Howe v. Mohl

• Decision Date: 28 January 1950
• Docket Number: No. 37651,37651
• Citation: 214 P.2d 298,168 Kan. 445
• Parties: HOWE et al. v. MOHL et al.
• Court: Kansas Supreme Court

Page 298

214 P.2d 298

168 Kan. 445

HOWE et al. v. MOHL et al.

No. 37651.

Supreme Court of Kansas.

Jan. 28, 1950.

Syllabus by the Court

While being driven by its owner an automobile was damaged in a collision with a truck belonging to one of the defendants. The owner died a few days later as a result of injuries received in the collision. He died intestate, leaving his widow and three minor children surviving him as his only heirs at law. No administration was had on his estate. More than one year after his death the widow, in her individual capacity, and the minors, by her as their mother, natural guardian and next friend brought suit to recover for the damage to the automobile, alleging negligence on the part of one of the defendants. Demurrers to the petition were sustained on the ground that plaintiffs had no legal capacity to sue. Held:

(1) The cause of action for damage to the automobile survived the death of the owner, but it survived to his personal representative and not to his heirs, and the latter cannot maintain the action.

(2) The demurrers were properly sustained.

Harold W. McCombs, of Russell, argued the cause and was on the briefs for appellants.

Jerry E. Driscoll, of Russell, argued the cause, and Delmas L. Haney and Benedict P. Cruise, both of Hays, and Richard M. Driscoll, of Russell, were with him on the briefs, for appellees.

PRICF, Justice.

The question we have here pertains to the right of a widow and minor children of a deceased owner of a damaged automobile to bring an action in their individual capacities to recover for the damage done to the automobile in a collision alleged to have been caused by the negligence of one of the defendants.

On the evening of November 26, 1946, in the outskirts of the city of Russell, one Fowler, a resident of Russell county, while driving his own automobile, crashed into a truck owned and operated by defendant Mohl which at the time was being used to move a house down the highway. Fowler's car was demolished and he sustained injuries from which he died a few days later. He died intestate, leaving his widow, Alice, and three minor children surviving him as his only heirs at law. No administration was had on his estate and no legal guardian was appointed for the person or estate of the minors.

In January, 1948, more than one year after his death, his widow, in her individual capacity, and the minors, by her as their mother, natural guardian and next friend, brought suit against defendant Mohl and his insurance carrier to recover damages for the destruction of decedent's automobile, alleging certain acts of negligence on the part of Mohl, which for our purposes, however, are immaterial and will not be narrated.

Following the lower court's order sustaining defendants' motion to strike certain allegations of the petition, each of the defendant filed a separate demurrer on the ground, among others: '5. That the plaintiffs have no legal capacity to sue; * * *.'

The demurrers were sustained on this ground--the lower court being of the opinion that while there was no question the cause of action survived--yet it survived to the personal representative of the deceased and not to his heirs or distributees.

From that rling and from the ruling on the motion to strike the widow and minor children have appealed, and the only question is--to whom did the cause of action survive--that is, who is entitled to bring this lawsuit?

Appellants' attack upon the lower court's ruling is based upon the proposition that:

1. The cause of action survived the death of the owner, citing G.S.1945 Supp. 60-3201.

2. In any event the automobile passed to them as exempt property under the provisions of G.S.1945 Supp. 59-403, and an administrator, if one had been appointed, would have had no right of ownership in it.

3. More than one year had elapsed since the death of decedent, hence no claims could be filed against his estate and there was no necessity for administration thereon.

4. Under the provisions of G.S.1945 Supp. 59-2250, the district court had power and jurisdiction to determine descent (and therefore ownership of the automobile in question) in any proper proceeding; and

5. Therefore they are the real parties in interest and are entitled to bring the action

By the provisions of G.S.1945 Supp. 60-3201, there can be no question but that the cause of action survived the death of the decedent. This section in part provides: 'In addition to the causes of action which survive at common law, causes of action for * * * an injury to * * * personal estate, * * * shall also survive; and the action may be brought notwithstanding the death of the person entitled or liable to the same.' See also the case of Wright v. Smith, 136 Kan. 205, 14 P.2d 640, in which it was specifically held that a right of action for causing the destruction of an automobile survives the death of its owner and likewise survives the death of the person causing its destruction.

The petition alleged the automobile to be the only automobile owned by decedent at the time of his death, and appellants' second point is based upon the provisions of G.S.1945 Supp. 59-403, having to do with homestead and family allowance rights, the material portion of which reads: 'When a resident of the state dies, testate or intestate, the surviving spouse shall be allowed, for the benefit of such spouse and the decedent's minor children * * * from the personal property of which the decedent was possessed or to which he was entitled at the time of death, the following: * * * one...