Lucas v. Pittman

• Decision Date: 04 February 1892
• Citation: 10 So. 603,94 Ala. 616
• Parties: LUCAS v. PITTMAN.
• Court: Alabama Supreme Court

10 So. 603

94 Ala. 616

LUCAS v. PITTMAN.

Supreme Court of Alabama

February 4, 1892

Appeal from circuit court, Shelby county; LE LOY F. BOX, Judge.

Detinue by Lomax Pittman, as administrator de bonis non of J. W. Hardy, deceased, against Ransom L. Lucas. Judgment for plaintiff, and defendant appeals. Reversed.

The action was brought originally "by Minnie Hardy, as the administratrix of the estate of J. W. Hardy, deceased," against the appellant, R. L. Lucas, for the recovery of certain described personal property. Upon the resignation of Minnie Hardy as administratrix being suggested to the court the cause was revived in the name of Lomax Pittman as the administrator de bonis non. The defendant pleaded "not guilty." The property so sued for originally belonged to the said J. W. Hardy, but the defendant claims that by the following contract, which was dated October 3 1881, the said property was sold to him: "Contract made this day between J. W. Hardy and Ransom Lucas for two (2) horses, known as 'Lightning' and 'Old Joe,' one double harness, and double wagon, for three hundred dollars, same to be paid in work at two dollars and fifty cents per day. This means $2.50 per day for one man and the double team, Ransom Lucas agreeing to work for J. W. Hardy until said debt is paid, only reserving the right to pay cash for balance at any time. Such balance being paid by ransom Lucas, then J. W. Hardy has no further claim on said team. Anything said Lucas may buy from J. W. Hardy is to be sold him cash price, with small allowance for hauling same from Calera." It was recited by an agreed statement of facts that, at the time of and before the execution of said contract, the defendant, Lucas, was employed by said Hardy as teamster, and had charge of the property mentioned in the said contract and which is here sued for, and that after the execution of said contract he continued in possession of said property. It was further shown that the defendant, after the execution of said contract, did hauling for the said J. W Hardy between that time and the time of Hardy's death and after Hardy's death the defendant did some hauling under the contract for Mrs. Minnie J. Hardy, widow of said Hardy, "but on many occasions refused to haul for Mrs. Hardy," The value of the property was shown. It was further shown that after being credited at the rate agreed on in the contract for all hauling done for Hardy and his administratrix, and having been charged for all goods purchased from the said Hardy at the prices named in the said contract, the defendant was indebted to said J. W. Hardy in the sum of nine cents. At the written request of the plaintiff, the court gave the general affirmative charge in his behalf, and to the giving of the general affirmative charge the defendant duly excepted.

W. S. Cary, for appellant.

Lomax Pittman, for appellee.

COLEMAN J.

The suit is in detinue. The caption to the complaint, when filed was, "Minnie Hardy, as the Administratrix of J. W. Hardy, Deceased, Plaintiff, v. Ransom L. Lucas, Defendant." The complaint itself is as follows: "The plaintiff claims of the defendant the following personal property, viz., [describing the property,] with the value of the hire or use thereof during the detention," etc. The proof shows that plaintiff relied upon the title of his intestate for a recovery. The court gave the general affirmative charge in favor of the plaintiff. The first question presented is to determine whether the complaint sets forth a cause of action in the name of Minnie Hardy individually, or in her representative capacity. In the case of Gibson v. Land, 27 Ala. 117, the plaintiff, Land, styled himself in the caption or commencement of the complaint "as trustee for his wife, Elizabeth Land," and it was held these words were mere descriptions personal, and the action was in his individual capacity. In the case of Crimm v. Crawford, 29 Ala. 623, the caption was, "Crawford, Admr. de bonis non of Nancy Cullens, v. Thomas Crimm." The complaint itself proceeded as follows: "The plaintiff, as administrator de bonis non of Nancy Cullens, deceased, claims," etc.; and the court held that the complaint sufficiently showed the action was by plaintiff in his representative character, and authorized plaintiff to recover on the title of his intestate. Referring to the case quoted above from 27 Ala., the court held that, since the adoption of the Code simplifying the pleadings, "all averments as to title are dispensed with." In Graham v. Gunn, 45 Ala. 577, in the caption the plaintiff styled himself "as admr. of Moses Green," and averred in the declaration that the note sued on was assets of the estate of his intestate. The court held that the suit was in his representative capacity. In the case of Montgomery Co. v. Barber, 45 Ala. 237, the caption was, "Robert Barber, as Sheriff of Montgomery County, v. Montgomery County," etc. The complaint itself proceeded as follows: "The plaintiff, as sheriff, claims of the defendant," etc. The court held that the words "as sheriff," in the caption and in the complaint both, were mere surplusage, and that plaintiff was entitled to recover upon proof of an indebtedness due him individually. In Wright v. Rice, 56 Ala. 44, the summons and complaint were in the name of John P. Rice, "who sues by the name and description of administrator of H. Pippen, deceased." The court held that John P. Rice individually was plaintiff, and all else mere surplusage; citing Agee v. Williams, 27 Ala. 644. There seems to be some confusion in the authorities as to what is necessary to distinguish when an action is brought in the name of the individual and when in his representative character. We hold the proper rule to be that when the plaintiff's name appears in the caption, followed by the words "administrator," "guardian," and there is no statement of averment in the body of the complaint to indicate differently, the words "administrator," "guardian," are all mere words of description personal; that if the name of the plaintiff in the caption to the complaint is followed by the use of such words as "as administrator," or "as guardian," or "who sues as," or words of equivalent meaning, these words are sufficient to show that the plaintiff sues in a representative capacity when the...