Kerr v. Basham, 7578

• Decision Date: 23 February 1934
• Docket Number: 7578
• Parties: C.R. KERR, Administrator of the Estate of Julius M. Bennett, Deceased, Respondent, v. CELIA BASHAM, Administratrix of the Estate of G.E. Basham, Deceased, Appellant.
• Court: South Dakota Supreme Court

62 S.D. 301

252 N.W. 853

C.R. KERR, Administrator of the Estate of Julius M. Bennett, Deceased, Respondent,

v.

CELIA BASHAM, Administratrix of the Estate of G.E. Basham, Deceased, Appellant. South Dakota Supreme Court Appeal from Circuit Court, Sanborn County, SD Hon. R.C. Bakewell, Judge #7578—Affirmed Hitchcock & Sickel, Mitchell, SD L.L. Lawson, Woonsocket, SD Attorneys for Appellant. R.B. Palmer, Woonsocket, SD Berry & Berry, Sioux City, IA Attorneys for Respondent. Opinion Filed Feb 23, 1934

CAMPBELL, Judge.

In September, 1932, an automobile driven by Julius M. Bennett, a resident of Woodbury County, Iowa, collided with an automobile driven by G.E. Basham, a resident of Sanborn County, S.D., upon the public highways of this state in said Sanborn County. As a result of said collision, both Bennett and Basham were almost instantly killed. Plaintiff, Kerr, having been duly appointed administrator of the Bennett estate by the district court of Woodbury County, Iowa, and having qualified in such court as such administrator, and having received letters of administration out of said court, instituted the present action to recover damages for the death of Bennett against defendant Celia Basham, the duly appointed qualified, and acting administratrix of the Basham estate named as such by decree of the county court of Sanborn County, S.D. The action, of course, is predicated upon sections 2929-2931, R.C. 1919, relating to death by wrongful act. By demurrer to the complaint, defendant has raised two points First, that plaintiff, a foreign administrator, cannot maintain the action in the courts of this state; and, second, that the complaint is fatally defective because of failure to allege that Bennett died prior to the death of Basham.

The learned circuit judge overruled defendant’s demurrer, and she has now appealed, and we will consider the two matters above mentioned in the order stated.

On the first proposition, our statute affirmatively provides that the action for the death shall lie either against the wrongdoer or his administrator or executor as such, and that it “shall be brought in the name of the personal representative of the deceased person,” and shall be “for the exclusive benefit of the wife or husband and children, or if there be neither of them then of the parents and next of kin of the person whose death shall be so caused.” The statute does not affirmatively require, and does not seem necessarily to contemplate, that the “personal representative” in whose name the action is to be brought shall be the appointee of a South Dakota court. Indeed, a portion of the statute (section 2931) appears to contemplate that upon occasion the action may be brought by a personal representative of a decedent who was not appointed in this state, for its says: “Such personal representative, if he was appointed in this state, may, with the consent of the court making such appointment ... settle with the defendant. ... “Bennett residing at the time of his death in Woodbury County, Iowa, it can hardly be questioned but that an administrator named by the proper court of Woodbury County is “the personal representative of the deceased person.” The claim for the wrongful death is not an asset of the Bennett estate, nor subject to be reached by Bennett’s creditors. The Iowa administrator does not act in this case in any strict sense qua administrator or virtute officii, but because, being the personal representative of Bennett, he is the person designated by our statute as the person in whose name the damages for the wrongful death shall be recovered. If he does recover, the proceeds of his judgment will not become a part of the assets of the Bennett estate in Woodbury County, Iowa, but plaintiff will take them “merely as a trustee, for the benefit of...