter pursue an inconsistent remedy. (Gaffney v. Megrath, 23 Wash. 476, 63 P. 520; Jones v. First Nat. Bank, 3 Neb. Unof. 73, 90 N.W. 912; Jones v. Stewart, 62 Neb. 207, 87 N.W. 12; Fowler v. Bowery Sav. Bank, 113 N.Y. 450, 10 Am. St. 479, 21 N.E. 172, 4 L. R. A. 145; Gentry v. Bearss, 88 Neb. 742, 130 N.W. 428; E. J. Codd Co. v. Parker, 97 Md. 319, 55 A. 623; White v. White, 68 Vt. 161, 34 A. 425; Farwell v. Myers, 59 Mich. 179, 26 N.W. 328; Dickson v. New York Biscuit Co., 211 Ill. 468, 71 N.E. 1059; In re Hildebrant, 120 F. 992; Barrell v. Newby, 127 F. 656, 62 C. C. A. 382; Crook v. First Nat. Bank, 83 Wis. 31, 35 Am. St. 17, 52 N.W. 1131; Paris v. Sheppard, 125 Iowa 255, 101 N.W. 114; Welsh v. Carder, 95 Mo.App. 41, 68 S.W. 580.)

There was a denial of full faith and credit to the Washington and Tennessee judgments. (Mills v. Duryee, 7 Cranch (U.S.), 481, 3 L.Ed. 412; Hampton v. McConnel, 3 Wheat. (U.S.) 234, 4 L.Ed. 378; Cheever v. Wilson, 9 Wall, (U.S.) 123, 19 L.Ed. 604; Christmas v. Russell, 5 Wall. (U.S.) 302, 18 L.Ed. 475.)

Defendant has discharged his full obligation when he has paid the judgment rendered against him. It is for the parties entitled to participate in the proceeds of the judgment to see that a proper distribution is made. (13 Cyc. 380-382; 8 Am. & Eng. Ency. of Law, 2d ed., 955; Weidner v. Rankin, 26 Ohio St. 522; Baltimore etc. R. Co. v. Wightman, 29 Gratt. (Va.) 431, 26 Am. Rep. 384; Conant v. Griffin, 48 Ill. 410.)

No statute of Washington forbids a foreign administrator to sue in its courts. A foreign representative may sue to collect a claim where the claim sued upon could not be made the subject of local administration, since in such cases the reasons for the rule prescribing suits by foreign representatives do not apply. (18 Cyc. 1239; Purple v. Whithed, 49 Vt. 187.)

A foreign administrator may sue to recover damages for causing the death of his intestate. (Wabash etc. Co. v Shacklet, 105 Ill. 364, 44 Am. Rep. 791; Jeffersonville etc. R. Co. v....