Wellman v. Bethea

• Decision Date: 30 May 1917
• Citation: 243 F. 222
• Parties: WELLMAN v. BETHEA.
• Court: U.S. Court of Appeals — Fourth Circuit

243 F. 222

WELLMAN v. BETHEA.

United States District Court, E.D. South Carolina.

May 30, 1917

Mitchell & Smith, of Charleston, S.C., for plaintiff.

Gibson & Muller, of Dillon, S.C., for defendant.

CONNOR District Judge.

The pleadings, exhibits, and admissions of the parties, disclose the following facts:

On March 2, 1911, plaintiff, Sarah A. Wellman, in behalf of herself and her children, instituted an action in this court against defendant, 'John C. Bethea, clerk of court, as administrator of the estate of John H. Bethea, deceased,' for the recovery of $25,000 damages, alleged to have been sustained by reason of the death of her husband Ora E. Wellman, caused by the wrongful and unlawful act of defendant's intestate. The homicide occurred in the state of Delaware, and the suit was based upon the cause of action given to plaintiff by the statute in force in that state. Defendant, in his answer, denied the allegations contained in plaintiff's complaint. At a term of this court held on January 7, 1913, plaintiff recovered judgment against defendant, in his representative capacity, for the sum of $4,000. Execution was issued against defendant, in his representative capacity, for the sum of $4,000. Execution was issued against defendant administrator, and was returned unsatisfied, except for the sum of about $23.

Plaintiff on June 28, 1913, instituted an action against defendant John C. Bethea, personally, and the Gulf & Atlantic Insurance Company, surety, on his official bond, for the recovery of the balance remaining due and unpaid on said judgment alleging that defendant John C. Bethea, having failed to plead plene administravit, or insufficient assets, was liable personally for the full amount of said judgment. Defendant, in his representative capacity, on May 25, 1914, instituted a suit in this court, in equity, alleging that he had, prior to the rendition of the judgment of January 7, 1913, administered and disbursed the assets which came into his hands as administrator of John H. Bethea, except the sum of $380.40, and that since the rendition of the judgment he had disbursed, in due course of administration, this amount, less $35. He further alleged that his failure to plead plene administravit in the action against him was due to excusable mistake, etc. This cause, upon defendant's answer, came on for hearing, whereupon a decree was passed March 19, 1915, permitting the said John C. Bethea, administrator, to enter his plea in the original action. This decree was affirmed. 228 F. 882, 143 C.C.A. 280. The liability of defendant, as administrator, to plaintiff, is dependent upon his making good his plea-- that he has fully, and in accordance with the statutes in force in South Carolina, administered the estate of his intestate. His accounts, filed in the probate court, show that, on November 27, 1910, he received, as administrator, $2,214.64. He disbursed in cost of administration and commissions, $115.24; counsel fees in the defense of plaintiff's action, $250; and action of Mrs. Medlin against him as administrator, $25.

On March 2, 1911, being the same day on which this action was instituted, Mrs. M. E. Medlin instituted an action in the court of common pleas of Dillon county against defendant, as administrator of John H. Bethea, and in her complaint she alleged that his intestate was indebted to her for 'board and service' during the years 1904 to 1909, inclusive, at the rate of $20 a month, aggregating the sum of $1,440; that she had presented her account to defendant and he refused to pay same. Defendant, on April 5, 1911, filed his answer to the complaint, averring that he had not sufficient information to form a belief as to the truth of the allegation of the complaint, and therefore denied same. On October 26, 1911, the cause was brought to trial before the court and a jury, when a verdict was rendered against defendant for the full amount claimed by her, and judgment rendered accordingly. On December 1, 1911, defendant paid said judgment, together with $4 cost, aggregating $1,444, leaving a balance in his hands, December 15, 1911, of $380.40. Of this amount defendant paid, December 15, 1911, $1 for filing return; January 1, 1913, to his attorneys for service rendered in this case, and another case of like character brought by Mrs. Williams, the sum of $250, $64 cost in this case, and commissions aggregating $94.40, leaving in his hands, January 3, 1911, $35. Plaintiff attacks the account in respect to the payment of Mrs. Medlin's judgment.

Whatever inferences may be indulged in regard to the bona fides of her account, from the fact that her action was instituted on the same day upon which plaintiff brought her suit in this court, coupled with the rather indefinite character of her account, the judgment is not open to attack in this court, or in this action. It is regular in form, and based upon the verdict of the jury in the court of common pleas of Dillon county. In view of its effect upon the rights of plaintiff in this action, and Mrs. Williams, plaintiff in another action of like character, in which she recovered judgment, it would seem that, while under no legal obligation to do so, it would have occurred to the defendant to have notified them of the institution of the action. The sole question now open to plaintiff is whether the defendant, administrator, was not under legal liability to withhold payment of that judgment until the termination of this action, to the end that the assets in his hands should be divided pro rata between the judgments. The answer to this question is dependent upon the construction of the South Carolina statute, prescribing the method of administration of the estates of decedents. It is held by the Supreme Court of South Carolina that the status of the claims against the estate of deceased persons, in respect to their rank in the administration of the estate is fixed by reference to the date of the death, and is not affected by the date of the judgment fixing its validity and amount. Fraser & Dill v. City Council, 23 S.C. 373.

The South Carolina statute fixes the order of payment of debts and charges against the estates of deceased persons by providing five classes. It is manifest that neither plaintiff's nor Mrs. Medlin's debts are included in either of the first four classes. The fifth class includes 'bonds, debts by specialty and debts by simple contract. ' The plaintiff insists that her claim, or cause of action, is of equal dignity and entitled to prorate with Mrs. Medlin's judgment, without regard to the cause of action or the date of the judgment. Defendant insists that plaintiff's cause of action or claim is not within the language of the fifth or any other class of debts directed to be paid by the administrator-- that, in respect to the cause of action created by the Delaware statute, in favor of plaintiff, as the widow of her deceased husband, by reason of his death, caused by defendant's intestate, there is a casus omissus, a claim for which no provision is made. The question is of first impression. Neither of the learned and industrious counsel have called attention to any decided case in point.

It is uniformly held that the right to sue for wrongful death, given by Lord Campbell's Act and the state statutes in this country, is a new cause of action, independent of any cause of action for the tort committed by defendant, which the deceased may have had during his life, or would have had, if he had survived the injury. 8 Am. & Eng.Enc.

859; Osteen v. So. Ry., 76 S.C. 368, 57 S.E. 196; Beaver's Adm'r v. Putnam's Curators, 110 Va. 713, 67 S.E. 353. The claim, or demand for damages, did not exist against the defendant's intestate and could not, therefore, in any proper sense, be termed a debt due by contract. Whether a judgment rendered upon a claim for a tort, as for assault and battery, or a personal injury sustained by the negligence of defendant's intestate, would have been within the statute, is not involved here, and analogies do not aid in dealing with the question. It is manifest that, to bring plaintiff's claim within the terms of the statute, so that it may share with a contract debt, resort must be had to construction, sustained by the contention that such was the legislative intention.

A well-settled rule of statutory construction imposes upon the court the duty of ascertaining the intention of the Legislature, with the restriction that such intention must be ascertained from the words used in the statute and the subject-matter to which it relates. 'The spirit of the act must be extracted from the words of the act, and not from conjectures aliunde. ' Gardner v. Collins, 2 Pet. 58, 7 L.Ed. 347. Legislative intent, determining statutory construction, 'is to be searched for in the words which the Legislature has employed,' and there is no ground for construction where apt language is found. The Paulina v. U.S., 7 Cranch, 52, 3 L.Ed. 266. The general rule of statutory construction is that the intent of the lawmaker is to be found in the language he has used; and that language is always controlling, unless there are cogent reasons for believing that the language does not fully and accurately disclose the intent. United States v. Goldenberg, 168 U.S. 95, 18 Sup.Ct. 3, 42 L.Ed. 394.

When words found in a statute have a well-settled legal meaning they will be given such meaning in seeking the legislative intention. When they have no such meaning, it will be presumed that the Legislature used them in the light of their usual and ordinary meaning. While not strictly analogous, the discussion in Louisiana v. Mayor of New Orleans, 109 U.S. 285, 3 Sup.Ct. 211, 27 L.Ed. 936, indicates the trend of thought. The relators, Folsom and others, recovered...