Williams v. Chicago, B. & Q. Ry. Co.

• Decision Date: 17 February 1913
• Citation: 155 S.W. 64,169 Mo. App. 468
• Court: Missouri Court of Appeals
• Parties: WILLIAMS et al. v. CHICAGO, B. & Q. RY. CO.

155 S.W. 64

169 Mo. App. 468

WILLIAMS et al. v. CHICAGO, B. & Q. RY. CO.

Kansas City Court of Appeals. Missouri.

February 17, 1913.

Rehearing Denied April 7, 1913.

1. PLEADING (§ 36) — ADMISSIONS — CONCLUSIVENESS.

Where the answer, in an action by a curator of nonresident minors to recover for their father's negligent death, attacked the legality of the curator's appointment only upon the ground that the minors were nonresidents and had no estate in the state, and the answer prayed for a decree setting aside "the order of the probate court whereby the said B. was by said probate court appointed or undertaken to be appointed curator," the appointment of the curator cannot be attacked on appeal on the ground that the appointment was made by the clerk and not by the court, as required by Rev. St. 1909, § 414.

2. GUARDIAN AND WARD (§ 17) — APPOINTMENT — COLLATERAL ATTACK.

It must be conclusively presumed, on a collateral attack of the appointment of a curator by the probate court for nonresident minors, that the facts necessary to authorize the appointment were determined to exist, unless the record shows on its face that the court had no authority to make the appointment.

3. GUARDIAN AND WARD (§ 8) — APPOINTMENT OF GUARDIAN — EXISTENCE OF "ESTATE."

Nonresident minors, whose only property within the state was a statutory right of action for the negligent death of a parent in a railroad accident within the state, had an "estate" within the meaning of Rev. St. 1909, § 414, authorizing the appointment of curators for nonresident minors who have any estate within this state.

4. GUARDIAN AND WARD (§ 8) — "ESTATE" — "PROPERTY."

The word "estate" has as broad, if not a broader, meaning than the word "property," signifying, when used in some connections, everything of which riches or fortune may consist.

5. DEATH (§ 36) — ACTIONS — VENUE.

An action for wrongful death under Rev. St. 1909, § 5425, imposing upon a carrier as a penalty for the death of every passenger caused by its negligence a sum of not less than $2,000 or more than $10,000, is transitory, and may be brought in any county in which the railroad company may be found, though the death occurred in some other county.

6. DEATH (§ 96) — RIGHT OF ACTION — PURPOSE OF STATUTE.

Rev. St. 1909, § 5425, providing that whenever death be caused by any negligence of a carrier, etc., it shall forfeit as a penalty for every passenger so dying not less than $2,000 and not exceeding $10,000, in the jury's discretion, was intended both to protect the public by compelling care by the carrier and to secure compensation for negligent injuries; being partly penal and partly compensatory.

7. DEATH (§ 70) — ACTIONS — ADMISSION OF EVIDENCE.

In an action under Rev. St. 1909, § 5425, providing that for the death of a passenger caused by a carrier's negligence it shall forfeit as a penalty not less than $2,000 and not exceeding $10,000 at the jury's discretion, the amount awarded must be left to the jury's discretion, though the minimum amount may be recovered in every case, so that evidence whether a parent killed in a railroad accident had given and would have continued to give support and aid to his minor children was admissible in their action for damages under the statute, though evidence of his failure in a single instance to pay alimony to his wife was not relevant on the question of future support of his children.

8. TRIAL (§ 48) — RECEPTION OF EVIDENCE.

A question which sought to place both proper and improper evidence before the jury en masse was properly excluded.

9. CARRIERS (§ 315) — PASSENGERS — INJURIES — PROOF.

Under an allegation, in a petition for a passenger's wrongful death, that the railroad company permitted its roadbed and track to become unsafe, evidence is not admissible to show that the wreck occurred by mistake of the train dispatcher or a defect in the locomotive.

10. CARRIERS (§ 316) — PASSENGERS — NEGLIGENCE.

The fact that the wheels of a passenger car left the rails and ran along the ties without any showing of defective wheels or trucks made a strong prima facie showing that the track or roadbed was defective.

11. NEGLIGENCE (§ 61) — PROXIMATE CAUSE.

The question of proximate cause does not arise where the injury resulted from two or more causes for all of which defendant was responsible.

12. CARRIERS (§ 305) — INJURIES — PROXIMATE CAUSE.

Though one of the cars in a passenger train "climbed the rail" before reaching defective ties, where the wreck occurred, if it would not have occurred but for the decayed ties, the latter were a proximate cause of the accident.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Action by Harford Williams and others, by curator, against the Chicago, Burlington & Quincy Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Warner, Dean, McLeod & Timmonds, of Kansas City, for appellant. Rees Turpin and A. P. Woodson, both of Kansas City, for respondents.

ELLISON, J.

Plaintiff is the curator of two children, aged three and six years. Their father and mother had been divorced for some time when the father was killed in a wreck of one of defendant's trains in Platte county, in this state. Charging the wreck to the negligence of defendant, this action was brought under the statute, to recover damages for the children. Plaintiff prevailed in the trial court.

Several interesting and important points have been raised by defendant and discussed by the respective counsel. Defendant challenges plaintiff's right to sue on the ground that his appointment was made by the clerk of the probate court and not by the court itself. The divorced mother and these children reside in Chicago, Ill. The statute (section 414, R. S. 1909) provides that curators for nonresident minors who "have any estate within this state" shall be appointed by the probate court. But we cannot consider the validity of the appointment as made by the clerk, from the fact that defendant's answer is an admission that the appointment was made by the court. The answer did attack the legality of the appointment, but it was upon the ground that the children were nonresidents of Missouri and had no estate therein. In pleading that objection to the legality of plaintiff's appointment, defendant refers to his appointment by the probate court without reference to the clerk and closes its answer with this prayer: "Wherefore defendant prays the court to make and enter of record a decree setting aside and annulling the order of the probate court whereby said George H. Bunting was by said probate court appointed or undertaken to be appointed curator of said Harford and Lucile Williams." Defendant thus admitted in the trial court the appointment by the probate court, and is now estopped to deny it on appeal.

But the objection that the children have no estate in this state is properly raised and we have given it due consideration. At the outset plaintiff claims that the probate court, in regard to the appointment of curators, is a court of general jurisdiction; that the same presumptions and intendments follow its action as those of any other court of general jurisdiction; that therefore questions of fact necessary to the court's action in appointing a curator must be conclusively presumed, in a collateral proceeding, to have been investigated and passed upon by that court, and hence the question is a closed one in this collateral case. The proposition of law thus advanced by plaintiff is correct. Johnson v. Beazley, 65 Mo. 250, 27 Am. Rep. 276; Sherwood v. Baker, 105 Mo. 472, 16 S. W. 938, 24 Am. St. Rep. 399; State ex rel. Crouse v. Mills, 231 Mo. 493, 133 S. W. 22. But there is this qualification to such statement of the law: If the face of the record shows facts which leave the court without authority to act, no presumption can arise and jurisdiction must fail. Robbins v. Boulware, 190 Mo. loc. cit. 52, 53, 88 S. W. 674, 109 Am. St. Rep. 746; Desloge v. Tucker, 196 Mo. 587, 601, 94 S. W. 283. The defect "should be found on the face of the record, or, at any rate, in the files or returns." Desloge v. Tucker, supra.

In this case a fact does appear upon the face of the proceedings in the probate court which defendant claims left it without power to appoint plaintiff curator. This was a statement of record that all the children had in Jackson county, or indeed in the entire state, was the right of action now in suit. We must therefore consider whether such right is an "estate" in the sense used in the statute referred to above. Defendant, in denying such claim is an estate, likens it to the right given an administrator in sections 105 and 106, R. S. 1909, to sue "for all wrongs done to property, rights or interests of another." A property right, as used in that statute, is held by our Supreme Court not to include an action by the administrator for damages for the death of his intestate. Gilkeson v. Railroad, 222 Mo. 173, 121 S. W. 138, 25 L. R. A. (N. S.) 844, 17 Ann. Cas. 763; Bates v. Sylvester, 205 Mo. 493, 104 S. W. 73, 11 L. R. A. (N. S.) 1157, 120 Am. St. Rep. 761, 12 Ann. Cas. 457. But that was in reference to the claim of the injured party which his administrator sought to enforce. It was a claim for an injury to the person, as distinguished from an injury to his property; it was held to be an injury to personal rights as distinguished from property rights. The claim in this case is not for an injury to the person of the claimants, but is for an injury to, or destruction of, their means of support. They had a right to the maintenance and support of their father. Defendant has destroyed that support and did thereby destroy their property. So we are cited by defendant to Perry v. St. Joseph & W. R. Co., 29 Kan. 420, which decides that a right of action for damages for wrongfully causing the death of a person is not an estate, and, that being all there was in a certain county, an administrator could...