Reilly's Estate, In re, 6199

• Decision Date: 25 November 1957
• Docket Number: No. 6199,6199
• Parties: In the Matter of the ESTATE of Robert B. REILLY, Deceased. In the Matter of the ESTATE of Ivan R. SPONG, Deceased; Rolando J. Matteucci, Administrator, Appellant. Dale B. WALKER, Administrator of the Estate of Robert B. Reilly, Deceased, Plaintiff-Appellant, v. Rolando J. MATTEUCCI, Administrator of the Estate of Ivan R. Spong, Deceased, Defendant-Appellee, and Cross-Appellant.
• Court: New Mexico Supreme Court

Page 1069

319 P.2d 1069

63 N.M. 352

In the Matter of the ESTATE of Robert B. REILLY, Deceased.

In the Matter of the ESTATE of Ivan R. SPONG, Deceased;

Rolando J. Matteucci, Administrator, Appellant.

Dale B. WALKER, Administrator of the Estate of Robert B.

Reilly, Deceased, Plaintiff-Appellant, v. Rolando J. MATTEUCCI, Administrator of the Estate of Ivan R.

Spong, Deceased, Defendant-Appellee, and Cross-Appellant.

No. 6199.

Supreme Court of New Mexico.

Nov. 25, 1957.

Rehearing Denied Jan. 24, 1958.

Keleher & McLeod, Nordhaus & Moses, Albuquerque, for appellant.

Rodey, Dickason, Sloan, Mims & Akin, Albuquerque, for appellee.

FRED J. FEDERICI, District Judge.

The first point presented in this consolidated appeal is whether or not the Probate Court of Bernalillo County had jurisdiction to appoint an administrator for the estate of one Ivan R. Spong, who died in Bernalillo County, New Mexico on February 19, 1955 in an airplane crash while piloting the aircraft for Trans World Airlines, Inc., who was the common carrier, and said airplane was operating on a regular schedule transporting paying passengers. The airplane was owned by Trans World Airlines, Inc., a foreign corporation registered in New Mexico. At the time of his said death the said Ivan R. Spong was a non-resident of the State of New Mexico, and had no mansion, house, or place of abode in the State of New Mexico, nor was he possessed of any lands in the State of New Mexico, nor did he leave any personal estate at the scene of the airplane crash in the Sandia Mountains in Bernalillo County, New Mexico, or elsewhere in said County or State. However, at the time of death the said Ivan R. Spong was covered under a certain policy of casualty insurance written in the name of Great American Indemnity Company, which policy was purchased by and carried by the said Trans World Airlines Inc., under the terms of which the Great American Indemnity Company agreed to exonerate and indemnify the said Ivan R. Spong for any judgment rendered against him by reason of his negligent operation of an airplane while in the employ of the said Trans World Airlines, Inc. Under the terms of said policy issued to Trans World Airlines, Inc. the said Great American Indemnity Company agreed to defend said Ivan R. Spong, or his administrator, in any action for damages resulting from negligent operation of aircraft by said Ivan R. Spong in the employ of said Trans World Airlines, Inc., which might be brought in the Courts of the State of New Mexico against the said Ivan R. Spong, or his administrator. On the date of appointment of the New Mexico administrator of the estate of Ivan R. Spong, more than twenty days had elapsed since the death of Ivan R. Spong, and on said date no administrator of the estate of Ivan R. Spong had been initiated in the State of New Mexico or elsewhere. Ivan R. Spong died intestate. The administrator appointed in Bernalillo County was and is a resident of Albuquerque, Bernalillo County, New Mexico, and is otherwise qualified to act in that capacity. The widow of decedent, Ivan R. Spong, was appointed administratrix of Ivan R. Spong's estate by the Probate Court of Johnson County, Kansas, the residence of the deceased prior to his death, which appointment was subsequent to the appointment of the New Mexico administrator in Bernalillo County.

Obviously the New Mexico administrator was appointed patently for the purpose of bringing suit against the pilot's estate by the administrator, or administrators, of a passenger, or passengers, of the airplane, who likewise died in the same airplane crash with Pilot Ivan R. Spong, said action or actions being suits for damages resulting from the alleged negligent operation of the aircraft by said Ivan R. Spong as pilot thereof.

This Court in construing Sec. 31-1-3, N.M.S.A. 1953 Compilation in Miller v. Stiff, 62 N.M. 383, 310 P.2d 1039, 1041, sustained the jurisdiction of appointment of an administrator under similar circumstances in Chaves County, and held that the right of indemnity under a liability policy issued to a non-resident deceased motorist constituted an asset of the estate of said deceased motorist and was sufficient to support the appointment of an administrator for the estate of the motorist in the county in which he died following an automobile collision, even though no judgment had been recovered against the motorist's estate so as to make the right of indemnity a debt. The Supreme Court concluded:

'Our statute by its most literal reading does not seem to make the existence of assets, in the sense urged by the defendant, a jurisdictional requirement under the present circumstances; but if assets are required under reasonable construction, then an asset does exist in this state.'

Accordingly the Probate Court of Bernalillo County had jurisdiction to appoint an administrator for the estate of Ivan R. Spong, deceased, under the circumstances in this case.

After the appointment of the administrator in the Probate Court of Bernalillo County, an action was filed in the State District Court of Bernalillo County by the administrator of the estate of one of the deceased passengers of the crashed airplane against the administrator of the estate of the Pilot of said airplane, Ivan R. Spong, predicated upon the alleged negligent operation of the airplane by the pilot Spong. The action was filed by the plaintiff therein under the general New Mexico wrongful death statute, Sec. 22-20-1, N.M.S.A. 1953 Compilation, which statute provides as follows:

'22-20-1. Death by wrongful act or neglect--Liability in damages.--Whenever the death of a person shall be caused by the wrongful act, neglect or default of another, although such death shall have been caused under such circumstances as amount in law to a felony, and the act, or neglect, or default, is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which, would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured.'

It will be noted that the foregoing statute sets out no limitation of liability.

To this action a legal defense was interposed that in such a case an action could only be filed under Sec. 22-20-4, N.M.S.A. 1953 Compilation which at the time petitinent to this action provided as follows:

'22-20-4. Death caused by railroad, stage coach or public conveyance--Action for damages--Defense.--Whenever any person shall die from any injury resulting from, or occasioned by the negligence, unskillfulness or criminal intent of any officer, agent, servant or employee, whilst running, conducting or managing any locomotive, car, or train of cars, or of any driver of any state (stage) coach or other public conveyance, while in charge of the same as driver; and when any passenger shall die from injury resulting from, or occasioned by any defect or insufficiency in any railroad, or any part thereof, or in any locomotive or car, or in any stage coach, or other public conveyance, the corporation, individual or individuals, in whose employ any such officer, agent, servant, employee, engineer or driver, shall be at the time such injury was committed, or who owns any such railroad, locomotive, car, stage coach, or other public conveyance, at the time any injury is received, resulting from, or occasioned...