H. & T. C. R'y Co. v. W. S. Hook, Adm'r, 60 Tex. 403

Stayton, Associate Justice. The appellee qualified as temporary-administrator of the estate of W. L. Gilleland on June 21, 1881, and on the next day brought this action for the benefit of the mother of Gilleland, to recover, under the statute, damages alleged to have accrued through injuries by him received through the negligence of the appellant, from which he died on September 10,1880. At the July term of the county court for Navarro county, the appellee was appointed administrator of the estate of the deceased, and qualified.

The order appointing the appellee temporary administrator empowered him “ to employ counsel in and about the business of said estate, to demand, receipt, sue for and collect any and all liquidated and unliquidated demands due said estate, and generally to do and perform any and all acts necessary to the care and preservation of said estate.” After the appellee qualified as administrator he filed no pleading suggesting his appointment and qualification until December 17, 1881, at which time he filed an amended original petition.

It is' claimed that the appellee, as temporary administrator, had no power to institute this suit, and that the claim was barred at the time he filed the amended original petition. If the damages to be recovered could be considered as a part of the estate of the deceased, the powers conferred by the order appointing the appellee temporary administrator were broad enough to authorize him to institute and maintain a suit upon any character of claim in which the estate might be interested; but we are of the opinion that art. 1882, E.

S., has no application whatever to any matter which does not pertain properly and strictly to the estate of the decedent. The sum, which may result from an action such as this, could in no event become a part of the estate to be disbursed to creditors, or distributed among heirs under the general statutes of descent and distribution, and is therefore no part of the estate.

The statute under which this action is brought provides: “ If the parties entitled to the benefit of the action shall fail to commence the same within three calendar months after the death of the deceased, it shall be the duty of the executor or administrator of the deceased to commence and prosecute the action, unless requested by all of the parties not to prosecute the same.” This statute, within itself, and without reference to the powers which an executor or administrator, regular or temporary, may have under the statutes regulating the administration of the estates of deceased persons, prescribes who may institute and maintain suits of this character.

It is a special power conferred upon the person who may be executor or administrator, not because the matter pertains to the estate, but because the legislature deemed the persons who might be executors or administrators, more likely than others, to be proper persons to maintain suits to preserve and enforce the rights of the beneficiaries named in the act. The power might have been given to any officer of the county, without reference to whether they had any connection with the estate of the decedent or not, or might have been given to any other person.

The appellee, although he had not all of the powers of an administrator, was nevertheless an administrator when he brought the suit, and it did not abate when he ceased to be the temporary and became the regular administrator. The suit was brought and prosecuted to final termination in the district court by the same person for the use and benefit of another named person, and we see no good reason to doubt the power of the appellee under the statute to institute and maintain the suit as administrator.

It has been held, under statutes similar to our own, that an administrator might be appointed for the purpose of bringing suit, although there was no property of the deceased within the state in which the letters were taken out. Hartford R. R. Co. v. Andrews, 36 Conn., 213. In this case it is not necessary to inquire whether the institution of a suit of this character, by an unauthorized person, for the use of another, could be sustained, or whether such suit would suspend the running of the statutes of limitation.

The charge of the court, in the particulars pointed out in the assignments of error and in brief of counsel, if we look only to the designated clauses of the charge, might be held erroneous; but looking to other parts of the charge, and taking the charge altogether, we are of the opinion that the jury could not have been misled in reference to the matters complained of. A charge cannot be considered in detached portions, for in the very nature of things it is impossible in a single sentence to clearly convey to the mind of a jury the principles of law applicable to a complicated question.

The issues in the case were clearly stated to the jury in the charge, and they were informed that the appellee could not recover unless the injury was caused in the manner and by the means alleged in the petition. If the injury was inflicted in the manner stated in the petition, the court, in the charge given, clearly informed the jury what degree of care upon the part of the appellant would relieve it from responsibility therefor, and in so far as the first, second and third charges asked by appellant were correct, they were substantially given in the main charge.

Having held that the appellee had the power to institute and' maintain the suit, it is unnecessary to consider the action of the court below in refusing to give the fifth instruction asked.' The evidence tending to show how and from what cause the deceased received the injuries which resulted in his death is not all direct, but is of such character that the jury must needs take into consideration all of the attendant circumstances in order to arrive at a just determination of those matters.

While we might wish, were we called upon originally to decide the case upon the facts, for clearer and more direct testimony, yet we cannot say that the verdict is so clearly without sufficient evidence to support it as to authorize us to set it aside. The verdict does not seem to be excessive. The judgment is affirmed. Affirmed. [Opinion delivered November 30 1883.]