Ellenberg v. Arthur

• Decision Date: 02 January 1936
• Docket Number: 14195.
• Citation: 183 S.E. 306,178 S.C. 490
• Parties: ELLENBERG v. ARTHUR et al.
• Court: South Carolina Supreme Court

183 S.E. 306

178 S.C. 490

ELLENBERG v. ARTHUR et al.

No. 14195.

Supreme Court of South Carolina

January 2, 1936

Appeal from Common Pleas Circuit Court of Aiken County; Thomas M Boulware, Special Judge.

Action by A. R. Ellenberg, as administrator, against W. T. Arthur and others. Judgment for plaintiff, and defendants appeal.

Affirmed.

Hendersons & Salley, of Aiken, for appellants.

W. M Smoak and John E. Stansfield, both of Aiken, for respondent.

BONHAM Justice.

W. T Arthur, one of the appellants, operated a line of automobiles as carrier of passengers for hire between Aiken, S. C., and Augusta, Ga. Clint Palmer was in the employ of Arthur as the driver of one of his automobiles. United States Fidelity & Guaranty Company became surety for W. T. Arthur in the sum of $5,000 in a policy or bond in pursuance of the acts of the General Assembly in such case made and provided, which bond provided that it should be for the benefit of, and subject to suit thereon, by any person who shall sustain actionable injury or loss while a passenger on the automobile or bus covered by said policy, caused by the negligence of W. T Arthur as common carrier, his servants or agents. May 23, 1933, Corbitt Huggins took passage on one of the automobiles or a bus of W. T. Arthur to be transported to his home at Bath, S. C., from Augusta, Ga. The motorcar in which he was riding collided with a truck, and Corbitt Huggins suffered injuries from which he died the same day. Ethel Huggins made petition to the probate court to be appointed administratrix of his estate, stating that she was the wife of Corbitt Huggins and the children therein named were his children. After due publication of citation, letters of administration were issued to her by the judge of the probate court for Aiken county of date June 26, 1933. She gave bond and entered upon the discharge of her duties as administratrix. Negotiations for the settlement of the claim for damages, action for the recovery of which was about to be begun, culminated in an agreement between this administratrix and the defendants to settle all claims for damages growing out of the death of Corbitt Huggins for the sum of $1,500. June 26, 1933, this administratrix filed in the probate court for Aiken county a petition praying that she be authorized to settle all such claims for the sum named. The probate judge held a hearing on the petition, at which were present the petitioner and her attorney. No one was present representing the defendants Arthur and Palmer, but an adjustor was present representing the United States Fidelity & Guaranty Company. The hearing resulted in an order by the probate judge by which Ethel Huggins was ""authorized and permitted to settle all claims of herself as administratrix, of herself as widow, and of the minor children of the said Corbitt Huggins, deceased, against W. T. Arthur and Clint Palmer, for damages to him or them on account of the death of the deceased, for the sum of ($1,500.00) Fifteen Hundred Dollars. * * * It is further ordered that said $1,500.00 paid to said administratrix in full settlement of all claims of every kind or character, by her and for the benefit of the heirs at law of the deceased shall be immediately distributed by her according to the laws of distribution of this State in such cases made and provided."

Upon the signing of this order, the adjustor for the insurance company gave the draft of the company in the sum of $1,500 payable to "the order of John D. Canady, Attorney, and Ethel Huggins, Admx. the Estate of Corbitt Huggins." This draft was duly paid. From it there was paid to John D. Canady, as his fee, the sum of $500, and to Ethel Huggins the sum of $331.60 as her share as widow. There was left in the hands of the judge of probate the sum of $649.20, the shares of the minors, awaiting the appointment of a guardian for them. It is still in his possession. On receiving the draft, Ethel Huggins, as administratrix and as an individual, gave to W. T. Arthur a written release from all claims arising from "the above mentioned damages, losses or injuries."

Thereafter, to wit, July 6, 1933, Emma Huggins came from Gibson, N. C., and filed a petition in the probate court for Aiken county alleging that she was the lawful wife of Corbitt Huggins, and that she and her four children were his only lawful heirs, that Ethel Huggins had practiced a fraud on the probate court, and praying that the letters of administration given to Ethel Huggins be revoked and cancelled. The probate judge issued a rule requiring Ethel Huggins to show cause why the letters issued to her should not be revoked, the entire proceedings by her set aside, and some other person appointed administrator in her stead. Ethel Huggins duly made reply to the rule, setting out, among other things, that she was the common-law wife of Corbitt Huggins and the mother of three children by him. After the hearing, the judge of probate revoked the letters of administration granted to Ethel Huggins, and, at the request of Emma Huggins, appointed A. R. Ellenberg administrator of the estate of Corbitt Huggins. No new citation was published, nor did any other person apply for letters of administration.

This action was then brought seeking damages in the sum of $5,000 for the benefit of Emma Huggins and her children by Corbitt Huggins. It is an action under the provisions of our statutes embodying the principles of Lord Campbell's Act.

The defendants set up the settlement in the probate court as a bar to the action; that the plaintiff was without capacity to sue because his appointment as administrator was irregular and void because there had been no petition by him, nor any publication of a new citation, and the plaintiff was not related to the deceased, and the deceased left no assets in this state on which to administer. Answering further, that the collision was an accident due to very heavy rain and wind, and was not due to any negligence on the part of defendants.

The case came on for trial before Hon. Thomas M. Boulware, special judge, and resulted in a verdict for plaintiff in the sum of $2,500.

Motion for directed verdict for defendants was made in due course and refused. This appeal followed, based on five exceptions with numerous subdivisions. All of them shall have consideration, but may not be specifically stated.

The cardinal questions in the case are made by the issues arising under exception 1 and its subdivisions and the exceptions relating to alleged errors in the admission of testimony. In considering these, it is necessary to consider the grounds of the motion for directed verdict and the rulings of the court thereabout.

The motion for directed verdict was based on the grounds that the claims on which the action is brought were settled by a proceeding in the probate court, under an order of that court, by Ethel Huggins, then the duly appointed administratrix of the estate, and by the release which she gave; that, although her letters of administration were subsequently revoked, her acts done in the regular course of the administration were legal and binding. The further ground of the motion was that the plaintiff "has no legal power to maintain this action" because, on the day the letters of administration issued to Ethel Huggins were revoked, the judge of probate appointed A. R. Ellenberg administrator without having published the two weeks' notice required by the statute.

In passing on the motion for directed verdict, the trial judge held that the appointment of A. R. Ellenberg was legal. Further, in relation to the settlement in the probate court, he said: "But I do not think the Probate Court had authority, or if it did have authority did not take such procedure as would make its approval of the settlement binding or give it any validity."

He held that the parties had intended to settle the claims which the widow and children had, but had taken no thought of the difference between an action under the Survival Act (Code 1932, § 419) and one under Lord Campbell's Act. (Code 1932, §§ 411, 412).

Appellant's counsel have argued earnestly that the probate court, being a court of record and a court of concurrent jurisdiction with the court of common pleas of matters of the nature of those involved here, had power to authorize this settlement, and they cite many authorities, principally from other jurisdictions, in support of their argument. We do not think they are controlling. It may be admitted that at common law executors and administrators had power to compromise and settle doubtful claims coming within the province of their duties in administering the assets of the estate. That question is regulated in this state by our statute found in the Code of 1932 as section 8999, which is as follows: "All administrators and executors may, by and with the consent of the probate judge, compromise all demands coming into their hands as such, where the same are appraised doubtful or worthless; and where such compromises are made, the same shall be fully shown in their annual returns."

That section plainly applies to such claims as are to be listed on the statement for appraisal, such as notes, accounts, etc. These things come into the hands of the administrator or executor, and he must account for them. A claim under Lord Campbell's Act does not "come into the hands" of the administrator within the purview of this section. He is practically a figurehead in bringing the action as administrator. He brings it for the benefit of those who are the beneficiaries in interest under the statute. When he collects the claim, he does not turn it in with the other assets of the estate to the probate court. He makes no return thereof to the probate court. He pays over the proceeds to...