Pearson v. Anthony

• Decision Date: 03 April 1934
• Docket Number: No. 42229.,42229.
• Citation: 254 N.W. 10,218 Iowa 697
• Parties: PEARSON v. ANTHONY.
• Court: Iowa Supreme Court

218 Iowa 697

254 N.W. 10

PEARSON

v.ANTHONY.

No. 42229.

Supreme Court of Iowa.

April 3, 1934.

Appeal from District Court, Woodbury County; F. H. Rice, Judge.

This action was brought to recover damages for the wrongful death of plaintiff's intestate alleged to be due to a collision between automobiles. From a judgment on a verdict in favor of plaintiff, the defendant appeals.

Reversed and remanded, with directions.

Gill & Gill, of Sioux City, for appellant.

Carloz W. Goltz and R. A. Oliver, both of Sioux City, for appellee.

CLAUSSEN, Chief Justice.

On January 27, 1931, Max Pearson was injured as a result of a collision which took place between the automobile in which he was riding and a car driven by an employee of defendant. It is alleged that Pearson died during November of 1931 as a result of the injuries received in the collision. On the 9th day of February, 1932, a petition was filed in the Woodbury district court entitled “Helen Pearson, Administratrix of the Estate of Max Pearson, Deceased, Plaintiff, vs. L. D. Anthony, Doing Business Under the Name and Style of L. D. Anthony Produce Company, Defendant.” In the petition it is alleged that “the plaintiff is the duly acting and qualified administratrix of the estate of Max Pearson, deceased.” On February 25, 1932, the defendant filed a motion to strike certain allegations of the petition. On August 29, 1932, an amended and substituted petition was filed, in the opening paragraph of which the motion to strike was confessed and the statement made that the amended and substituted petition was filed in compliance with the confessed motion to strike. On September 21, 1932, defendant filed an answer to the amended and substituted petition, the first paragraph of which is as follows: “Defendant admits that he is a resident of Woodbury County, Iowa, but expressly denies that Helen Pearson is administratrix of the estate of Max Pearson, deceased, who died on or about the 20th day of November, 1931, and states the fact to be that no administrator has been appointed of said estate.”

On the 17th day of February, 1933, more than two years after the accident, letters of administration were granted in the Woodbury district court to Helen Pearson on the estate of Max Pearson, deceased. The record does not disclose the grant by any other court of letters of administration to Helen Pearson on her husband's estate, or, for that matter, to any other person. On February 18, 1933, the administratrix filed an application in the estate matter stating, among other things, that on the 9th day of February, 1932, the petitioner instituted an action as administratrix of the estate of Max Pearson, deceased, against L. D. Anthony to recover damages for the wrongful death of her decedent; that at the time said action was commenced petitioner had not been appointed administratrix of said estate; that, when she commenced said suit, she expected to secure her appointment as administratrix, but, because of lack of funds, had not been able to promptly procure her appointment; that said suit was commenced for the benefit of the estate, and that the ratification of the commencement of the suit and its prosecution of judgment would be for the best interest of the estate, and asking that her acts in commencing the suit be ratified, confirmed, and adopted, and her acts be validated as of the dates performed, and that the administratrix be directed to prosecute the suit to judgment. On February 18, 1933, an order was made by the court as prayed in the application. These proceedings were had in the estate matter, and, so far as defendant is concerned, were ex parte. None of these matters were pleaded in this suit.

On February 20, 1933, defendant filed an amendment to his answer alleging, among other things, that any cause of action on account of injuries sustained in the collision accrued on the 27th day of January, 1931, and was barred by the statute of limitations on the 27th day of January, 1933; that at the time of the commencement of the action Helen Pearson was not administratrix of the estate; that no personal representative of the estate was appointed until after the cause of action had been barred by the statute of limitations; that plaintiff, at the time of the commencement of the suit, had no right or capacity to sue or commence the alleged action; and that the alleged cause of action became barred by the statute of limitations on January 28, 1933.

The case came on for trial on February 20, 1933. At the commencement of the trial, defendant objected to proceedings being had on account of the lack of capacity of Helen Pearson to institute the suit and on account of the action being barred by the statute of limitations prior to the appointment of a personal representative of decedent. Such objections were overruled, and the cause proceeded to trial. Upon the trial of the case, the facts in relation to the commencement of the suit and the probate proceedings were developed as above set forth. In addition to such matters, evidence was introduced to prove the occurrence of the collision and the death of decedent and such matters. At the close of plaintiff's case, and again at the close of the entire case, defendant moved for a directed verdict upon grounds suggested by the above statement of facts as well as other grounds. The motion was overruled. The verdict of the jury was for plaintiff. A motion for a new trial and exceptions to instructions were overruled. Judgment was entered against defendant upon the verdict. Defendant appeals from the judgment and all rulings and orders adverse to him made in the progress of the suit.

Appellant assigns fifteen errors. We have set forth only so much of the record as is essential to the disposition of one group of assigned errors which is decisive of the case. This group questions the right of the administratrix to prosecute this action to judgment in view of the facts above set forth.

[1][2] It is an elementary rule of law that a party plaintiff must have capacity to sue in order to commence and maintain an action. 47 C. J. p. 18, § 15 et seq. This action was commenced by Helen Pearson in the purported capacity of administratrix of the estate of Max Pearson, deceased. The action is so entitled, and the allegations of the petition and amended and substituted petition are that Helen Pearson was such administratrix. It was pleaded early in the progress of the case by the defendant and conclusively established by the record that Helen Pearson was not administratrix. The record establishes without dispute, not only that Helen Pearson was not administratrix of the estate at the time she commenced the suit, but that she was not appointed administratrix until after the statutory period of limitations had expired. The trial established beyond all doubt that Helen Pearson did not have the capacity to sue claimed by her or which was essential to the maintenance of the suit. For a certainty, such lack of capacity would have been fatal if the case were not complicated by the probate proceedings above set forth.

None of the probate proceedings had shortly before the trial of the case were pleaded in behalf of plaintiff. No proceedings were taken to amend the petition or substitute the administratrix as a party in the suit brought without capacity to sue. It is the theory of Helen Pearson, administratrix, that in virtue of the orders made in the probate proceedings the acts of Helen Pearson, long before she was...