Kansas City, Wyandotte & Northwestern Railroad v. Menager

Allen, J. The principal contentions on behalf of the plaintiff in error are, — First, that the damages resulting from the appropriation of the land for a right of way were personal assets which went to his administrator on the death of E. S. Menager, and that by his election to prosecute the action in his individual name the plaintiff has abandoned and lost whatever — 691 — rights he might have asserted as administrator. Second, that by reason of the failure of the plaintiff to amend his petition within five years after the death of E. S. Menager so as to show that the plaintiff had succeeded to the rights of E. S. Menager the action became barred by the Statute of Limitations. It seems to be conceded that under the facts of this case the damages resulting from the construction of the railroad became, and were at the death of E. S. Menager, personal assets which passed to the administrator. The action was revived in the name of both the heir and administrator. While there was-no necessity for joining the heir in an action to recover the damages, the heir was a necessary party to. the cross-petition of the defendant which prayed for a conveyance of the title to the land under the claim that the Railroad Company had bought and paid for it but that Menager had refused to convey. After the transfer of the legal title by Margaret Menager to the plaintiff it was proper to substitute him in her place, but this was not done within one year after the conveyance was executed. The revivor of the action of Margaret Menager in the name of Louis A. Menager as her heir was made, however, within one year after her death. 1. Administrator can recover as heir, when. We are not advised as to the theory on which the court required the plaintiff to elect in which capacity he would prosecute the action. As ad- . . , -, . - , mimstrator he was entitled to recover the damages if any were recoverable. He was a proper and necessary party, as the grantee and heir of his mother, to the defendant’s cross-petition asking a conveyance of the title to the land. At the trial the defendant abandoned its claim on its cross-petition and conceded that the title was in- the plaintiff unless it had been lost by the taking possession of the land by the Railroad Company and the — 692 — ■commencement of this action. It seems hardly accurate to say that the title to the land was divested merely by the occupancy and the institution of a suit for damages where no payment had been made by the Railroad Company. Be that as it may, the parties proceeded to try the question of damages. Each side called witnesses who were examined and cross-examined at great length. The plaintiff was the only individual who, in any event, would be entitled to receive the money due from the company for damages. Whether he was entitled to retain it all as grantee, or heir of his mother, or was bound to account for it as administrator of his brother’s estate did not seriously concern the defendant. A payment to him discharges the liability of the Railroad Company in any event. As -this was a cause of action which accrued to E. S. Menager in his lifetime, under the authorities', as a strict matter of law, it would seem that the administrator must recover in his official capacity and that he cannot prosecute the action in his individual name. 8 Encyc. Plead. & Prac. 658. The reason given for this rule is that it is necessary for the. administrator to make proferí of his letters in order to show his title to the cause of action. In the case of Getty v. Larkin (ante, p. 548, 53 Pac. 755), it was held that an administratrix might recover in an action brought in her ■own name on notes taken by her in her individual name for property belonging to the estate. The distinction between the two classes of actions appears nice .and technical, yet perhaps it has something of substance and ought not to be disregarded. If the plaintiff after electing'to proceed in his individual capacity ■had offered in evidence his appointment as administrator an objection to the testimony doubtless would ■have been good. Instead of an offer of proof, however, we have an agreement at the conclusion of the trial that — 693 — the plaintiff was then the sole administrator of the estate of E. S. Menager. The record fails to disclose the purpose of either party in making or procuring this admission. Its effect however is to show by the agreement of the parties that L. A. Menager, the plaintiff, is the person who is entitled to recover the damages claimed, but that he is entitled to that recovery in his official rather than in his individual capacity. We are admonished by the Code to disregard all technical errors not affecting the substantial rights of the parties. The question as to the amount of the recovery has been fully and fairly tried. The admissions made at the trial show that the plaintiff in his capacity as administrator is entitled to the judgment which was rendered. The only error committed by the court in the entry of judgment was in failing to describe him as administrator. It is claimed by the plaintiff that he is sole heir of Margaret Menager, who was sole' heir of E. -S. Menager, and that the damages would-in any event ultimately belong to him. It was shown at the trial that all of the debts of the estate of E. S. Menager had been paid. The plaintiff, if not his sole heir, was at least one of the heirs and interested in the prosecution of this suit. Under all these facts we have to decide whether the plaintiff, by erroneously electing to prosecute the action in his individual name, has forfeited all the rights of the estate which he represents as administrator or may still enforce the judgment which he recovered in his individual name, and was and is entitled to as administrator. Substantial justice clearly requires that the Railroad Company should pay for the property it has taken and the injury it has caused to the land not taken, and should pay it to the plaintiff as administrator of the estate of his deceased brother. The record before us contains every fact essential to be known in finally determin — 694 — ing all questions relating to the subject-matter of the action. While we concede the general rule that a party can only recover in the capacity in which he sues, there are many cases in which a party may be concluded in one capacity though he sues or is sued in another. Railroad Co. v. Mills, 57 Kan. 687, 47 Pac. 834; Black on Judgments, § 536; Tate v. Shackelford, 24 Ala. 510, 60 Am. Dec. 488; Keniston v. Little, 30 N. H. 318, 64 Am. Dec. 297; Colton v. Onderdonk, 69 Cal. 155, 10 Pac. 395. The reason of the rule requiring an administrator who seeks to recover on a cause of action which accrued to his intestate in his lifetime, to sue as administrator being, as before stated, that it is necessary for him to allege and prove his authority to act as administrator, the purpose of such allegation and proof has been fulfilled in this case by the agreement of the parties, which shows his title at the time of the trial. The fact being agreed upon, no necessity appears for allegation and proof of it. The defendant admits that it could have raised no question on the right of the plaintiff to proceed as administrator. All' disputed questions having been fully and fairly tried the plaintiff’s recovery should be sustained, not in his individual right but in his capacity as administrator. 2. Statute of Limirations does not run, when. On the other proposition, that the plaintiff’s action became barred by the Statute of Limitations on his failure to amend his petition within five years after the death of E. S. Manager, the cases of City of Atchison v. Twine (9 Kan. 350), and C. B. U. P. Rld. Co. v. Andrews (34 Kan. 563, 9 Pac. 213), are strongly relied on by counsel for plaintiff in error to sustain their contention. These cases hold that , ,, n . . , an amendment of the petition showing x ° the plaintiff’s title as administrator is necessary in a case like this, but no question of the Statute of Limitations was then under consideration. — 695 — In this case the cause of action which was prosecuted by E. S. Menager, in his lifetime, was by proper proceedings duly revived in favor of the administrator and the heir at law. It is a rule of universal application, so far as we are informed, that Statutes of Limitation never run against a cause of action while an action for the enforcement of it is pending. Can it be said that after the substitution of the administrator and heir at law in the place of E. S. Menager, by revivor in their names, no afetion was pending ; that although revived, the action was still dead? We think not. After the revivor the action was pending with the administrator and heir substituted in the place of E. S. Menager. But it is said that an amendment to the petition alleging the transfer of interest incident to the death of Menager and the appointment of his administrator was essential to show a cause of action in favor of the administrator; that this was in effect an amendment setting up a substantially new cause of action, and under prior decisions of this court the running of the statute is to be computed up to the time of filing the amended pleading. This, though plausible, is not sound. The cause of action prosecuted by the plaintiff was the identical cause of action alleged by E. S. Menager when he instituted the suit. At all stages of the case, the claim of the plaintiff was simply one for the recovery of damages for the appropriation of the land taken by the Railroad Company. This identical cause of action has been pending and alive at all times except during the brief interval between the death of E. S. Menager and the revivor óf the cause in the name of his administrator. The amendment, while essential under the cases cited, does not introduce a new cause of action, and therefore the bar of the statute did not intervene. Some questions are also raised as to the admission — 696 — and rejection of evidence, and also with reference to the instructions and the measure of damages, but we find nothing in any of them of merit or worthy of extended comment. The judgment of the District Court will be modified so as to show that the recovery by the plaintiff is in his capacity as administrator, and so modified it will be affirmed.