Fentzka's Adm'r v. Warwick Const. Co.

• Decision Date: 09 February 1915
• Citation: 162 Ky. 580,172 S.W. 1060
• Parties: FENTZKA'S ADM'R v. WARWICK CONST. CO. ET AL. [d1]
• Court: Kentucky Court of Appeals

172 S.W. 1060

162 Ky. 580

FENTZKA'S ADM'R v. WARWICK CONST. CO. ET AL. ^[d1]

Court of Appeals of Kentucky.

February 9, 1915

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

Action by Charles G. Fentzka's Administrator against the Warwick Construction Company and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Eugene Hubbard and Alpha Hubbard, both of Louisville, and Walter C Barker, of Buffalo, N. Y., for appellant.

H. O Williams and J. L. Richardson, both of Louisville, for appellees.

HANNAH J.

On November 14, 1911, the Kennicott Company and the Warwick Construction Company, both Illinois corporations, were engaged in the construction of a smokestack for the Kentucky Electric Company in Louisville. Charles G. Fentzka, an employé of the Kennicott Company, while at work on the stack was killed on the day mentioned. Six days later, on November 20, 1911, Fentzka's widow having waived the right to qualify as administratrix of his estate, the estate was upon her motion referred to Andrew M. Sea, Jr., the public administrator of Jefferson county. On the next day, Sea, as administrator of the estate of Fentzka, instituted this action in the Jefferson circuit court against the Kennicott Company. the Warwick Construction Company, and Jeremiah Sego, the latter company's foreman, to recover damages for the death of Fentzka.

The petition, in respect of the authority of plaintiff administrator, merely recites that Fentzka died on November 14, 1911; that at the time of his death he was domiciled in Jefferson county; and that on November 20, 1911, plaintiff was duly appointed administrator of Fentzka's estate by an order of the Jefferson county court, and that plaintiff had qualified and executed bond as such administrator.

On December 19, 1911, the plaintiff having effected a settlement with the Kennicott Company for the sum of $2,700, dismissed the action as to it.

Defendant the Warwick Construction Company filed a general demurrer to the petition, which was overruled. The issues were then completed by an answer and reply; and the case was passed from time to time until on November 22, 1913, when an amended petition, setting up the fact that on July 21, 1913, the Jefferson county court, by a second reference, had confided to him, as public administrator, the estate of Charles G. Fentzka was tendered and offered to be filed.

The first order of reference to Sea, as public administrator, was of course void because made within three months after Fentzka's death. Jackson's Adm'r v. Asher Coal Co., 153 Ky. 547, 156 S.W. 136; Underwood v. Underwood, 111 Ky. 966, 65 S.W. 130, 23 Ky. Law Rep. 1287; Kentucky Statutes, § 3905.

The court overruled the motion to file this amended petition; and defendants then filed an amended answer, setting up the facts in respect of the first and the second reference of the Fentzka estate to Sea, as public administrator, and that the second reference was not had until after the cause of action for Fentzka's death was barred by the statute of limitations. The issues were then completed by an amended reply, a demurrer to which the court sustained; and, upon the declination of plaintiff to plead further, the petition was dismissed. Plaintiff appeals.

1. Appellant first contends that the question of his want of capacity to sue could be reached only by special demurrer, and that, no special demurrer having been filed, the defect was waived.

Civ. Code Prac. § 92, defines a special demurrer as "an objection to a pleading which shows [subsection 2] that the plaintiff has not legal capacity to sue." But the petition here involved did not show that the plaintiff had not legal capacity to sue. The allegation in respect of his appointment as administrator was such as indicated the appointment of an ordinary administrator, not a reference of the estate to the public administrator; and the want of capacity to sue is not shown upon the face of the petition.

The objection as to want of capacity upon the part of the plaintiff not appearing on the face of the petition, the matter is controlled by section 118, Civil Code, which provides that, where the existence of any of the objections mentioned in section 92 is not shown by the pleading, the question may be raised by answer or other proper pleading. There was therefore no waiver of the defendant in respect of plaintiff's want of capacity to maintain the action.

2. But it is insisted that such liberality in the matter of permitting the amendment of pleadings has been exercised under section 134, Civil Code, that the trial court abused its discretion in declining to permit the filing of the amended petition tendered and offered to be filed on November 22, 1911.

It seems that some time prior to July 21, 1913, it was discovered by plaintiff that the reference of the Fentzka estate to Sea, as public administrator, on November 20, 1911, was void, and for that reason the second reference was made on July 21, 1913.

On November 22, 1913, the amended petition was tendered and offered to be filed. It is styled Andrew M. Sea, Jr., Administrator of the Estate of Charles G. Fentzka, Deceased, Plaintiff, v. Jeremiah Sego and the Warwick Construction Company, Defendants. So far as here pertinent, it contains the following language:

"The plaintiff, Andrew M. Sea, Jr., states that Charles G. Fentzka departed this life intestate on the 14th of November, 1911, and that, at the time of his death, he was a resident of and domiciled in the city of Louisville, Jefferson county, Ky. and that on the 21st day of July, 1913, he was, by an order of the Jefferson county court, appointed by the judge of said court as administrator of the estate of said decedent. * * * Now comes plaintiff and adopts the petition as amended and all subsequent pleadings and steps as his pleading and reaffirms all allegations of said pleadings and prays as therein contained."

The order overruling the motion to file this amended petition does not show who tendered and offered to file it; that is, whether Andrew M. Sea, Jr., as Fentzka's administrator under the first or void reference of the estate to him as public administrator, or Andrew M. Sea, Jr., as Fentzka's administrator under the second or valid reference. But from the language of the pleading there can be no doubt that it was tendered by Sea in the latter capacity; and in such capacity, legally speaking, he was a separate and distinct person from Andrew M. Sea, Jr., administrator acting under the first reference.

The ...