Canfield v. Newman , 265 S.W. 1052 ( 1924 )

As I understand the main opinion, it in effect holds a cause of action arose inuring to the benefit of the estate of Nettie Castile, wherefore her administrator is the sole proper party plaintiff, and the exceptions complaining of the misjoinder of parties plaintiff were properly sustained.

Upon this holding of a right of recovery vested in the administrator, the ruling upon these exceptions becomes of no practical importance. I concur in the view that upon the facts alleged a cause of action accrued in favor of the estate of Nettie Castile, and that her administrator can maintain the suit alone. I do not, however, desire to be understood as concurring in the view that the administrator is the sole proper party. Under the peculiar facts of this case, I am of the opinion that Mrs. Canfield and Mrs. Adams were proper, though not necessary, parties. I recognize the rule that ordinarily the legal representative of a decedent's estate is the only person to sue for and recover the assets of such estate, but the rule has exceptions, and is not inflexible. Walker v. Abercrombie, 61 Tex. 69.

This is not a case of liability having its inception prior to the death of Mrs. Castile, but it originated subsequent to her death and by virtue of a contract with Mrs. Canfield respecting insurance which was to have a loss payable clause in favor of Mrs. Adams. This being the case, I think Mrs. Canfield and Mrs. Adams might properly join as nominal plaintiffs at least. It was to the interest of the defendants that they be joined, so that they would be concluded by the judgment rendered. I believe the defendants would have had the right to make them parties to the suit for that purpose. I believe Mrs. Canfield and Mrs. Adams were properly joined, because they were parties to the contract of insurance. 26 C.J. 483; 33 C.J. 81; Cassidy v. Kluge, 73 Tex. 154,12 S.W. 13; Oglesby v. Forman, 77 Tex. 647, 14 S.W. 244; Walker v. Abercrombie, supra.

I concur in the conclusion that the petition states a cause of action, and in the order reversing and remanding the case.