Henkel v. Hood

• Decision Date: 08 March 1945
• Docket Number: No. 4834.,4834.
• Citation: 49 N.M. 45,156 P.2d 790
• Parties: HENKELv.HOOD et al. (CAIN et al., Third Party Defendants).
• Court: New Mexico Supreme Court

49 N.M. 45

156 P.2d 790

HENKEL

v.HOOD et al. (CAIN et al., Third Party Defendants).

No. 4834.

Supreme Court of New Mexico.

March 8, 1945.

Appeal from District Court, Dona Ana County; Charles H. Fowler, Judge.

Action by J. R. Henkel, administrator of the estate of Madel T. Henkel, deceased, against Allan T. Hood and G. R. Alexander for the wrongful death of deceased allegedly resulting from the negligence of defendants in parking a truck on a highway at night, wherein Benjamin Cain, doing business as Cain's Truck Lines, and W. P. Thornley were made third party defendants. From a judgment dismissing the cause of action on ground that plaintiff was not entitled to maintain the action, plaintiff appeals.

Reversed and remanded with directions.

A community administrator, appointed in Texas and having limited powers under Texas law, qualified as a “personal representative” authorized to maintain action for wrongful death under New Mexico statute. 1941 Comp. §§ 24-101, 24-103; Rev.St.Tex.1925, arts. 3664 to 3669.

[156 P.2d 790 , 49 N.M. 45]

Holt & Holt, of Las Cruces, for appellant.

Whatley & Garland, of Las Cruces, for appellees Hood and Alexander.J. B. Newell, of Las Cruces, and Jones, Hardie, Grambling & Howell, of El Paso, Tex., for appellees Cain and Thornley.

MABRY, Justice.

This is an appeal taken by plaintiff below from a judgment dismissing the cause of action upon the ground that the party suing was not entitled to maintain the action.

The action was brought under 1941 Comp. § 24-101, for the alleged wrongful death of Madel T. Henkel, wife of the plaintiff. It was alleged in the complaint that the death arose through the negligence of defendants in parking a gasoline transport truck on a highway at night without setting out lighting or signal devices. The facts in the case and the character of the pleadings need not be particularly noticed. The decision must turn upon the question whether plaintiff is the proper party to sue.

Section 24-103 provides that: ‘Every such action as mentioned in section 1821 (§ 24-101) shall be brought by and in the name or names of the personal representative or representatives of such deceased person * * *. The proceeds of any judgment obtained in any such action shall not be liable for any debt of the deceased: Provided, he or she shall have left a husband, wife, child, father, mother, brother, sister, or child or children of the deceased child, but shall be distributed as follows: * * *’. (Emphasis ours.)

The decision in this case turns upon the single point as to what construction shall be given the above italicized language of Section 24-103. Plaintiff, the husband of the deceased, was, after the death of his wife, appointed in Texas, the state of his residence, as the ‘community administrator’, as distinguished from a general administrator, common to our state and to most other states.

It appears that under the Texas statutes, Art. 3664 to 3669, incl., of the Revised Civil Statutes of Texas, 1925 Rev. a unique provision is found for both a community administrator, or community survivor, as well as, under some circumstances, a general administrator, whose functions, since they relate also to the administration of the separate estate, differ. It appears that the authority of the community administrator as distinguished from that of the general administrator or executor is limited to the control, management, and disposition of the community property, including the right to sue with regard to the same, in the same manner he could have acted during the life of the deceased; whereas the authority of the general administrator, or executor, of the estate of the deceased may, under the Texas act, extend to not only the community property, where there is no ‘community administrator’, but to the separate estate of the deceased as well.

It is the contention of defendants, not that a general administrator, or executor, appointed under the Texas statute would be an improper party plaintiff to bring the suit in question, but that plaintiff, appointed only as the community administrator, would not have such authority. Their contention is that we must look to the Texas statute for a definition of the duties of the plaintiff under his appointment, in order to determine whether he comes within the New Mexico statutory definition of ‘personal representative’ of the deceased. Whereas it is the contention of plaintiff that the Texas law governs only to the extent that it may be looked to to determine whether plaintiff, relying upon his appointment in that state as a community administrator, comes within the term ‘personal representative’, and that we do not inquire further; i. e., it does not become important to ascertain the exact limitations of authority under the Texas statute of such administrator.

Since the character of plaintiff as a personal representative under our statute is entirely foreign to and unconnected with his character as estate administrator, whatever authority he might have as such administrator is unimportant; and, since his authority to bring and maintain the action flows from the wrongful death statute itself and not from the probate, or estate, laws of this or any other state, it is incorrect to say that his power to sue in this connection should be tested by his authority to administer generally the estate of the deceased in the state issuing the letters.

It cannot be said that since New Mexico does not provide, as does Texas, for a community administrator, we must look to the latter state to determine what authority plaintiff had generally to administer the estate there. We are concerned merely with determining whether plaintiff is, within the contemplation of the New Mexico statute, such a ‘personal representative’ as might maintain the action at bar.

And, in this connection, it is well to notice how courts hold, with almost complete unanimity, that the fact that some statutes name the administrator or executor of the estate of the deceased as the person to sue is not to say that the recovery had belongs to the estate, is to be in any way involved in the estate, as such, is answerable for its debts, Sec. 24-103 supra, or must, in any sense, be accounted for to the estate by such a representative, absent a situation calling for escheat to the state, one not present here.

The suit, under this act, clearly, has no relation to the estate. It is incidental that a ‘personal representative’ (usually defined to be an executor or administrator, in one of the classes) is named to bring suit. It is not because this would fall within his duties as such, but because someone must be named and our Legislature has fixed upon such a person as the one to sue.

As was said in Wilson v. Pollard, 190 Ga. 74, 8 S.E.2d 380, 382: ‘In determining whether or not the word ‘administrator’ in the Code, § 105-1309, embraces a ‘temporary administrator,’ it is important to consider the legislative purpose in enacting the law. No special rights are conferred upon the administrator or executor, nor is there imposed upon such administrator or executor a single duty or responsibility to be performed in a representative capacity. The sole purpose of the legislature in using the words ‘administrator or executor’ is to designate an agency for the prosecution of the suit thereby provided for. Manifestly there is no intention to involve the estate represented by such administrator or executor in the suit provided for in this section. Any recovery in such a suit is the property of the relative for whose benefit the suit is brought, and it at no time constitutes a part of the estate of the decedent. * * * The suit here involved places no responsible duties on the administrator, but simply identifies a person in whose name the suit must be maintained for the benefit of those entitled to recover under the act. * * * The word ‘administrator’ as used in the statute is unrestricted and unlimited. It necessarily follows that any administrator is included, and therefore that a temporary administrator is a proper party to bring suit under the Code, § 105-1309.' (Emphasis ours.)

Applying the doctrine above announced, and which seems to be in harmony with the authorities, see 25 C.J.S., Death, page 1105, § 33, and page 1169, § 58, subsec. a, citing cases as authority for the statement that the personal representative is a mere formal party, a statutory trustee as it were; Dennick v. Central R. Co. of New Jersey, 103 U.S. 11, 26 L.Ed. 439; Chicago, B. & Q. R. Co. v. Wells-Dickey Trust Co., 275 U.S. 161, 48 S.Ct. 73, 72 L.Ed. 216, 59 A.L.R. 758; Anderson v. Louisville & N. R. Co., 6 Cir., 210 F. 689, 127 C.C.A. 277.

The term ‘personal representative’ is used simply to designate the agency, the trustee, the person, who may prosecute this particular character of statutory action. The important thing is that the action shall not fail because of the absence of a party capable of suing. As was said in the case of Chicago, R. I. & P. R. Co. v. Schendel, 270 U.S. 611, 46 S.Ct. 420, 423, 70 L.Ed. 757, 53 A.L.R. 1265, in discussing whether the widow, or the personal representative, was the proper party to be impleaded: ‘The essential consideration is that it is the right of the widow, and of no one else, which was presented and adjudicated in both courts.'

‘It is not difficult to suggest reasons why the term ‘personal representative,’ as used in this statute, should not be limited so as to exclude special administrators. The action given by the statute must be brought within two years next after the wrongful act or omission, and it might well happen in some cases that the death of the decedent would not result until nearly two years after the occurrence of the act or omission causing his death, and too late to secure the appointment of a general administrator before the action would be barred. In other cases there might be protracted litigation over the appointment of an executor or...