Koontz v. Fleming

• Decision Date: 15 April 1933
• Citation: 65 S.W.2d 821
• Parties: KOONTZ v. FLEMING.
• Court: Tennessee Supreme Court

Page 821

65 S.W.2d 821

KOONTZ v. FLEMING.

Court of Appeals of Tennessee, Eastern Section.

April 15, 1933.

Certiorari Denied by Supreme Court June 24, 1933.

Appeal in Error from Circuit Court, Blount County; Pat Quinn, Judge.

Action by Newton Koontz, administrator, against C. V. Fleming. From an adverse judgment, plaintiff appeals in error.

Affirmed.

Chas. Kitts and W. P. Monroe, both of Maynardville, and R. R. Kramer, of Maryville, for plaintiff in error.

Gamble, Goddard & Gamble, of Maryville, for defendant in error.

R. B. CASSELL, Special Judge.

Suit in the circuit court of Blount county brought by Newton Koontz, administrator of James Koontz, for damages growing out of the death of the said James Koontz, who, it was alleged, died as a result of injuries on November 4, 1930, when struck by an automobile driven by one C. V. Fleming. The declaration was filed in February, 1931, and alleged the appointment of said Newton Koontz as administrator in December, 1930, and that James Koontz left surviving him his widow, Tobitha Koontz, and six children. A plea of not guilty was entered.

In July, 1931, Tobitha Koontz, widow of James Koontz, instituted a suit in the circuit court of Blount county against C. V. Fleming seeking to recover damages for the killing of the said James Koontz, and a declaration was filed in October of the same year. The defendant, C. V. Fleming, filed a plea in abatement to this second case setting out the institution of the former suit and declaring that it was pending undisposed of. To this plea in abatement a demurrer was filed averring that the widow of the deceased had a superior right to institute suit over that of the administrator. No action was taken on this demurrer, but at the same term of court the defendant, Fleming, asked leave of court to file a plea "Puis Darrein Continuance" in the suit instituted by the administrator. Upon granting such leave, said plea was filed setting out that on the 13th day of July, 1931, suit was instituted by the widow to recover damages for the death of James Koontz, and it was averred that the widow had a right of action superior to that of the administrator; hence that it should be abated. The plaintiff demurred to the plea in abatement on the ground that the plea does not offer a legal defense or show any valid reason why the suit of the administrator should be abated and that the defendant was without a right or authority to question the legality of the administrator's suit as the right of action to question the suit of an administrator is lodged alone in the widow of the deceased. It was further alleged in said demurrer to the plea that it was not stated that there had been any adjudication or any obligation imposed upon defendant by reason of the filing of the suit. This demurrer was overruled by the trial judge, and the plaintiff filed a replication, in which, among other things, it was averred that the plea does not offer any legal defense for the dismissal of the administrator's suit, that the defendant could not question the authority of the bringing of the suit as that was a right belonging to the widow, and again that Tobitha Koontz had waived any right that she might have had for the death of said James Koontz. It was further alleged that the plaintiff's right to bring suit was equal and concurrent with the right of the widow to bring suit for the death of her husband, and he, having brought suit, averred that he has priority to maintain the right of action. It was further alleged that said Tobitha Koontz was not a widow of James Koontz in the meaning of the law, because she deserted her husband many years before his death, and had for several years been living in open adultery, and because she had already been convicted for violation of a federal statute. On motion of defendant, the trial judge struck out that portion of the replication referring to the widow's misconduct. Thereupon it is stated that proof was introduced, and upon consideration of the same the court found the issues in favor of the defendant. The plea of abatement was sustained and the suit dismissed. Thereafter the plaintiff, Newton Koontz, administrator, filed his motion for a new trial, and upon the overruling of same prayed and perfected an appeal to this court.

The following errors to the action of the lower court have been assigned:

I. "The Learned Trial Court erred in overruling the plaintiff's Demurrer to the defendant's Plea in Abatement.

"(1) The Plea in Abatement does not set forth a legal defense to this action in as much as it shows on its face a waiver on the part of the widow of her right of action against the defendant, even if such right of action had originally been prior or superior to the right of action of the Administrator.

"(2) The question of whether the Administrator of the intestate's estate or the widow of the intestate shall be entitled to maintain the action for damages against the tort feasor on account of the death of the deceased, is a question which can be raised only by the Administrator or the widow and not by the tort feasor."

II. "The Learned Trial Court erred in striking from the plaintiff's Replication to the defendant's Plea in Abatement, certain sections of said Replication averring that the widow of the plaintiff's intestate had been guilty of such misconduct and of such crimes as to deprive her of any right she might otherwise have had to maintain an action growing out of her husband's death."

III. "There is no material evidence to support the finding of the Trial Court in favor of the defendant on the issues raised in the Plea in Abatement and Replication thereto."

IV. "The Learned Trial Court erred in holding that the defendant's Plea in Abatement was good."

V. "The Learned Trial Court erred in dismissing plaintiff's suit and taxing him with the costs of this cause."

The facts in the case are few, and consist almost wholly of the pleadings filed by the various parties. The pleadings in the case of Newton Koontz v. C. V. Fleming, also the transcript of the record in the case of Bitha Koontz v. C. V. Fleming in the circuit court of Blount county, are filed, and the last record is relied on as evidence in the first case as above set out, it being the case now under investigation.

We have examined the record and feel that counsel for both parties have substantially stated the case, and we could do no better than to copy literally from the brief of counsel as far as it is substantiated by the record.

On December 15, 1930, Newton Koontz, as administrator of James Koontz, deceased, filed suit in the circuit court of Blount county against one C. V. Fleming for personal injuries growing out of the negligent killing of the plaintiff's intestate, one James Koontz, by Fleming on the highway on November 4, 1930. Said suit was for $25,000 damages, and for the use and benefit of the widow and six children of the deceased who were named in the declaration.

A pauper's oath in lieu of bond was filed December 15, 1930, and declaration in the case was filed February 11, 1931.

On February 14, 1931, Fleming filed a plea of not guilty to the declaration, and at the term of court which convened in June following the case was continued, but at the next term in October Fleming filed a plea of "Puis Darrein Continuance," which was in effect a plea in abatement, which plea alleged that, since the 13th day of July, 1931, a suit had been instituted in the circuit court of Blount county by Bertha (later amended to Bitha) Koontz, the widow of the deceased, in which a recovery for damages resulting from the same injury was sought. It was further alleged that the last suit by the widow was prior and superior to that of the plaintiff as administrator, and it was prayed that plaintiff's suit be abated. At a later date, in October, 1931, a demurrer was filed to the plea in abatement assigning the following grounds:

"1. That the plea was no legal defense to the administrator's suit.

"2. That the legality of the administrator's suit could be questioned by the widow only.

"3. That no adjudication of the widow's suit had been made, nor any obligations imposed upon the defendant by reason of the filing of said widow's suit."

The demurrer was at the same term of court overruled, and plaintiff administrator, Newton Koontz, was required to make further defense to the plea in abatement, and this defense set out the following grounds:

"1. That the plea of defendant was defective for the reason that the second suit was instituted by Bertha Koontz, when as a matter of fact there was no such person as Bertha Koontz in the record or otherwise.

"2. That the summons in the suit of Bitha Koontz, the widow, was defective in that it alleged the wrongs were committed in Union County, Tennessee, when as a matter of fact the same were committed in Knox County, Tennessee.

"3. That the plea does not offer a legal defense in that it does not show that the suit of the widow had been adjudicated nor any obligation imposed upon the defendant.

"4. That the question of the legality of the administrator's suit could be questioned only by the widow of the deceased, and that a widow as contemplated is one who has lived with her husband until death and not a woman that has deserted and abandoned her husband.

"5. That the widow had waived her right to bring suit as the widow of James Koontz, deceased, in that she had abandoned her husband some twelve years before his death; that the plaintiff had qualified as administrator of the estate of James Koontz, deceased, on December 13, 1930 without objection from Bitha Koontz the widow, and that he instituted suit on December 15, 1930; that the widow Bitha Koontz was guilty of laches by not bringing her suit before July 13, 1931; that the widow had not objected to the administration of the estate by the plaintiff until February 17, 1931, when she filed her petition in the County Court of Union County, Tennessee,...