Fetty v. Carroll, C. C. No. 575

Decision Date23 March 1937
Docket NumberC. C. No. 575
CourtWest Virginia Supreme Court
PartiesFETTY . v. CARROLL et al.

190 S.E. 683

FETTY .
v.
CARROLL et al.

C. C. No. 575

Supreme Court of Appeals of West Virginia.

March 23, 1937.


.

Syllabus by the Court.

A valid settlement with the sole distributees of a decedent for his wrongful death may be introduced in defense of the tort-feasor in an action of trespass on the case against him by decedent's administrator to recover damages for such death.

[190 S.E. 684]

Certified from Circuit Court, Kanawha County.

Action by E. H. Carroll, administrator, etc., and others against Harold Fetty, wherein the trial court excluded evidence of a valid settlement between the defendant and the sole distributees of decedent, and the case was certified to the Supreme Court of Appeals.

Ruling reversed.

Rummel, Blagg & Stone and Maurice J. Crocker, all of Charleston, for plaintiff.

E. E. Robertson and Lillian S. Robertson, both of Charleston, for defendants.

HATCHER, Judge.

This certificate presents the question, May a valid settlement with the sole distributees of a decedent for his wrongful death be introduced in defense of the tort-feasor in an action of trespass on the case against him by decedent's administrator to recover damages for such death? The question arises on a bill of the tortfeasor to enjoin the law action. The trial court answered the question in the negative.

Under Code, 55-7-6, an action for wrongful death is for the exclusive benefit of the decedent's next of kin; and while the decedent's administrator alone may sue, his relation to any fund recovered is not that of decedent's representative, but that of trustee for the next of kin. Richards v. Riverside Iron Works, 56 W.Va. 510, 513, 49 S.E. 437. Statutes similar to ours in other states have received a like construction. See White v. Ward, 157 Ala. 345, 350, 47 So. 166, 18 L.R.A.(N.S.) 568; McKeigue v. Chicago & N. W. R. Co., 130 Wis. 543, 546, 110 N. W. 384, 11 L.R.A.(N.S.) 148, 118 Am.St. Rep. 1038, 10 Ann.Cas. 554. Since the administrator has the right of action only for the benefit of the distributees, he is in legal effect their representative. It would therefore seem the thing to do to 'admit any defense against him which would be a defense against them. The action of trespass on the case inherently permits a defense of that kind. The action is founded on "mere justice and conscience, " is "in the nature of a bill in equity, " and, consequently, is subject to any defense which "in equity and good conscience" would preclude a recovery. Ridgeley v. West Fairmont, 46 W.Va. 445, 33...

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