State ex rel. Baltimore & O. R. Co. v. Daugherty

• Decision Date: 16 September 1953
• Docket Number: Nos. 10498,10499,s. 10498
• Citation: 138 W.Va. 144,77 S.E.2d 338
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. BALTIMORE & O. R. CO. v. DAUGHERTY et al. (two cases).

Page 338

77 S.E.2d 338

138 W.Va. 144

STATE ex rel. BALTIMORE & O. R. CO. v. DAUGHERTY et al. (two cases).

Nos. 10498, 10499.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 20, 1953.

Decided March 24, 1953.

Dissenting Opinion Sept. 16, 1953.

Syllabus by the Court

The proper assets of the estate of a decedent are not liable for court costs incurred by the administrator in an unsuccessful action for death of the decedent by wrongful act, neglect or default, under Code, 55-7-5, 6. The administrator is bound only in his private capacity.

George S. Wallace, George S. Wallace, Jr., Huntington, W. Va., for plaintiffs in error.

Daugherty & Daugherty, Huntington, for defendants in error.

LOVINS, Judge.

These actions of debt were brought to this court by writs of error to judgments of the Circuit Court of Cabell County. The State of West Virginia, who sued for the use and benefit of the Baltimore and Ohio Railroad Company, a corporation, brought two actions of debt, one against Duncan W. Daughterty, administrator of the estate of Josephine M. Stringer, and the Aetna Casualty and Surety Company, a corporation, the surety on such administrator's bond, and the other against Duncan W. Daugherty, administrator of the estate of Jesse P. Stringer and theAetna Casualty and Surety Company, the surety on his bond as such administrator.

The object of these actions of debt is to recover from the administrator two judgments rendered by the Circuit Court of Cabell County for court costs awarded in two certain actions hereinafter mentioned.

The trial court sustained demurrers to the declarations herein with leave to the plaintiff to amend. Upon the plaintiffs declining to amend the declarations, the actions were dismissed. Plaintiffs prosecute this writ of error.

Duncan W. Daugherty was appointed administrator of the estate of Josephine M. Stringer and Jesse P. Stringer by the County Court of Cabell County, West Virginia, on the 22nd day of March, 1948. Two bonds were given by such administrator, each in the penal sum of $5,000.

After the qualification of such administrator, he employed an attorney to bring two actions against the Baltimore and Ohio Railroad Company for allegedly causing the death of his decedents by wrongful act.

The decedents lost their lives in a collision at a grade crossing between an automobile in which they were riding and one of the trains of the Baltimore and Ohio Railroad Company. For additional facts concerning such accident, see opinion of this court in the two cases of Daugherty, Administrator v. Baltimore & Railroad Co., 135 W.Va. 688, 64 S.E.2d 231.

The pertinent facts which we have been able to glean from the merger record before us are as follows: Daugherty, administrator of Josephine M. Stringer, recovered a jury verdict in the amount of $3,600, and a judgment was entered thereon by the Circuit Court of Cabell County on the 3rd day of January, 1950. In the case of Daugherty, administrator of Jesse P. Stringer, the plaintiff was awarded a jury verdict in the amount of $1,000, and judgment was entered thereon on the 11th day of March, 1950.

On petition of the Baltimore and Ohio Railroad Company, a writ of error and supersedeas to each of the judgments above was awarded by this court. Upon the hearing, the cases were consolidated, heard together, and reversed. The verdicts above mentioned were set aside and a new trial awarded. See Daugherty v. Baltimore and Ohio Railroad Company, supra.

The Circuit Court of Cabell County, upon the mandate of this court, entered two judgments for costs in favor of the Baltimore and Ohio Railroad Company. In the case of Daugherty, administrator of Josephine M. Stringer, the Circuit Court entered a judgment for the sum of $978.65, and in the case of Daugherty, administrator of Jesse P. Stringer, against the Baltimore and Ohio Railroad Company, the Circuit Court of Cabell County entered judgment for $766.75. It was provided in the judgment orders that both judgments should be paid out of any funds in the possession of the administrator belonging to the respective estates. Executions were issued on each of such judgments, and placed in the hands of the Sheriff of Cabell County who returned the executions, 'No property found'.

It is alleged in the declarations in the instant cases that money belonging to the estates, amounting to the sum of $5,874.13, came into the hands of the administrator. The record is not clear as to whether the above sum of money belonged to both estates, or whether such sum came into the hands of theadministrator of each estate separately.

On a date not disclosed by the record, the administrator made an accounting before a Commissioner of Accounts of Cabell County, who ordered the administrator to pay the surplus to the distributees after payment of certain claims and costs of the administration. The County Court of Cabell County confirmed such report and entered an order showing such confirmation. According to the record, the administrator complied with the order of the county court.

The records of the two actions here considered are identical except as to the amounts of judgments entered on the jury verdicts, the dates of the return of the verdicts and the rendition of such judgments in the first two actions, and the amounts of the judgments rendered for costs, upon the mandates of this court.

The two judgments not having been collected, the plaintiffs in the instant actions brought these actions of debt to recover damages for a breach of the conditions of the administrator's bond, assigning as breaches of such condition, (1) that the administrator did not faithfully discharge the duties of his office as administrator, and (2) did not account for or pay over, as required by law, all money that came into his hands by virtue of his office as administrator of the two estates.

The defendant demurred to the plaintiff's declarations and assigned nine grounds of demurrer, most of which have no bearing on the real question at issue. The first ground is: (1) That the declarations failed to charge a breach of the conditions of the bond. The trial court sustained the demurrers to the declarations as hereinabove stated.

In the briefs filed, counsel for the administrator cited one case, Wingfield v. Neall, Trustee, 60 W.Va. 106, 54 S.E. 47, 10 L.R.A., N.S., 443, which in effect holds that a writ of error prosecuted to this court is a commencement of a new action and is not a continuation of the old one. We do not deem that holding of any importance in solving the problem presented by this record.

Code, 44-2-23 provides for the exoneration of a personal representative from personal liability upon the happening of certain events mentioned in that statute. We cannot say however, from the record before us, whether such statute applies to the instant case.

The claim of the plaintiff, as above stated, is founded upon the judgments for court costs accruing by reason of the two actions at law originally instituted by the administrator under Code, 55-7-5, 6. Section 6 id. reads in part as follows: 'Every such action shall be brought by and in the name of the personal representative of such deceased person; and the amount recovered in every such action shall be distributed to the parties and in the proportion provided by law in relation to the distribution of personal estate left by persons dying intestate. * * * and the amount so recovered shall not be subject to any debts or liabilities of the deceased. * * *'

In the body of the opinion in Wilder v. Charleston Transit Co., 120 W.Va. 319, 197 S.E. 814, 816, 117 A.L.R. 948, this language appears: 'Here, the claim asserted [for damages for death by wrongful act] near was owned by the decedent. It was prompted into being by virtue of decedent's death. By no stretch of the legal imagination, we think, can the recovery claimed be said to be a part of the decedent's estate.' See Richards v. Riverside Iron Works, 56, w.Va. 510, 511, 49 S. E. 437; Thompson & Lively v. Mann, 65 W.Va. 648, 650, 64 S.E. 920, 22 L.R.A.,N.S., 1094; Peters v. Kanawha Banking & Trust Co., 118 W.Va. 484, 191 S.E. 581. In Fetty v. Carroll, 118 W.Va. 401, 190 S.E. 683, 684, the following language appears: 'Under Code, 55-7-6, an action for wrongful death is for the exclusive benefit of the decedent$hs next of kin; and while the decedent's administrator alone may sue, his relation to any fund recovered is not that of decedent's representative, but that of trustee for the next of kin.'

In the instant cases, no recovery was had, but had there been a recovery, we do not think it would have been a part of decedent's estate.

It may be said that cases in other jurisdictions have held that the sureties on a personal representative's bond are liable for the proper administration of the amount which such personal representative recovers for decedent's death by wrongful act. See Watkins v. Purnell, 187 Ark. 837, 62 S.W.2d 20; Patterson v. Tate, 141 Tenn. 607, 213 S.W. 981; United States Fidelity & Guaranty Co. v. Decker, 122 Ohio St. 285, 171 N.E. 333, 68 A.L.R. 1538; Aetna Casualty & Surety Co. v. Young, 107 Okl. 151, 231 P. 261; Boyd v. Richie, 159 S.C. 55, 155 S.E. 844; Vukmirovich v. Nickolich, 123 Minn. 165, 143 N.W. 255; Goltra v. People, Use, etc., 53 Ill. 224. But the case of Thompson & Lively v. Mann, supra, tends to show that this court did not reach the same conclusion in that case as disclosed by opinions in the cases just cited from other jurisdictions.

It is not necessary to a decision in this case to determine whether a person representative and the surety on his official bond are liable for proper administration of a fund recovered by him in an action for damages on account of the death of his decedent, since there was no recovery and the question does not arise here. We express no opinion on that question. tWe have adverted to the question of liability of a personal representative and his surety on...