Barr v. MacHarg

• Decision Date: 14 June 1969
• Docket Number: No. 45371,45371
• Citation: 455 P.2d 516,203 Kan. 612
• Parties: Eunice BARR, Administratrix of the Estate of Deane W. Barr, Deceased, Appellant, v. William G. MacHARG, Administrator of the Estate of William G. MacHarg, Sr., Deceased, Appellee.
• Court: Kansas Supreme Court

Page 516

455 P.2d 516

203 Kan. 612

Eunice BARR, Administratrix of the Estate of Deane W. Barr, Deceased, Appellant, v. William G. MacHARG, Administrator of the Estate of William

G. MacHarg, Sr., Deceased, Appellee.

No. 45371.

Supreme Court of Kansas.

June 14, 1969.

Syllabus by the Court

1. The Wrongful Death Statute (K.S.A. 60-1901 et seq.) provides if the death of a person is caused by the wrongful act or omission of another, an action may be maintained by one of the heirs at law for the damages resulting therefrom against the wrongdoer, or his personal representative if he is deceased.

2. A surviving spouse is an heir at law of the deceased and is a real party in interest to bring such an action under K.S.A. 60-1902 for losses sustained by her and the surviving children.

3. In Kansas, probate jurisdiction of a nonresident decedent's estate is limited to tangible and intangible property having a situs in this state as provided in K.S.A. 1968 Supp. 59-805. The situs of rights and choses in action which are embodied in an insurance policy payable to an estate being administered in the state of Michigan is in the state of Michigan where the policy of insurance is located.

4. A nonresident who commits a tortious act within this state submits himself, and the administrator of his estate in event of his death, to the jurisdiction of the courts of this state as to any cause of action arising from the commission of said tortious act. When service of summons is obtained upon a nonresident administrator as provided in K.S.A. 60-308(b)(2) jurisdiction of the district court attaches.

5. The record in a wrongful death action brought against a nonresident administrator is examined, the judgment dismissing the action is reversed and the case is remanded for further proceedings.

Dale E. Dixon, Topeka, for appellant.

J. H. Eschmann, Topeka, L. M. Ascough and John A. Bausch, Topeka, on the brief, for appellee.

FROMME, Justice.

The present claim for relief arises from an automobile collision in Jackson county, Kansas, involving an automobile driven by Deane W. Barr, a resident of Jackson county, and one driven by William G. MacHarg, Sr., a resident of the state of Michigan. Both drivers were killed in the accident.

The plaintiff is the widow of Deane W. Barr. She is the duly appointed, qualified and acting administratrix of his estate in Kansas. The defendant, William G. MacHarg, is a resident of Wayne county, Michigan, and is the duly appointed, qualified and acting administrator of the estate of William G. MacHarg, Sr., by appointment of the probate court of Wayne county, Michigan.

The present claim for relief was filed in the district court of Jackson county, Kansas, where the collision occurred, by plaintiff Eunice Barr pursuant to K.S.A. 60-1901 et seq. to recover damages and losses sustained by reason of the wrongful death of Mr. Barr.

The foreign administrator filed a motion to dismiss the action. The district court sustained the motion on the ground the district court did not have jurisdiction of the subject matter or of the parties. The court in a letter of decision said:

'It seems to the court that K.S.A. 60-308b does not change substantive law of the State of Kansas wherein the Probate Court is held to have exclusive original jurisdiction of claims against a decedent's estate.'

On appeal to this court it is stipulated that William G. MacHarg, Sr., deceased, at the time of the alleged accident on September 29, 1965, had in full force and effect a policy of liability insurance affording said William G. MacHarg, Sr., protection against his liability, if any, in said accident. It was further stipulated the plaintiff filed a petition for the appointment of an administrator for William G. MacHarg, Sr., deceased in the probate court of Jackson county, Kansas, but no further proceedings were had in that court. No administrator has been appointed and no claim for wrongful death has been filed therein by plaintiff.

K.S.A. 60-1901 provides:

'If the death of a person is caused by the wrongful act or omission of another, an action may be maintained for the damages resulting therefrom if the former might have maintained the action had he lived, in accordance with the provisions of this article, against the wrongdoer, or his personal representative if he is deceased.' (Emphasis added.)

We note this statute specifically authorizes an action against the personal representative of the wrongdoer if the wrongdoer is deceased.

K.S.A. 60-1902 provides:

'The action may be commenced by any one of the heirs at law of the deceased who has sustained a loss by reason of the death. Any heir who does not join as a party plaintiff in the original action but who claims to have been damaged by reason of the death shall be permitted to intervene therein. The action shall be for the exclusive benefit of all of the heirs who has sustained a loss regardless or whether they all join or intervene therein, but the amounts of their respective recoveries shall be in accordance with the subsequent provisions of this article.'

The defendant points to the changes made in this wrongful death statute effective January 1, 1964. He contends the administratrix of the estate of Deane W. Barr, deceased, is not the real party in interest to this action since K.S.A. 60-1902 now provides the action should be brought by an heir at law who sustained loss by reason of the death.

Eunice Barr alleges in the petition she is the administratrix of her husband's estate, but she also alleges she is the surviving spouse and brings the action for the benefit of herself as surviving spouse and for the surviving children. She sues for losses sustained by her and the surviving children and the elements of damage alleged in her petition are those specified in K.S.A. 60-1904 as recoverable by an heir at law. The allegation that she is the administratrix of her husband's estate would not to be fatal to her cause of action under our present liberal rules relating to pleading. Eunice Barr is the widow and an heir at law of Deane W. Barr, deceased. As such she is a real party in interest to bring the action. (See Gard, Kansas Code of Civil Procedure § 1902 and K.S.A. Code of Civ.Proc., Fowks, Harvey and Thomas § 60-1902.)

As indicated in the district court's letter of decision service was completed upon the defendant-administrator in the state of Michigan pursuant to K.S.A. 60-308 which provides in pertinent part:

'(a) Proof and effect. (1) Personal service of summons may be made upon any party outside the state. If upon a person domiciled in this state or upon a person who has submitted to the jurisdiction of the courts of this state, it shall have the force and effect of personal service of summons within this state; otherwise it shall have the force and effect of service by publication.

'(b) Submitting to jurisdiction-process. Any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby submits said person, and, if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of said acts:

'(2) The commission of a tortious act within this state;

'Nothing herein contained limits or affects the right to serve any process in any other manner now or hereafter provided by law.'

We note in passing that the method of service provided does not limit or affect the right to serve process in any other manner, such as is provided in K.S.A. 8-402 et seq. However, the controversy in this case focuses on K.S.A. 60-308.

As pointed out in Woodring v. Hall, 200 Kan. 597, 600, 438 P.2d 135, subsection (b) subparagraph (2) of K.S.A. 60-308 was taken from the Illinois Civil Practice Act of 1955 (Smith-Hurd, Ill.Annot.Statutes, Ch. 110, § 17) by the committee which drafted our Code of Civil Procedure. The Supreme Court of Illinois has held under their statute an action may be brought in Illinois for damages against a foreign appointed administrator for injuries sustained in an automobile accident in Illinois caused by decedent and that said statute secures jurisdiction over a foreign administrator, notwithstanding the general rule that courts of one state should not interfere with the administration of a decedent's estate in another jurisdiction. (Hayden v. Wheeler, 33 Ill.2d 110, 210 N.E.2d 495; see also Nelson v. Miller, 11 Ill.2d 378, 143 N.E.2d 673.)

This court has recognized and applied the rule that a statute adopted from another state generally carries with it the construction placed upon it by the courts of that state. (Woodring v....