Denver, S. P. & P. Ry. Co. v. Woodward

• Decision Date: 01 December 1877
• Citation: 4 Colo. 1
• Court: Colorado Supreme Court
• Parties: DENVER, SOUTH PARK AND PACIFIC RALLWAY COMPANY v. WOODWARD, Ad'r.

4 Colo. 1

DENVER, SOUTH PARK AND PACIFIC RALLWAY COMPANY v. WOODWARD, Ad'r.

Supreme Court of Colorado

December, 1877

Appeal from District Court of Arapahoe County.

A DEFECTIVE switch on the track of the appellant caused the overturning of a car, resulting in the death of James Smith who was being conveyed as a passenger over appellant's road. Woodward, his administrator, brought an action for the use of Salome Smith, the widow. The declaration was in the ordinary form in case; plea of the general issue. The plaintiff below had judgment on the verdict in the sum of $5,000. The facts as well as the positions contended for in this court by the appellant are sufficiently set forth in the opinion. The instruction relative to compensatory damages referred to in the opinion of the court was as follows:

'Seventh. If you find for the plaintiff on the question of negligence you will, in determining the amount of damages to be assessed, take into consideration the evidence touching the probable accumulations of the deceased during the remainder of his life, that is, during the probable duration of his life, if he had not so come to his death, which would have gone to the benefit of his wife, having reference to his age bodily health, occupation, habits and abilities to work-provided his wife was dependent upon him for support.'

Messrs SAYRE & BUTLER, and HUGHES & WELBORN, for appellant.

Messrs SYMES & DECKER, for appellee.

THATCHER C. J.

This action is wholly statutory. It is founded upon section one of 'an act concerning damages,' approved February 8th, A. D. 1872 (Laws of 9th session, p. 117), which provides 'when the death of any person is caused by the wrongful act, misconduct, negligence or omission of another, the personal representatives of the former may maintain an action there for against the latter, if the former might have maintained an action had he or she lived, against the latter for the same act, misconduct, negligence, or omission, provided the action shall be commenced within two years from the date of the death of the injured person, etc.'

We are confronted in limine with the question as to whether to entitle a personal representative to recover in an action founded upon this statute, it is necessary, where the general issue only is pleaded, that he shall prove his character as such. Where an administrator, in his representative character, brings a suit upon a cause of action accruing to his intestate, and in his declaration makes profert of his letters of administration, he is not bound to produce the letters at the trial where the defendant has pleaded the general issue only. In such case the general issue admits the due appointment of the administrator, and puts the plaintiff upon proof of the alleged cause of action. The plaintiff's character is not questioned, but only his right to recover on the merits. Brockington, Administrator, v. Vereen, 1 Bailey (S. C.), 447; Kowanchi v. Askew, 17 Ark. 595; 2d Starkie on Ev. 548; 5 Robinson's Practice, 60; 1st Chitty's Pleadings, 517 (16th Am. ed.).

To a certain class of actions arising subsequent to the intestate's death, a different rule applies for obvious reasons.

Upon the appointment and qualification of an administrator, the personal property of the intestate by law vests in him. If, after his appointment, any such personal property should be converted by another, he may bring an action in trover at his election, either in his representative capacity, or in his individual character in his own right. In either case, upon general issue pleaded, in order to recover, he must show property in himself, which can only be done by the production of his letters of administration, or other competent evidence of his appointment. It is well understood that the plaintiff cannot succeed in this action, unless he proves: 1st, property in the thing converted, either general or special; 2d, a wrongful conversion by the defendant; 3d, his right to the possession of it, at the time of the conversion. Stevenson v. Little, 10 Mich. 439; Davidson v. Waldron, 31 Ill. 129; Vanderburgh v. Bassett, 4 Minn. 251.

It necessarily follows that for a conversion, in his own time, an administrator, to make out his case, must prove his representative character. It is a link in his chain of title. 1st Chitty's Pleading, 517.

It is equally true that when an administrator declares in ejectment upon his own seizin, to make out his case, it is essential for him to prove his appointment as administrator, as part of his title, although he need not declare as administrator. Aldis v. Burdick, 8 Vt. 21.

The plaintiff in ejectment, in the absence of statute, without proof that he was seized of the legal estate in the premises at the time of the alleged demise, must fail.

To the extent here indicated, and for the reasons above set forth, the text-books and cases cited by counsel in support of the doctrine there laid down (2 Starkie on Ev. 548; Redfield on Laws of Wills, 128, note; 1st Chitty's P1. 517 [16th Am.Ed.]; Browning v. Huff, 2 Bailey, 177; Aldis, Ex. v. Burdick, 8 Vt. 21; Hunt v. Stevens, 3 Taunt. 113; Marsfield v. Marsh, 2 Lord Raymond, 824; Blainfield v. March, 1 Salk. 285), and others, bearing a similitude to them in principle, go.

It will be observed that these authorities are confined to cases where the wrong or injury was done to the plaintiff, and in which he could maintain a suit in his own name without designating himself as administrator. The case under consideration does not belong to this class. Necessarily, under the statute the plaintiff must sue in his representative character. If he should not, the declaration would be demurrable. If the defendant had desired to challenge the appointment of the plaintiff as administrator, he might have interposed the plea of ne unques administrator.

This plea would have put the plaintiff upon proof of his representative character. Having plead the general issue only, he thereby waived the production of the letters of administration at the trial, and admitted that plaintiff was authorized to bring the suit. But defendant strenuously contends that if the general issue does not require the plaintiff to prove his appointment, the plaintiff nevertheless chose to put that fact in issue by offering in evidence his letters, and that therefore the parties, by their implied agreement in open court, having tendered an issue as to the validity of the letters, the court must decide the point. This is a specious but mooted doctrine, and in the case of Reynold's Executors v. Torrance, 2 Brevard (S. C.), 484, it was denied by a majority of the court. If we were disposed to accept it (which we are not, as it raises an issue foreign to the record) it would not avail the defendant in this case.

Even had the plea of ne unques administrator been filed, we are of opinion that the plaintiff sufficiently proved his representative character to meet it. Letters of administration were offered and read in evidence. An exception was taken to the introduction of the letters on two grounds: first, because they purported on their face to be merely letters of administration to collect; and second, because an administrator is not a personal representative within the meaning of the statute upon which the action is founded. Upon examination of the letters read in evidence, they are found to be a literal transcript of the form prescribed by statute, with the blanks therein appropriately filled up. R. S. 1868, p. 655, s 46.

It is insisted that these are only letters of administration to collect, for the reason that full thirty days had not elapsed subsequent to the death of the intestate prior to the appointment of the administrator. The law provides that if 'the widow or other relative of the intestate' shall fail to apply within twenty days from the death of such intestate, the probate court may grant administration to any creditor or creditors who shall apply for the same within the ten days next ensuing, and if no creditor applies within that time, administration may be granted to any person or persons whom the judge of probate may think will best manage the estate. R. S. 1868, p. 654, s 44. The statute thus accords to the widow or next of kin, and to the creditors, the right of applying for administration in the order prescribed therein. The parties entitled to apply for administration may waive the right and the judge may thereupon appoint any fit person.

Whether they did in fact waive their right cannot be determined in this cause. In this collateral proceeding we may not inquire whether the letters were issued to a person entitled to them or not. As the judge of probate had competent jurisdiction of the cause the regularity of the administrator's appointment can only be questioned in a direct proceeding for that purpose. Taylor v. Hosick, 13 Kans. 527; Sadler v. Sadler, 16 Ark. 633; Boody v. Emmerson, 17 N.H. 577; Emery v. Hidreth, 2 Gray, 231; Wight v. Wallbaum, 39 Ill. 554; Schnell v. City of Chicago, 38 id., 389.

This disposes of the first objection, and as to the second, that the administrator is a personal representative within the intent of the statute, and authorized to bring the suit, it is too well settled to need the citation of authorities.

Other objections to the letters of administration are raised for the first time in this court. It is objected that they are neither signed by the probate judge nor tested in his name as required by law.

Section 42 of chapter 90, concerning 'Wills, executors and administrators,' R. S., p. 654, declares that all letters testamentary and of administration shall be under the seal of the court, and attested and signed as other process.

Section 47 of the same chapter, R. S., p. 655, provides that...