White v. Shipley

• Decision Date: 07 October 1916
• Docket Number: 2879
• Citation: 160 P. 441,48 Utah 496
• Court: Utah Supreme Court
• Parties: WHITE v. SHIPLEY et al

160 P. 441

48 Utah 496

WHITE v. SHIPLEY et al

No. 2879

Supreme Court of Utah

October 7, 1916

Appeal from District Court, Second District; Hon. N. J. Harris Judge.

Action by Caroline White, administratrix of William White, deceased against James Shipley and another.

Judgment for plaintiffs. Defendants appeal.

REVERSED.

Williams & Williams, for appellants.

Joseph Chez, A. W. Agee, and David L. Stine, for respondent.

STRAUP C. J. FRICK and McCARTY, J.J., concur.

OPINION

STRAUP, C. J.

This action was brought to recover damages for alleged negligence causing the death of plaintiff's intestate. She had judgment against both defendants, from which both appeal.

In the complaint it is alleged:

"That the defendant the American Express Company is a corporation doing business in the State of Utah under and by virtue of the laws of said State and was at all times herein alleged."

Each of the defendants, in separate verified answers, denied:

"That the American Express Company is a corporation doing business in the State of Utah, but alleges that it is an unincorporated stock association organized under and by virtue of the laws of the State of New York."

Upon this, among other issues, the case proceeded to trial and judgment. No proof whatever was made or offered that the express company was a corporation. Notwithstanding the defendants, timely and at their first appearance in the case, and seven months prior to the time of trial, specifically and under oath denied that the express company was a corporation and specifically averred that it was an unincorporated stock association, and at the close of the evidence the express company separately moving for a directed verdict in its favor upon the specific ground, among others, for want of proof to support the allegation that the express company was a corporation, the plaintiff, nevertheless, paid no attention to this issue and proceeded to judgment as though the allegation in the complaint of corporate existence had been admitted. The averment is an issuable averment and must be proved when properly raised by the pleadings. Sutherland's Code Pleading, Section 551; 5 Standard Ency. Pro. 645; Martin v. Deetz, 102 Cal. 55, 36 P. 368, 41 Am. St. Rep. 151. It here was properly put in issue. C. L. 1907, Section 3000. To prevail the burden was on the plaintiff to prove the corporate existence. The distinction between a corporation and an unincorporated stock association organized under the laws of New York is shown by the following cases: Matter of Jones, 172 N.Y. 575, 65 N.E. 570, 60 L. R. A. 476; Hibbs v. Brown, 112 A.D. 214, 98 N.Y.S. 353, 190 N.Y. 167, 82 N.E. 1108. The respondent says that because of C. L. 1907, Section 2927, and as amended by Laws of Utah, 1911, c. 58, she was not required to prove the averment, but was entitled to rely, as she did, upon the averment in the answer that the express company was an unincorporated stock company and to proceed to judgment accordingly. That section provides that when two or more persons associated in business, either as a joint-stock company, a partnership or other association not a corporation transacting business under a common name, they may be sued by such common name. But the plaintiff did not sue the express company as a joint-stock company, a partnership, or other association not a corporation. She sued it as a corporation. She does not help herself by pointing to something she might have done, but did not do. Then she further says that her averment of corporate existence was a misnomer, which was cured by the answer. That position, likewise, is untenable. Michigan Ins. Bank v. Eldred, 143 U.S. 293, 12 S.Ct. 450, 36 L.Ed. 162. The cases cited by her (St. Louis & S. F. Ry. Co. v. Wilhelm, 49 Tex. Civ. App. 639, 108 S.W. 1194; First Nat. Bank v. Schmidt, 6 Colo. App. 216, 40 P. 479; Pearce v. Butte El. Co., 41 Mont. 304, 109 P. 275; Storer v. Graham, 43 Mont. 344, 116 P. 1011; Davidson v. La Clede Land & Imp. Co., 253 Mo. 223, 161 S.W. 686) do not support her contention. They are to the effect that incomplete or defective averments in a complaint of corporate existence are cured by admissions or averments in an answer of corporate existence. But that is another question, and does not reach the one in hand.

The only beneficiary alleged in the complaint is the administratrix, the widow of the deceased. The defendants, however, on cross-examination of the widow, showed that the deceased left children, but that they were all adults and married, and for a long time prior to the death of the deceased had lived separate and apart from him, who, at the time of his death, was seventy-two years of age. Among other things the court, on damages, charged:

"In determining the amount to be awarded to the plaintiff, in case you find a verdict in her favor, you may also take into consideration the loss of comfort, society, and companionship of said deceased, if any, which the plaintiff, his widow and his children have sustained by reason of his death."

Complaint is made of this. It is conceded that as an abstract proposition the charge is not a misstatement of the law.

It however, is contended that it is here erroneous because it was not alleged in the complaint that the deceased left any children, and, further, because not applicable to the evidence. It was indisputably shown that the children, two sons, one forty, the other forty-six, years of age, and five daughters, the youngest thirty-one, and the eldest forty-eight years of age, were all married and had lived separate and apart from the deceased, some in Los Angeles, Cal., some in Salt Lake City, and some in Ogden City where the deceased resided. In an action brought by an administrator to recover damages for the wrongful death of another it is essential to aver that there are beneficiaries or persons entitled under the statute to the benefit of the recovery. Such a person (the widow) was alleged. Since, without objection and by the defendants themselves, it was shown that the deceased also left children, it is not necessary now to decide where some such beneficiaries are alleged whether others not alleged may, without an amendment to the complaint, also be shown and their loss considered and damages awarded for it. So, in determining the damages which the administratrix in her representative capacity was entitled to recover, we, under the circumstances, shall assume that she was entitled to recover for all of the beneficiaries shown by the evidence to have sustained pecuniary loss. But in so considering the matter we are of the opinion error was committed in directing the jury, as was done, that in determining the loss or damage which the children sustained the jury could consider the loss of comfort, society, and companionship. There is no doubt that under the holdings of this court such a charge is proper in ...