Smith v. Maynard

BARRETT, Commissioner. The appellant, Arlie E. Smith, was a guest in an automobile driven by Hershal B. Maynard when Maynard’s automobile was involved in a collision with a truck owned by Hathaway and driven by his employee, Callahan. Maynard died as a result of the collision and Smith instituted this action against Maynard’s administratrix and Hathaway to recover $15,000 damages for his negligently inflicted personal injuries. The trial court sustained the ad-ministratrix’ motion to dismiss the action for the reason that Smith had not complied with the nonclaim statute (V.A.M.S. [738] § 473.360), the plaintiff dismissed as to Hathaway and now appeals from the judgment of dismissal as to the administratrix. The respondent has adopted the appellant’s statement of the case, hence there is no dispute as to the facts. The motor vehicle collision, Maynard’s death and the plaintiff’s injuries all occurred on April 30, 1956. On June 14, 1956, upon the application of appellant Smith (V.A.M.S. § 537.020), the Probate Court of Warren County appointed Norma Jean Maynard administratrix of Hershal’s estate and the first publication of the granting of letters of administration was on July 5, 1956, in the Warrenton Banner. Thereafter, on November 19, 1956, Smith instituted this action in the Circuit Court of Warren County and there was service of process upon the administratrix and Hathaway. On January 8, 1957, the administratrix filed an alternative motion to make the petition more definite and certain or to dismiss for the reasons that the petition failed to state a claim upon which relief could be granted and because the court did not have jurisdiction of the person or the subject matter of the action. On September 18, 1957,- the administratrix, apparently in compliance with a request from plaintiff’s counsel, filed an answer which in effect was a general denial. On December 13, 1957, the administratrix filed her motion to dismiss on the ground that the plaintiff had not complied with the nonclaim statute (V.A.M.S. § 473.360) in that he had not filed a copy of the petition and service of process in the Probate Court of Warren County. Thereafter, on December 16, 1957, the defendants filed an application for a change of venue. On May 4, 1957, the deposition of a witness was taken in War-renton and on December 9, 1957, a deposition was taken in Burlington, Iowa. And, when the annual settlement was approved, it was “ordered by the Court that no further settlement he made in this estate until pending litigation he finally determined or unless otherwise ordered by the Court.” In these circumstances it is urged that the administratrix has waived full compliance with the nonclaim statute. It is said that the defense of the statute was not raised when her first responsive pleading was due (V.A.M.S. § 509.400), that her filing of an answer which was but a general denial and of course an entry of appearance and a subjection to the court’s jurisdiction and the action having been properly instituted against the administratrix within nine months that, 'as with other statutes of limitations, she waived the bar of this statute. Murray v. De Luxe Motor Stages, Mo.App., 133 S.W.2d 1074; Conkling v. Henry Quellmalz Lumber & Mfg. Co., 225 Mo.App. 494, 34 S.W.2d 990; Landers Lumber Co. v. Short, Mo.App., 81 S.W.2d 375; Curlee v. Donaldson, Mo.App., 233 S.W.2d 746. The appellant points to these circumstances and to the. adminis-tratrix having applied for a change of venue, to her participation in the taking of depositions and urges that, as with statutes of limitations in general, she is estopped to assert the defense of the nonclaim statute. V.A.M.S. §§ 509.340, 472.130; Sugent v. Arnold’s Estate, 340 Mo. 603, 101 S.W.2d 715; Overmeyer v. Rogers, 222 Mo.App. 89, 1 S.W.2d 844 ; 53 C.J.S. Limitations of Actions §§ 24-25, pp. 958-968. Although the plaintiff had secured the appointment of Mrs. Maynard as the administratrix of her husband’s estate (V.A.M.S. § 537.020(2) and even though the files in the probate court contained the names and addresses of the plaintiff arid his counsel it, is said that she did not comply with other provisions of the Probate Code, in that she failed to notify them of her appointment (V.A.M.S. §§ 472.010, 472.100) and for this additional reason is estopped to assert the defense of the nonclaim statute. Alexander v. Wyatt’s Estate, 241 Mo.App. 550, 244 S.W.2d 121; Wilson v. Gregory, Adm’r, 61 Mo. 421. This is but a brief resume of the argument and reasons in support of the appellant’s claim that the administratrix has waived the statute or should be estopped to assert it. [739] “Though the results may be harsh,” the difficulty with the appellant’s argument is that these matters have all been determined adversely to him in Clarke v. Organ, Mo., 329 S.W.2d 670. Both waiver and estoppel were considered in the majority opinion and the dissenting opinion of Judge STORCK-MAN advances many of the reasons for the applicability of these doctrines but the force of the majority opinion is to reject the arguments advanced here. The appellant advances some additional if not new reasons and some additional factors calling for the application of waiver and estoppel but in substance they too fall within Clarke v. Organ. The nonclaim statute, section 473.-360, and other provisions of the Probate Code have been amended (Laws of Mo. 1959, Senate Bill No. 305; Supp.V.A.M.S., pp. 3-4) and therefore it is urged, under “a proper construction of these statutes,” that a suit duly and properly instituted against an administratrix within the nine months period, as this one was, may be prosecuted to a conclusion even though the “claim” has not been filed in the probate court. It is contended that the amendments evince a legislative intent, when the action has been timely filed, to merely bar claims “against the estate” but not to prohibit the prosecution to a conclusion of the suit against the administratrix. Heretofore paragraph two of the nonclaim statute read: “All actions against the estate of a deceased person, pending or filed under sections 473.363 or 473.367, shall abate or shall be barred unless notice of the revival or institution thereof is filed in the probate court within nine months after the first published notice of letters.” That paragraph now reads: “Unless written notice of actions instituted or revived under sections 473.363 or 473.367 is filed in the probate court within nine months after the first published notice of letters, no recovery may be had in any such action on any judgment therein against the executor or administrator out of any assets being administered upon in the probate court or from any distributee or other person receiving such assets.” Laws Mo.1959, Senate Bill No. 305. Section 473.367 provides that “Any action commenced against an executor or administrator, after death of the decedent, is considered a claim duly filed against the estate from the time of serving the original process on the executor or administrator and the filing of a copy of the process and return of service thereof in the probate court.” (Italics all supplied, of course.) Since an action commenced against an ad-ministratrix is a claim duly filed “against the estate,” it is urged that the nonclaim statute has been clarified by amendment and means only that “plaintiff’s claim was barred against the assets of the estate but the proceedings could continue against the administrator and collection made on any judgment against any other source such as an insurance policy,” as is the case here. Implicit in this argument of legislative intent is the assumption that the plaintiff’s action for negligent injury, a tort action, against the deceased or his personal representative is an action in personam and not an action in rem against the assets of the estate. While it may not have been necessary to a decision of the case, the court in Clarke v. Organ says, “It is a notice in an in rem proceeding.” [329 S.W.2d 676.] It is not clear that the court necessarily meant the plaintiff’s tort action against Organ or his personal representative (here Smith’s tort action against Maynard or his representative) for negligent personal injury (See 1 C.J.S. Abatement and Revival, §§ 138-144, pp. 188-198; 1 Am.Jur., Secs. 44 — 45, pp. 435-436; 1 C.J.S. Actions, § 52, p. 1148) but rather the court may have been referring to a “claim” against the estate. In any event, even under the former probate code and its nonclaim statute, the court in an action quite similar to this one held that whether called “claims” or “demands” the words “include every species of liability which the personal representative can be called upon to pay out of the assets of the ¿state” including a contingent tort liability [740] for negligent personal injury. Helliker v. Bram, Mo., 277 S.W.2d 556, 558, 561. And finally, the argument that the action is one “to enforce the plaintiff’s lien upon a policy of insurance which was possessed by the deceased and which also covers the administrator, therefore, it is excluded from the operation of the statutes involved” was fully presented by counsel, considered by the court and rejected in Clarke v. Organ. In short, the circumstances of this appeal fall within and are governed by Clarke v. Organ, supra; Helliker v. Bram, supra, and inferentially, perhaps, by North v. Hawkinson, Mo., 324 S.W.2d 733, and accordingly the judgment is affirmed. PER CURIAM. The foregoing opinion by BARRETT, C., is adopted as the opinion of the court en banc. WESTHUES, LEEDY, and HOL-LINGSWORTH, JJ., concur. EAGER, J., concurs in separate opinion filed. STORCKMAN, J., dissents in separate opinion filed. HYDE, C. J., dissents and concurs in separate opinion of STORCKMAN, J. DALTON, J., dissents.