State ex rel. Baltimore & Ohio Railroad v. Daugherty

Lovins, Judge:

These actions of debt were brought to this court by writs of error to judgments of the Circuit Court of Cabell County. The State of West Virginia, who sued for the use and benefit of the Baltimore and Ohio Railroad Company, a corporation, brought two actions of debt, one against Duncan W. Daugherty, Administrator of the estate of Josephine M. Stringer, and the Aetna Casualty and Surety Company, a corporation, the surety on such administrator’s bond, and the other against Duncan W. Daugherty, administrator of the estate of Jesse P. Stringer and the Aetna Casualty and Surety Company, the surety on his bond as such administrator.

The object of these actions of debt is to recover from the administrator two judgments rendered by the Circuit Court of Cabell County for court costs awarded in two certain actions hereinafter- mentioned.

The trial court sustained demurrers to the declarations herein with leave to the plaintiff to amend. Upon the plaintiffs declining to amend the declarations, the actions were dismissed. Plaintiffs prosecute this writ of error.

Duncan W. Daugherty was appointed administrator of the estate of Josephine M. Stringer and Jesse P. Stringer by the County Court of Cabell County, West Virginia, on the 22nd day of March, 1948. Two bonds were given by such administrator, each in the penal sum of $5000.00.

After the qualification of such administrator, he employed an attorney to bring two actions against the Baltimore and Ohio Railroad Company for allegedly causing the death of his decedents by wrongful act.

The decedents lost their lives in a collision at a grade crossing between an automobile in which they were riding and one of the trains of the Baltimore and Ohio Railroad Company. For additional facts concerning such accident, see opinion of this court in the two cases of Duncan W. Daugherty, Administrator v. B. & O. Railroad Co., 135 W. Va. 688 64 S. E. 2d 231.

The pertinent facts which we have been able to glean from the meager record before us are as follows: Daugherty, Administrator of Josephine M. Stringer, recovered a jury verdict in the amount of $3600.00, and a judgment was entered thereon by the Circuit Court of Cabell County on the 3rd day of January, 1950. In the case of Daugherty, Administrator of Jesse P. Stringer, the plaintiff was awarded a jury verdict in the amount of $1000.00, and judgment was entered thereon on the 11th day of March, 1950.

On petition of the Baltimore and Ohio Railroad Company, a writ of error and supersedeas to each of the judgments above was awarded by this court. Upon the hearing, the cases were consolidated, heard together, and reversed. The verdicts above mentioned were set aside and a new trial awarded. See Duncan W. Daugherty v. Baltimore and Ohio Railroad Company, supra.

The Circuit Court of Cabell County, upon the mandate of this court, entered two judgments for costs in favor of the Baltimore and Ohio Railroad Company. In the case of Daugherty, Administrator of Josephine M. Stringer, the Circuit Court entered a judgment for the sum of $978.65, and in the case of Daugherty, Administrator of Jesse P. Stringer, against the Baltimore and Ohio Railroad Company, the Circuit Court of Cabell County entered judgment for $766.75. It was provided in the judgment orders that both judgments should be paid out of any funds in the possession of the administrator belonging to the respective estates. Executions were issued on each of such judgments, and placed in the hands of the Sheriff of Cabell County who returned the executions, “No property found”.

It is alleged in the declarations in the instant cases that money belonging to the estates, amounting to the sum of $5874.13, came into the hands of the adminístrator. The record is not clear as to whether the above sum of money belonged to both estates, or whether such sum came into the hands of the administrator of each estate separately.

On a date not disclosed by the record, the administrator made an accounting before a Commissioner of Accounts of Cabell County, who ordered the administrator to pay the surplus to the distributees after payment of certain claims and costs of the administration. The County Court of Cabell County confirmed such report and entered an order showing such confirmation. According to the record, the administrator complied with the order of the county court.

The records of the two actions here considered are identical except as to the amounts of judgments entered on thé jury verdicts, the dates of the return of the verdicts and the rendition of such judgments in the first two actions, and the amounts of the judgments rendered for costs, upon the mandates of this court.

The two judgments not having been collected, the plaintiffs in the instant actions brought these actions of debt to recover damages for a breach of the conditions of the administrator’s bond, assigning as breaches of such condition, (1) that the administrator did not faithfully discharge the duties of his office as administrator, and (2) did not account for or pay over, as required by law, all money that came into his hands by virtue of his office as administrator- of the two estates.

The defendant demurred to the plaintiff’s declarations and assigned nine grounds of demurrer, most of which have no bearing on the real question at issue. The first ground is: (1) That the declarations failed to charge a breach of the conditions of the bond. The trial court sustained the demurrers to the declarations as herein-above stated.

In the briefs filed, counsel for the administrator cited one case, Wingfield v. Neall, Trustee, 60 W. Va. 106, 54 S. E. 47, which in effect holds that a writ of error prosecuted to this court is a commencement of a new action and is not a continuation of the old one. We do not deem that holding of any importance in solving the problem presented by this record.

Code, 44-2-28 provides for the exoneration of a personal representative from personal liability upon the happening of certain events mentioned in that statute. We cannot say however, from the record before us, whether such statute applies to the instant case.

The claim of the plaintiff, as above stated, is founded upon the judgments for court costs accruing by reason of the two actions at law originally instituted by the administrator under Code, 55-7-5, 6. Section 6 id reads in part as follows: “Every such action shall be brought by and in the name of the personal representative of such deceased person; and the amount recovered in every such action shall be distributed to the parties and in the proportion provided by law in relation to the distribution of personal estate left by persons dying intestate. * * * and the amount so recovered shall not be subject to any debts or liabilities of the deceased. * * * ”

In the body of the opinion in Wilder v. Transit Co., 120 W. Va. 319, 197 S. E. 814, this language appears: “Here, the claim asserted [for damages for death by wrongful act] never was owned by the decedent. It was prompted into being by virtue of decedent’s death. By no stretch of the legal imagination, we think, can the recovery claimed be said to be a part of the decedent’s estate.” See Richards v. Iron Works, 56 W. Va. 510, 511, 49 S. E. 437; Thompson v. Mann, 65 W. Va. 648, 650, 64 S. E. 920; Peters v. Trust Co., 118 W. Va. 484, 191 S. E. 581. In Petty v. Carroll, 118 W. Va. 401, 190 S. E. 683, the following language appears: “Under Code, 55-7-6, an action for wrongful death is for the exclusive benefit of the decedent’s next of kin; and while the decedent’s administrator alone may sue, his relation to any fund recovered is not that of decedent’s representative, but that of trustee for the next of kin.”

In the instant cases, no recovery was had, but had there been a recovery, we do not think it would have been a part of decedent’s estate.

It may be said that cases in other jurisdictions have held that the sureties on a personal representative’s bond are liable for the proper administration of the amount which such personal representative recovers for decedent’s death by wrongful act. See Watkins v. Purnell, (Ark.) 62 S. W. 2d 20; Patterson v. Tate, (Tenn.) 213 S. W. 981.; United States Fidelity & Guaranty Co. v. Decker, (Ohio) 171 N. E. 333; Aetna Casualty & Surety Co. v. Young, (Oklahoma) 231 P. 261; Boyd v. Ritchie, (S. C.) 155 S. E. 844; Vukmirovich v. Nickolich, (Minn.) 143 N. W. 255; Goltra et al. v. The People, Use, etc., 53 Ill. 224. But the case of Thompson v. Mann, supra, tends to show that this court did not reach the same conclusion in that case as disclosed by opinions in the cases just cited from other jurisdictions.

It is not necessary to a decision in this case to determine whether a personal representative and the surety on his official bond are liable for proper administration of a fund recovered by him in an action for damages on account of the death of his decedent, since there was no recovery and the question does not arise here. We express no opinion on that question.

We have adverted to the question of liability of a personal representative and his surety on his official bond in order to point out the status of a claim against the estate for court costs incurred in an action brought to recover damages for the death of his decedent.

The principles governing the disposition of the actual issue in this case are discussed and settled' in the case of Thompson v. Mann, 65 W. Va. 648, 64 S. E. 920. The factual basis of the decision in the case of Thompson v. Mann, supra, will be found in the companion case of Thompson & Lively v. Mann, 53 W. Va. 432, 44 S. E. 246. In the Thompson cases, this court had before it a bill of complaint filed by the plaintiffs who, along with Mann, the administrator, had represented the distribu-tees of a decedent for the recovery of damages on account of the death of the decedent. Thompson and Lively alleged that they recovered a judgment against the administrator in the sum of' $250.00, for attorneys’ fees for services so rendered. Mann, the administrator, had made a settlement before a commissioner and a bill was filed by plaintiffs to falsify the settlement so made.

In the first opinion, the original bill was held insufficient on the grounds that the exhibits with the bill showed that the judgment was against Mann individually and was not enforceable against Flanagan, the surety on Mann’s official bond.

In the second opinion, the first point of the syllabus reads as follows: “The general rule, subject to few exceptions, is that a personal representative can not charge the estate by contracts originating with himself, although for the benefit and in the interest and on behalf of the estate, such contracts binding him only in his private capacity.’’ It was also held in the second opinion that a judgment de bonis testatoris is no lien or charge upon money recovered on account of the death of a decedent by wrongful act, neglect or default.

In the body of that opinion, this language appears: “ ‘In causes of action wholly accruing after his decedent’s death, the personal representative is in general liable individually * * * And wherever an action is brought against an executor or administrator, on promises said to have been made by him after the decedent’s death, he is chargeable in his own right and not as representative;’ Whatever action was taken by the administrator in instituting the two actions against the Baltimore and Ohio Railroad Company, and incurring court costs thereon, occurred after Jesse P. Stringer and Josephine M. Stringer were dead. Decedents had incurred no liability for the costs on which the judgments de bonis testatoris were based.

In accordance with the principles enunciated in the second Thompson opinion, we are of the opinion that the defendant in the instant cases, as personal representative, and the property belonging to the respective estates are not liable for costs incurred by the administrator in the actions for their allegedly wrongful deaths. It is said in that opinion that this rule seems to be a wise one, since it protects the estate against waste and extravagance of a personal representative. It follows that the declarations in the instant actions fail to allege breaches of the official bonds of the administrator and upon the plaintiffs’ failure to amend, the actions were properly dismissed.

The opinion in the second Thompson case indicates that where personal representative makes expenditures of the nature here considered, he is entitled to reimbursement out of the estate, but as to that question, we express no opinion.

Accordingly, the judgment of the Circuit Court of Cabell County, being without error, is affirmed.

Affirmed.