Opinion
No. 42,944
Opinion filed December 8, 1962.
SYLLABUS BY THE COURT
EXECUTORS AND ADMINISTRATORS — Order Continuing Business — Payment of Business Obligations — Classification of Claim — Failure to File Within Time. In an appeal involving petitioner's claim against decedent's estate where the respondent executrix was ordered and directed by the probate court, for the benefit of the estate, to continue the business of decedent, and such respondent in compliance with the order incurred an indebtedness with petitioner when decedent had during his lifetime incurred another indebtedness with petitioner, and petitioner applied payments received from the respondent in her representative capacity first to the decedent's obligation until that account was paid in full, and then to the obligation of the respondent in the continuation of the business, whereby a fourth class claim was adjudged by the trial court to be a second class claim, all as more fully narrated in the opinion, it is held: (1) Petitioner had only a fourth class claim which had to be filed against the estate within nine months after the appointment of the respondent in her representative capacity (G.S. 1949, 59-2239), (2) the trial court erred in its classification of the claim as a second class claim (G.S. 1949, 59-1301) and (3) such fourth class claim was barred.
Appeal from Sedgwick district court, division No. 2; HOWARD C. KLINE, judge. Opinion filed December 8, 1962. Judgment reversed.
Joseph W. Kennedy, of Wichita, argued the cause, and Lester L. Morris, Verne M. Laing, Ferd E. Evans, Jr., Ralph R. Brock, C. Robert Bell, Fredrick B. Strothman, and Charles J. Woodin, all of Wichita, were with him on the briefs for the appellants.
Fred Hinkle, of Wichita, argued the cause and was on the briefs for the appellee.
The opinion of the court was delivered by
This is an appeal from a judgment of the trial court wherein appellee, petitioner, was allowed a second class claim against the estate of Ralph A. Wolfe in the sum of $7,061.91 and the appellant, respondent, was denied judgment against the petitioner for payments in excess of its pro rata share of the assets of the estate under G.S. 1949, 59-1301.
The case was submitted to the trial court under stipulated facts filed October 12, 1961.
On August 25, 1959, Ralph A. Wolfe died testate and his wife, respondent, was appointed executrix of his estate. For many years
would mean that in any estate case where, as here, the probate court, in attempting to benefit the estate, would order continuation of a business, then all creditors who furnished a large or even a small amount of merchandise, labor, or services of any kind could apply any payments made by the representative of the estate to bills owed by the decedent prior to death, and thereby toll the requirements of G.S. 1949, 59-2239, commonly known as the nonclaim statute which, in pertinent part, provides:
" All demands, including demands of the state, against a decedent's estate, whether due or to become due, whether absolute or contingent, including any demand arising from or out of any statutory liability of decedent or on account of or arising from any liability as surety, guarantor, or indemnitor, and including the individual demands of executors and administrators, not exhibited as required by this act within nine months after the date of the first published notice to creditors as herein provided, shall be forever barred from payment. . . ." (Our emphasis.)
Petitioner further cites 2 Bartlett's Kansas Probate Law and Practice, rev. ed., Continuation of Business, §§ 823, 824, where the author in discussing 59-1402 mentioned that it was an entirely new section and, in part, stated:
"It may, in some cases, be advantageous to an estate to continue the business of the decedent . . . for a limited period in order to obtain the greatest amount in liquidating the business. . . . The code section is so drawn that as many safeguards against loss are provided as are reasonable. . . . The representative is limited in incurring obligations which bind the estate. . . ." (Our emphasis.) (p. 350.)
We are unable to see how the above authority supports petitioner's contention. Petitioner properly states the law in his brief to the effect that the nonclaim statute (59-2239) is one of limitation. This was settled in In re Estate of Brasfield, 168 Kan. 376, 214 P.2d 305, where this court held:
"G.S. 1947 Supp. 59-2239, providing that no creditor shall have any claim or lien upon the property of a decedent, other than liens existing on the date of his death, unless an executor or administrator of his estate has been appointed within one year after the death of a decedent is clearly a statute of limitations and is to be given the same force and effect as limitation statutes appearing in the code of civil procedure." (Syl. ¶ 5.)
The foregoing statute cannot be interpreted to mean that the executrix of a decedent's estate can, without an order of the court, make payments for merchandise and bind the estate so that a fourth class claim can thereby be accelerated into a second class claim. Had petitioner desired it could have obtained appropriate orders of the court before continuing transactions with respondent under the circumstances and the duty was upon petitioner to protect itself. Certainly it was not the intention of the legislature in enacting the probate code to require a representative of a decedent's estate to anticipate an occurrence such as we have in this instance where petitioner, by crediting payments made by the continuing business so they applied on the indebtedness of decedent prior to his death, rather than applying them on the indebtedness of the continuing business subsequent to decedent's death, obtained a preference over other creditors with the same classification of claims.
In view of all that has been stated herein we conclude the first two specifications of error should be answered in the affirmative and any claim petitioner had against decedent prior to his death was nothing more than a fourth class claim (59-1301) and since petitioner did not file its claim against decedent's estate within the nine months' period after the appointment of respondent, as prescribed by the nonclaim statute (59-2239), the claim is barred.
Concerning the third specification of error relating to the trial court's failure to render judgment for respondent for the amount petitioner had been paid by respondent in excess of its pro rata share of the estate, we can only hold that question is not properly before us. See In re Estate of Thompson, 164 Kan. 518, 523, 190 P.2d 879, cited and applied in Hildenbrand v. Brand, 183 Kan. 414, 327 P.2d 887, where it was held:
"Generally speaking, when the purpose of an action or claim is to bring something into an estate of a decedent, that is, when an estate has a claim which its personal representative is attempting to enforce, the action is to be filed in the district court or some other court of competent jurisdiction." (Syl. ¶ 2.)
The judgment is reversed.
fares connecting the Boeing Airplane Company's plants to the city of Wichita. It is known as the McArthur Road.
The Noblit family had departed from their residence about ten minutes before arriving at the site of the tragedy. They were embarked on a post-Thanksgiving holiday with friends in Leavenworth. The day was cold but the roads were clear and dry, and Mr. Noblit was driving well within the speed limit. As he approached the bridge across the Arkansas River, just east of the city limits of Wichita, he observed a truck, which had been preceding his automobile for some distance and about six car lengths ahead, suddenly swerve to the left and then back to the right side of the bridge. The truck then either stopped or practically stopped directly in the path of Noblit's 1954 Chevrolet automobile. Mr. Noblit immediately realized the roadway over the bridge was covered with ice or frost and was extremely slick. He proceeded to do the only thing he could under the circumstances by removing his foot from the accelerator. He applied the brakes gently in order to reduce his speed without throwing the vehicle into an uncontrollable skid. Nevertheless, he was still approaching the rear of the truck, and to avoid colliding with it he turned into the left-hand traffic lane. As the car started to move to the left, the steering wheel gave a violent jerk and the automobile continued to move at an angle and out of control despite anything Mr. Noblit could do. Recognizing the danger, he set the brakes hard for an instant hoping to swing his car back to the right; he turned the steering wheel over and back again trying to get traction, but still nothing happened. It seemed to Mr. Noblit that everything was occurring in slow motion; he could see the bridge railing coming at him but he was helpless. In his opinion his speed at that time was between five to seven miles per hour. It did not seem as though there was a crash or jolt — although he realized there probably was — and the car went out and over the edge of the bridge, teetering for a moment, then plunged into the river twenty-four feet below. It overturned as it struck the water and settled to the bottom, coming to rest on its right, or passenger side. The water at the place where the automobile was submerged was about four and one-half or five feet deep.
At the time the Noblit automobile plunged into the river Mrs. Noblit was in the front seat on the right, the plaintiff (appellee) was in the rear seat on the left with his sister, Joyce, who was on the right side. Mr. Noblit, while under water, attempted to open the car door. He pulled on the handle so violently that it broke off. He then kicked it open. All the time he could hear his daughter screaming, and he was able to pull her out of the rear seat and place her on the side of the car above the water. He then dove back in to try to get the plaintiff out. Mr. Noblit finally found the plaintiff who was not moving or crying and who seemed to be unconscious. He pulled the child's head over the front seat and pounded on his back. Eventually, the boy gasped and started breathing again. The father held the boy's head above the water and tried to extricate him from the back seat. At the same time, Mr. Noblit was trying to locate his wife. He felt her body but found no movement, and realized he could do nothing for her.
Two servicemen stationed at McConnell Air Base near Wichita arrived at the scene shortly after the accident and waded into the icy river to Noblit's assistance.
The action in this case is brought pursuant to G.S. 1949, 68-301. It provides in part as follows:
"Any person who shall without contributing negligence on his part sustain damage by reason of any defective bridge, . . . may recover such damage from the county . . . wherein such defective bridge, . . . is located, . . . when such damage was caused by a defective bridge, . . . which by law, . . . the county is obligated to maintain, and when any member of the board of county commissioners, the county engineer or superintendent of roads and bridges of such county shall have had notice of such defects for at least five days prior to the time when such damage was sustained; . . ."
The appellant contends the amended petition does not state facts sufficient to constitute a cause of action because it does not allege that any defect or defects in the bridge contributed to, or were a proximate cause of, any injury or damage sustained by the plaintiff. This point is first raised by specifying as error the adverse ruling of the trial court on the appellant's motion for judgment on the pleadings and the opening statement. The appellant makes no contention regarding the opening statement.
A motion for judgment on the pleadings invokes the judgment of the trial court on questions of law as applied to the well-pleaded and conceded facts. It presupposes a lack of issue of fact. Such motion admits the truth of all well-pleaded facts in the pleadings of the opposing party, and under the circumstances presented by this record, it may be considered equivalent to a demurrer. ( Geier v. Eagle-Cherokee Coal Mining Co., 181 Kan. 567, 313 P.2d 731; Dearborn Motors Credit Corporation v. Neel, 184 Kan. 437, 337 P.
was knocked out of control by accidentally coming in contact with another automobile, which threw it temporarily out of control, causing it to strike against the guardrailing of the bridge; the railing gave way, and the automobile fell into the river and the driver was drowned. The petition alleged that the drowning was the proximate result of the bridge being defective in that the railings were made of wood, which had rotted, were split and cracked, and not fastened to the bridge adequately; that the rail posts which supported the railings were defective in that they were rotten and split, and not fastened to the bridge adequately except in most instances by rusty nails that would stand no horizontal force. The petition next alleged that the bridge was defective in that it had no wheel guards.
The action was there brought pursuant to G.S. 1935, 68-301. The jury returned a verdict for the plaintiff and the defendant appealed. On appeal it was said:
". . . There was evidence that the plank of which this railing was made was so rotten as to offer scarcely any resistance. That there was no wheelguard on this bridge is admitted by all parties. A wheelguard is a solid piece of timber several inches high bolted to the floor of the bridge parallel with the railing. One does not need to be an expert to know that a wheelguard would offer some resistance to the movement of a car as it approached the edge of the bridge. We have concluded that under all the surrounding facts and circumstances the question of whether this injury would have occurred but for the defective condition of this railing was a fair question for the jury under proper instructions of the court." (p. 642.)
While the Neiswender case made no reference to the repeal of G.S. 1935, 68-1110, by the Laws of 1935, Chapter 250, it is clear the court considered that defective guardrails installed and in place on a bridge constituted a defect in the bridge within the purview of 68-301, supra.
We have little difficulty concluding that the amended petition sufficiently stated a cause of action under 68-301, supra.
The appellant in its demurrer to the evidence of the appellee raised substantially the same questions as those heretofore considered.
At the trial Mr. Noblit testified on cross examination that he hit a rough spot when his automobile started to slide; that he did not go back and check the exact area either way. "I just know that when I came upon the spot and turned the wheel, it suddenly grabbed. It could have been caused by a soft place, a hard place, a hole in the bridge. Not the ice. It would slide on the ice, but not suddenly grab. It would just have a slick surface. After I started in the angling direction that eventually hit the bridge railing, I think I put my brakes on momentarily to try and stop the angle of attack toward the bridge railing."
Sergeant Luther T. McFarland, U.S.A.F., one of the servicemen who came to Noblit's assistance in the river, testified that he had traversed the bridge five days a week for five years before the Noblit automobile went into the river. He said at the point where the Noblit automobile began to skid the surface of the roadway was rough — it had been rough for the past five years compared to what would be a reasonable roadway in his opinion; that the wood railings were poor, they were not painted; the wheel guards were wood and on occasion there was sand along the wheel guards. Through photographs admitted in evidence he identified the portion of the railing through which the Noblit automobile entered the river and he said it was rotted.
Other witnesses familiar with the McArthur Road bridge described the surface of the bridge as rough and washboardy; that the remaining railing at the point where the Noblit automobile left the bridge appeared to be "dry rotted;" that drains below the wheel guards were not apparent in photographs taken from the surface of the bridge but were apparent from the opposite side, thus indicating that instead of a ten-inch wheel guard as the bridge was constructed, the height of the wheel guard was merely five inches above the surface of the roadway and the debris which had accumulated thereon. Other testimony established that the bridge surface had holes and deep grooves in it; that the rails were weather-beaten and appeared insecure. Numerous photographic exhibits substantiated the foregoing testimony. These photographs were said by witnesses to portray the condition of the bridge at the time of the accident.
A civil engineer inspected the bridge and testified that in his opinion on November 27, 1959, the effectiveness of the hub or wheel guards in the bridge in question was reduced by reason of the accumulation of debris in the drains, and that the full ten inches of wheel guard as originally designed was reduced by reason of the accumulation of debris; that the guard, as originally installed, would have prevented a 1954 Chevrolet traveling between five and ten miles per hour and striking the wheel guardrail at an angle of forty-five degrees from going off the bridge. Based upon the assumed
places. The chairman testified that he observed the condition of the bridge as represented in these pictures. . . .
"Knowledge on the part of a particular person must sometimes be established by evidence other than statements of the party himself. That is what this court had in mind when it used the language already quoted in Watkins v. Harper County, supra. We refer to that here, not on the question of whether the findings were supported by the evidence, but to demonstrate that there was ample ground to indicate that the jury based the finding of notice to the chairman on knowledge he gained at other times when he saw this bridge . . ." (p. 639.)
Although assigned as error by the appellant, instruction No. 7 given by the court properly instructed the jury as to the law on this point when considered in connection with other instructions given and the evidence adduced in the case.
The appellant contends the verdict and the judgment rendered pursuant thereto are grossly excessive in amount. The verdict in this case was for $58,000 and judgment was entered for this amount.
The appellee in this case was partially submerged in icy water for twenty minutes or more. Dr. Hervey S. Hodson saw the appellee on the date of the accident and fifteen minutes after his admission to the hospital his temperature was 87 degrees. Subsequently his temperature rose to 104.6 degrees. The appellee also sustained a fracture of both bones in his left forearm, near the wrist. A closed reduction was unsatisfactory and another reduction was required. A permanent shortening of the arm resulted, although good function was obtained.
Doctor Hodson testified that the radically lowered body temperature of the appellee had a deleterious effect on his brain cells. He said there was no question but what the appellee had some brain damage and that brain cells do not regenerate. He further testified that it was medically impossible to determine what the final result would be. Numerous witnesses who knew the appellee before and after the accident testified as to the change in the appellee's personality and mentality. The general effect of their testimony was that prior to the appellee's injuries he was an exceptionally alert, responsive child, but that subsequent to the injuries he had undergone a definite personality change; that he was mentally on the slow side and physically awkward.
The appellant does not argue that the verdict was the result of bias or prejudice on the part of the jury. Its only complaint is that it is "excessive." The appellant offered no testimony on the issue of damages but relies wholly on matters developed on cross examination of the appellee's witnesses. No special questions were submitted with reference to the injuries and damages, and the verdict was not itemized as to elements of damages.
Under these circumstances the appellee is entitled to a favorable review of the evidence. This was the situation in Knoche v. Meyer Sanitary Milk Co., 177 Kan. 423, 280 P.2d 605, where the court said:
"A full and careful examination of the record pertaining thereto convinces us that taking into consideration the age of the appellee, her expectancy in life, . . . the nature of her injuries and their permanence, and the pain and suffering which she has endured . . . and considering amounts of verdicts for somewhat comparable injuries, heretofore approved, in the light of increased cost of living or the impaired purchasing power of money, it may not be said the amount of the verdict, even though it is for a substantial amount, is such as to shock the conscience of the court or that it should be set aside as unfounded by the evidence or as excessive. . . ." (pp. 437, 438.)
Similarly, we cannot say in the instant case that the verdict in favor of this six-year-old child is such as to shock the conscience of the court, or that it should be set aside as unfounded by the evidence or as excessive.
Other specifications of error assigned by the appellant which relate to the giving or refusing to give instructions, and objections to the evidence relate directly to the appellant's legal theory of this case which has heretofore been considered and determined adversely to the appellant.
It may be conceded the provisions of 68-301, supra, do not require the maintenance of a perfect bridge ( Hill v. State Highway Comm., 143 Kan. 129, 53 P.2d 882; and Sheen v. State Highway Commission, 173 Kan. 491, 249 P.2d 934), but the allegations of the amended petition and the evidence in this case, in our opinion, were sufficient to present a question for the jury to determine whether the bridge was defective, and, if so, whether such defective condition was the proximate cause of the appellee's injuries.
Other points raised by the appellant have not been overlooked, but after careful review they either have no merit or do not affirmatively appear to have prejudicially affected the substantial rights of the appellant. (G.S. 1949, 60-3317.)
The judgment of the lower court is affirmed.