Willgues v. Pennsylvania Railroad Co.

• Citation: 298 S.W. 817,318 Mo. 28
• Decision Date: 10 October 1927
• Docket Number: 25949
• Parties: Ida V. Willgues, Administratrix of Estate of Louis M. Willgues, v. Pennsylvania Railroad Company, Appellant
• Court: Missouri Supreme Court

298 S.W. 817

318 Mo. 28

Ida V. Willgues, Administratrix of Estate of Louis M. Willgues, v. Pennsylvania Railroad Company, Appellant

No. 25949

Supreme Court of Missouri

October 10, 1927

Appeal from Jackson Circuit Court; Hon. Samuel A. Dew Judge.

Affirmed (upon condition).

Harkless & Histed for appellant.

(1) The court erred in refusing to give the instruction asked by defendant at the close of the evidence directing a verdict for defendant. Nugent v. Milling Co., 131 Mo. 246. (2) The court erred in holding that the alleged negligence was the proximate cause of the death of deceased. State ex rel. v. Cox, 276 S.W. 869. (3) The title to the cause of action and ownership thereof was vested in the Pennsylvania administratrix, and this plaintiff as administratrix cannot maintain the action. Thompson v Railroad Co., 262 Mo. 485. (4) Neither an administrator nor the probate court in Missouri possess extra-territorial power to take or interfere with or enforce a cause of action accruing in Pennsylvania, against the railroad company, a resident of Pennsylvania. Estate of Henry Ames & Co., 52 Mo 290. (5) The foreign appointment of the administratrix was within the jurisdiction of the court and the alleged fraud in its procurement is wholly ineffective in the impeachment of that judgment. Lieber v. Lieber, 239 Mo. 31; Cox v. Boyce, 152 Mo. 581. (6) Probate court proceedings are proceedings in rem, as to which all the world is charged with notice. Goodrich v. Ferris, 214 U.S. 80; Cowan v. Mueller, 176 Mo. 198. (7) It was error in the court to permit the plaintiff to prove that chains may have wrapped around the brake rod, and prevented control of the car, because no such allegation of negligence existed in the petition and in fact there was no evidence that it did wrap around the brake operated by deceased, and in permitting evidence that the platform was too small. Harty v. Railroad, 95 Mo. 371. The court erred in excluding the sworn statement admitted to have been signed by the plaintiff offered as discrediting her testimony. State v. Roberts, 294 Mo. 302; 1 Greenleaf on Evidence (16 Ed.) 416b.

C. A. Randolph, Rosenberger, McVey & Freet and John C. Sheriff for respondent.

(1) There was no error in refusing to give defendant's peremptory instruction at the close of all the evidence directing a verdict for the defendant. Plaintiff's petition was based upon a number of assignments of negligence, which assignments were supported by substantial evidence. The defendant demurred generally to the evidence, offering no withdrawing instructions as to any of the assignments of negligence so pleaded. Accordingly, the general demurrer was properly overruled. Schroeder v. Wells, 276 S.W. 63; Motz v. Watson, 284 S.W. 840; Torrance v. Pryor, 210 S.W. 430; Goggin v. Wells, 249 S.W. 702; Conley v. Railroad Co., 253 S.W. 427. The evidence amply supports the several pleaded assignments of negligence, and particularly the assignments under which the cause was submitted to the jury. Schroeder v. Wells, 276 S.W. 63; Evans v. General Explosive Co., 239 S.W. 487. (2) There was no error in the court permitting the Missouri administratrix to maintain the action. (a) Appellant's purported assignments of error and points and authorities fail to point out any error as required by Rule 15 of the Supreme Court, and are wholly insufficient to raise any question for review in this court. Rusch v. Valle, 237 S.W. 111; Nevins v. Gilliland, 290 Mo. 293; Hanchett v. Palm, 220 S.W. 673; Frick v. Ins. Co., 279 Mo. 156; Duffy v. Allen, 220 S.W. 857; Bradbury v. Crites, 281 S.W. 731; State ex rel. Davidson v. Caldwell, 276 S.W. 633; Marks v. Acme Phonograph Co., 236 S.W. 901; Hayes v. McLaughlin, 217 S.W. 262; Hunt v. Hunt, 270 S.W. 369. (b) The objections sought to be raised by appellant's purported assignments of error go to the pleadings in the case and the face of the record proper, and not to any matter of exception. Appellant filed no motion in arrest of judgment, thereby precluding a review in this court of any complaint now made in respect to such matters. Midwest Natl. Bank v. Parker Corn Co., 211 Mo.App. 413; Tuttle v. Chostner, 260 S.W. 822; LaRue v. Bloch, 255 S.W. 322; Hope Lumber Co. v. Stewart, 241 S.W. 680; King v. Wholesale Grocer Co., 188 Mo.App. 235; Simpson v. Wells, 237 S.W. 526; Nichols & Shepard Co. v. Stokes, 196 S.W. 1076. (c) Appellant pleaded no constitutional question in its original answer and requested no instruction to the jury based upon the full-faith-and-credit clause of the Federal Constitution, and filed no motion in arrest of judgment invoking said constitutional provision. Moreover, no constitutional question is alleged or sought to be raised in appellant's assignments of error or points and authorities. Accordingly, all constitutional questions have been abandoned and waived by the appellant and are not before this court for review. Dorrah v. Pemiscot County Bank, 248 S.W. 960; Wechsler v. Davis, 239 S.W. 557; Lavelle v. Life Ins. Co., 231 S.W. 616; Lohmeyer v. Cordage Co., 214 Mo. 685; Roy v. Kansas City, 204 Mo.App. 332. (d) The Federal Employers' Liability Act, designating the personal representative of the deceased to bring the action creates transitory causes of action that may be enforced in any jurisdiction where the defendant may be found, or may appear, and such act may be enforced by any such person who can qualify as such personal representative under the laws of the place where such action is sought to be maintained. Dennick v. Railroad, 103 U.S. 11; Stewart v. Railroad Co., 168 U.S. 445; Hanlon, Admx. v. Leyland & Co., L. R. A. 1917A, 34; Kelly v. Railroad Co., 151 Mo.App. 490; Shaw v. Chicago & Alton, 282 S.W. 418; Anderson v. Ry. Co., 210 F. 689; Williams v. Railway, 169 Mo.App. 469; Voris v. Railway, 172 Mo.App. 125; Laduke v. Dexter, 202 S.W. 259; Ellis v. Railway, 153 S.W. 701; Rivira v. Railway, 149 S.W. 223; Smitha v. Railway, 192 S.W. 237. (e) The evidence, both oral and documentary, clearly shows that the Pennsylvania administration proceedings were engineered by the defendant and were the product of a fraudulent and collusive scheme, and effected through a conspiracy between the defendant and one Ellen Willgues, of New Straightsville, Ohio, whereby the defendant for a nominal sum, or, in fact, for no consideration at all, was to procure from said Ellen Willgues, as the administratrix, a release of all claims because of Willgues' wrongful death, and the said Ellen Willgues, in turn for executing said release, was to get a part of the insurance money defendant already owed her as beneficiary under a certificate held by her on Willgues' life in defendant's insurance or relief fund. Pisano v. Railroad Co., 66 N. J. L. 1; Whitley v. Railroad Co., 237 U.S. 487; Evans v. Railroad Co., 188 F. 6; Anderson v. Railway Co., 210 F. 689; Aho v. Jesmore, 10 L. R. A. (N. S.) 998; Sec. 5, Employer's Liability Act (35 Stat. L. 66; 8 Fed. Sts. Ann. 2d Ed. 1364); McIntyre v. Frisco, 227 S.W. 1047; Delosge v. Tucker, 196 Mo. 587; Abbington v. Townsend, 197 S.W. 253; Bombolis v. Railroad, 150 N.W. 385; Hogg v. Link, 90 Ind. 357. (f) The estate of Louis M. Willgues, deceased, was finally closed in the Orphans' Court of Allegheny County, Pennsylvania, on June 17, 1921, and Ellen Willgues, the Pennsylvania administratrix, was discharged as such on said date, pursuant to a decree of said court on said date, and said administration and the proceedings thereunder, according to the laws of Pennsylvania, became final and unappealable three weeks after said date. Accordingly there was no personal representative of Willgues's estate in existence from June 17, 1921, until Ida V. Willgues was appointed as such at Willgues's and her domicile in the Probate Court of Jackson County, on August 3, 1921. (g) The pendency of an administration of the estate of Louis M. Willgues in Allegheny County, Pennsylvania, and the existence of an administratrix there, even if that administration had not been closed and the administratrix discharged, did not preclude an administration of Willgues's estate in Jackson County, the place of his domicile, nor prevent the administratrix under said administration from bringing and maintaining in Missouri an action against the defendant for the wrongful death of the said Willgues, deceased. Anderson v. Railway, 210 F. 689.

OPINION

Gantt, J.

This is a suit by Ida V. Willgues, widow and administratrix of Louis M. Willgues, deceased, under the Federal Employers' Liability Act, against the Pennsylvania Railroad Company and the Pittsburgh, Cincinnati, Chicago & St. Louis Railroad Company, for the death of Louis M. Willgues while switching freight cars in the Scully Yards, near Pittsburgh, Pennsylvania. The case was dismissed as to the Pittsburgh, Cincinnati, Chicago & St. Louis Railroad Company, and a verdict was returned against the Pennsylvania Railroad Company for $ 20,000, which company appealed.

Eight grounds of negligence are alleged in the petition, but only two grounds were submitted to the jury, as follows:

First, that a switchman was at fault in not throwing a switch and diverting the car on which Willgues was riding, to a clear track, and in not giving a warning signal to Willgues that standing cars were ahead on the track; second, that appellant was negligent because it did not properly instruct Willgues how to control cars moving down the hump and into the yards, for classification.

The answer is (a) general denial, (b) assumption of risk, (c) contributory negligence, (d) and that before respondent was appointed administratrix of her husband's estate in the Probate Court of Jackson County, Missouri, the Orphans Court of Allegheny County, Pennsylvania, appointed Ellen Willgues of Ohio, the mother of...