Estes v. Edgar Zinc Co.

• Decision Date: 08 April 1916
• Docket Number: 20109
• Citation: 97 Kan. 774,156 P. 758
• Parties: ESTES v. EDGAR ZING CO.
• Court: Kansas Supreme Court

156 P. 758

97 Kan. 774

ESTES v. EDGAR ZING CO.

No. 20109

Supreme Court of Kansas

April 8, 1916

Syllabus

While the action was pending, the plaintiff died. The action was revived in the name of his administratrix, who by leave of court filed an amendment to the petition for the purpose of showing her authority to prosecute the action. The amendment stated that the plaintiff died intestate, a resident of a certain county; that by the consideration of the probate court of that county she was duly appointed administratrix of his estate; that she had duly qualified as such administratrix; and that she was the duly qualified and acting administratrix of the plaintiff. Held, the amendment was sufficient against an objection to the introduction of evidence.

The plaintiff recovered judgment against the defendant. On appeal to this court the judgment was reversed on a specific ground and the cause was remanded for a new trial. The plaintiff again recovered, and the defendant again appeals. Held, the defendant is not entitled as a matter of right to urge defects in the proceedings which might have been presented on the former appeal, but which were not, or matters which were presented and decided on the former appeal.

To prevent the possibility of a miscarriage of justice, the court has examined all the assignments of error relating to matters which were, or which might have been, decided on the former appeal and is satisfied that the defendant has not been prejudiced in any of its substantial rights.

The refusal of the trial court to submit to the jury certain special findings of fact held to be without prejudice, in view of other findings of fact which were returned.

Appeal from District Court, Montgomery County.

Action by Laura J. Estes, administratrix of the estate of William J Estes, against the Edgar Zinc Company. From a judgment for plaintiff, defendant appeals. Affirmed.

O. P. Ergenbright and T. S. Salathiel, both of Independence, for appellant.

Chester Stevens, of Independence, and Chas. D. Welch, of Coffeyville, for appellee.

OPINION

BURCH J.

The action was one by an employéfor damages resulting from personal injuries occasioned by the negligence of his employer. The plaintiff recovered. On appeal to this court the judgment was reversed because of a special finding that there was no evidence relating to a material fact, and a new trial was ordered. Estes v. Zinc Co., 91 Kan. 138, 136 P. 910. Before the second trial the plaintiff died. The action was revived in the name of the plaintiff’s administratrix, who prosecuted it to judgment. The defendant was again defeated, and again appeals.

The defendant raises the question whether or not the record discloses a proper party plaintiff. The petition was amended by leave of court for the purpose of showing the appointment and qualification of the administratrix in whose name the action had been revived. The amendment reads as follows:

"Comes now Laura J. Estes, widow of William J. Estes, the above-named plaintiff, and for an amendment to the petition herein she alleges that William J. Estes, the above-named plaintiff, departed this life intestate on the 25th day of January, 1914, during the pendency of this action; that at the time of his death he was a resident of Montgomery county, Kan., and that on or about the 14th day of March, 1914, by the consideration of the probate court of Montgomery county she was duly appointed administratrix of his estate, and that she has duly qualified as such administratrix, and is now the duly acting and qualified administratrix of the estate of William J. Estes, deceased.

That afterwards, to wit, on the 14th day of November, 1914, on motion, this court duly made an order, reviving the above-entitled action in her name as administratrix of the estate of William J. Estes, deceased, and that she desires, by this pleading, to amend the original petition in this action, and that said action proceed on said petition as amended hereby."

No objection was made to the form of the amendment, and no issue was taken upon it. At the beginning of the trial an objection was made to the introduction of evidence under the amended petition, for the reason it did not state facts sufficient to constitute a cause of action in favor of the plaintiff. It is said the amendment did not present in issuable form the facts from which the legal conclusion of due appointment and qualification might be deduced. The cases of City of Atchison v. Twine, 9 Kan. 350, and C. B. U. P. R. Co. v. Andrews, Adm’r, 34 Kan. 563, 9 P. 213, are cited. In those cases no amendment whatever was made to the petition. It does not take much of a pleading to be good against an objection to the introduction of evidence. Conclusions which apprise the opposite party of what is claimed are sufficient against such an objection, and, indeed, conclusions of that kind are sufficient against a formal demurrer when no motion to make definite and certain has been interposed. Besides this, as the court has remarked on numerous occasions, the important thing is not whether the technical requirements of the old artificial system of framing sharp issues has been complied with, but whether the plaintiff has stated what he claims in such a way that the defendant may know what he has to meet. It was important that the defendant should not be compelled to pay damages due to William J. Estes in his lifetime to some one not authorized to receive them, or to defend an action which might lead to that result. When Laura J. Estes came in and stated that while the action was pending William J. Estes died intestate, a resident of Montgomery county, that by the consideration of the probate court of Montgomery county she was duly appointed administratrix of his estate, that she had duly qualified as such administratrix and was acting in that capacity, and that she desired the action to proceed on the original petition amended by her statement, she came very near to stating all that good pleading required. The defendant was quite as fully advised of the nature of her claim as if she had pleaded her letters of administration, the taking of her oath, and the giving of her bond and its approval, all matters of record which she was not required to exemplify. The defendant could not sit by until the trial was on and then say it was confronted by nothing at all. Furthermore: Before the plaintiff’s case was closed the records and documents were produced in evidence, which established the right of the administratrix to prosecute the action. Their authenticity and probative force were not contested, and no claim is now made that the administratrix did not, in fact, have capacity to prosecute the action. Objection was made to the proof, but the defendant did not undertake to meet it in any way. There is not now, and there never has been, any doubt whatever that Laura J. Estes in her representative capacity was the proper party and had the right to go on with the litigation; and, if the amendment to the petition were to be regarded as materially defective, this court would now treat the petition as properly amended to conform to the proof.

The material facts of the case were sufficiently stated in the former opinion. Perhaps there should be added to the former statement the fact that the gear-shifting device was located on the third floor of the building, and that the line shaft was on the second floor. The evidence given by the deceased plaintiff at the former trial was read to the jury, and all the important and controlling evidence on behalf of the plaintiff at the second trial was substantially the same as at the first trial, with this addition: A witness, not previously produced, told of an instance when the machinery started apparently of its own accord, and testified that after the plaintiff was injured the line shaft was found to be four inches lower at one end than at the other, which would make one side of the belt tighter than the other, and would cause the belt to run to the tight side. The defendant introduced no evidence, and the same instructions were given the jury as before.

The defendant assigns as error the overruling of a motion to make the original petition more definite and certain and the...