Williams v. Chicago, Burlington & Quincy Railway Co.
| Decision Date | 17 February 1913 |
| Citation | 155 S.W. 64,169 Mo.App. 468 |
| Parties | HARFORD WILLIAMS et al. by Curator, Respondents, v. CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Thos. J. Seehorn, Judge.
AFFIRMED.
Judgment affirmed.
Warner Dean, McLeod & Timmonds for appellant.
Rees Turpin and A. P. Woodson for respondents.
--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, Illinois. The statute (Sec. 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 and 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; Sherwood v. Baker, 105 Mo. 472, 16 S.W. 938; State ex rel. v. Crouse, 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. 33, 53, 88 S.W. 674; 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, Revised Statutes 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; Bates v. Sylvester, 205 Mo. 493, 104 S.W. 73.]
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 not be appointed in such county. But that decision is on the ground that the deceased did not have a right of action, since it did not survive him. That the right of action was a right to a new action, the benefit of which was given by statute to the widow and children. It was not a part of the estate of the deceased at all, the judgment not being assets of the estate, and therefore there was nothing upon which to base letters of administration. Whereas in this case the right of action is in the children and belongs to them as such.
In so far as concerns the proper designation to be given to the right of these children, we think James v. Christy, 18 Mo. 162, is applicable. There, a son was killed by the negligence of a common carrier. The father sued and died while the action was pending. It was held that the father's loss was to his property in that he lost the service of his son, in which he had a property right, and that his administrator could continue the prosecution of the action.
The statute we are considering uses the word "estate" instead of "property," but that would not lessen the force of what we have said; for "estate" has equally as broad, if not a broader, meaning than "property." It has been said in some connections "to signify everything of which riches or fortune may consist." [Bouvier's Dictionary.]
But in order to give jurisdiction to the probate court to appoint plaintiff curator, it was necessary under the provisions of the statute that the estate of the children should be in the county where the appointment is made. This cause of action existed in Jackson county. It had a situs there. For it is a transitory action and finds lodgment wherever the defendant may be found, notwithstanding it may have arisen in some other place. In this instance the defendant corporation was found in Jackson county and there the action was brought.
Defendant insists errors were committed in the trial in the refusal of evidence tending to show the life of deceased was of no value to the children.
The statute (Sec. 5425, R. S. 1909) under which this action was brought, reads in part as follows: Wherever anyone's death shall be "occasioned by any defect or insufficiency, unskillfulness, negligence or criminal intent above declared (the carrier), shall forfeit and pay as a penalty for every such . . . passenger so dying the sum of not less than two thousand dollars ($ 2000) and not exceeding ten thousand dollars ($ 10,000), in the discretion of the jury." That statute has a double object,--one to protect the public by enforcing watchfulness and care on the part of the railway, and the other to secure compensation to those who have suffered damage by the wrongful act. It is therefore said to be partly penal and partly compensatory. [Gilkeson v. Railway Co., 222 Mo. 173, 121 S.W. 138; Boyd v. Railroad, 236 Mo. 54, 82-87, 139 S.W. 561; Murphy v. Railroad, 228 Mo. 56.]
If the defendant is liable at all, the least amount of that liability is two thousand dollars. If the deceased be absolutely worthless in a pecuniary sense, that sum would still be properly assessed, since though it could not be compensation, it would be the penalty allowed. There is no way to know just what part of a given verdict is penalty and what is compensation. But since the jury considers both kinds of liability, it should have some basis fixed by the evidence upon which to estimate just compensation for the loss which the plaintiff has sustained. The loss of a thrifty husband or father who supplied all the necessities and comforts of life, would be greater than the loss of a worthless one. And since the real loss is subject to so many unforeseen accidents and contingencies of life that it cannot be estimated with mathematical accuracy, the amount thereof, within the statutory limit, is necessarily left, not to the caprice, but to the sound sense and discretion of the jury; and it is proper that they should be informed as to the character of support and help he was to those who complain of pecuniary loss by being deprived of it.
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