Vaughn v. The Kansas City Northwestern Railroad Company

• Decision Date: 08 November 1902
• Docket Number: 12,767
• Citation: 70 P. 602,65 Kan. 685
• Parties: KATHERINE VAUGHN v. THE KANSAS CITY NORTHWESTERN RAILROAD COMPANY
• Court: Kansas Supreme Court

70 P. 602

65 Kan. 685

KATHERINE VAUGHN v. THE KANSAS CITY NORTHWESTERN RAILROAD COMPANY

No. 12,767

Supreme Court of Kansas

November 8, 1902

Decided July, 1902.

Error from Leavenworth district court; LOUIS A. MYERS, judge. Opinion. filed November 8, 1902. Affirmed.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

RAILROADS -- Action by Widow -- Pleading and Practice. In an action by a widow to recover damages for the death of her husband, who was, at the time of his decease, a resident of this state, the allegation of the petition that no personal representative of the estate of the deceased is or has been appointed is put in issue by an unverified denial; and if, on the trial, no proof of the fact be made, a demurrer to the plaintiff's evidence is rightfully sustained.

F. P Fifzwilliam, and C. R. Middleton, for plaintiff in error.

B. P. Waggener, James W. Orr, and W. P. Waggener, for defendant in error.

BURCH J. All the Justices concurring.

OPINION

BURCH, J.:

The plaintiff in error, Katherine Vaughn, commenced an action in the district court of Leavenworth county against the Kansas City Northwestern Railroad Company to recover damages for the death of Overton Vaughn. She alleged in her amended petition that she was the widow of the deceased; that he was at the time of his death a resident of Leavenworth county, and that no personal representative of his estate was or had been appointed. The answer of the defendant contained a denial of each and every statement, averment and allegation contained in the petition, and was not verified. Upon the trial of the action, no testimony whatever was offered in support of the allegation that no personal representative of the estate of Overton Vaughn had been appointed. The district court sustained a demurrer to plaintiff's evidence, and its action in this respect is the principal ground of error alleged in this court.

The plaintiff in error contends that sections 422 and 422a of the code of civil procedure (Gen. Stat. 1901, §§ 4871, 4872) are "statutes of authority," and that the averments of widowhood, residence in this state of the deceased and the non-appointment of a personal representative all combine to make such an allegation of authority as is admitted to be true, unless denied under oath according to the requirements of section 108 of the code (Gen. Stat. 1901, § 4542), which reads as follows:

"In all actions, allegations of the execution of written instruments and indorsements thereon, of the existence of a corporation or partnership, or of any appointment or authority, or the correctness of any account, duly verified by the affidavit of the party, his agent or attorney, shall be taken as true unless the denial of the same be verified by the affidavit of the party, his agent or attorney."

This contention cannot be maintained. The words "appointment" and "authority" have a peculiar and appropriate meaning which the law has affixed to them, and, as used in the statute relating to the verification of pleadings, refer to designations of persons and delegations of power in the accurate legal sense. They must, therefore, be construed according to such intent. (Gen. Stat. 1901, § 7342.)

The vesting in the widow of a right to sue for and recover damages in her own name, which would not otherwise be recoverable, is not an "appointment" at all, and the synthesis of rights and interests which she thus possesses is very inadequately compassed by the strict term "autho...