Clore v. McIntire

• Decision Date: 08 October 1889
• Docket Number: 13,868
• Citation: 22 N.E. 128,120 Ind. 262
• Parties: Clore v. McIntire, Administrator
• Court: Indiana Supreme Court

22 N.E. 128

120 Ind. 262

Clore v. McIntire, Administrator

No. 13,868

Supreme Court of Indiana

October 8, 1889

From the Parke Circuit Court.

Judgment affirmed.

T. F Davidson, F. M. Dice, M. D. White and W. S. Moffett, for appellant.

G. W Paul, J. E. Humphries, W. H. Thompson and J. West, for appellee.

OPINION

Elliott, C. J.

The appellee describes himself in his complaint as the administrator of the estate of Rhoda McIntire, deceased, and avers that he was appointed on the 22d day of October, 1886. He also avers that Rhoda McIntire died intestate, leaving surviving her four children, George, Sallie, Lenora, and Harmon, and her husband, and that they are the next of kin and only heirs of the deceased. The facts pleaded as the cause of action, shortly stated, are these:

The appellee, his wife, Rhoda McIntire, and their children were attending an agricultural fair, and were sitting in their vehicle, which was standing at a place set apart for vehicles, and away from the travelled ways of the fair ground; there were twenty thousand persons on the ground, and a great number of vehicles; the defendant wrongfully drove a large, unbroken, and unmanageable stallion, wild and vicious in disposition, through the fair, well knowing the disposition of the horse; while driving the stallion, and when passing the vehicle in which the deceased and her family were sitting, the defendant well knowing the danger of bringing an unmanageable and vicious stallion among the persons and vehicles on the ground, struck the animal with a whip, causing it to rear, kick, and jump; while the horse was jumping and kicking it leaped on the wagon where the deceased was sitting, overturned it, and the deceased was thrown to the ground and so bruised and wounded that she became ill, and so continued until she died. Her death resulted from the injury caused by the defendant's horse leaping on the wagon.

It is directly averred that the death of Rhoda McIntire was caused solely by the wrongful and negligent act of the defendant, and without fault on her part or that of the appellee.

The general frame and tenor of the complaint, as well as the material specific averments, require us to adjudge that this action is prosecuted by the appellee in his representative character, and not in his individual capacity. The fact that he was appointed administrator is well pleaded. He describes himself as administrator, and gives the names and ages of the children of his intestate. It is true, that in the conclusion of his complaint, he avers that "by the death of Rhoda McIntire he is damaged in the sum of ten thousand dollars;" but this can not be allowed to carry us to the conclusion that he sues in his individual capacity. Pleadings are not to be judged from general statements, or detached sentences, but from their general scope and tenor; and, so judging the pleading before us, it can not be construed as founded on a cause of action in favor of the husband. In construing the complaint as one prosecuted by an administrator in his representative capacity, we do not, indeed, do any violence to the words we have quoted, for the just construction is, that they mean that the plaintiff as administrator was injured in the sum named.

As the recovery sought is by the appellee in his representative capacity, it is sufficient if the complaint shows a cause of action in him in that capacity. Hence, the question here is not whether the husband is next of kin, but whether the case made is one in which an administrator can recover. If some persons are named who are not next of kin, and others are named who are next of kin, a right of action is shown in the administrator. It is not the next of kin who sue, although they may eventually be the beneficiaries; but it is the administrator, and there is, therefore, only one plaintiff. If there is a right of action in him, it can make no difference that some persons are erroneously described as next of kin. The fallacy of the appellant's argument lies in the initial proposition, implied, rather than stated, that the action is by several persons. As the action is by one person, the administrator,...