Dominguez v. Galindo

VAN DYKE, P. J.

This is an appeal from a judgment for $10,000 awarded to respondent (plaintiff below) as special administrator of the Estate of Louis Valdez Bravo in a wrongful death action brought on behalf of the decedent’s widow and children.

On July 1, 1950, Bravo was riding on the bed of a truck owned and being driven by appellant Galindo. Bravo was then a business invitee of appellant. The truck bed left its fastenings and fell off, throwing Bravo on to the highway and causing injuries from which he died. On January 5, 1951, a petition was filed for letters of administration of Bravo’s estate, which petition was in due course noticed for hearing, but no further proceedings were taken. General letters not having been issued, on March 16, 1951, respondent petitioned for special letters by a petition which stated, among other things, that there had been a delay in the issuance of general letters and that there was a need for special administration. On the same day an order was made by the probate court appointing respondent as special administrator of the estate of Bravo. It was ordered that as such administrator he give bond in the sum of $50 and that upon his giving such bond and taking the oath required by law “special letters of administration be issued to him in conformity with this order. ’ ’ On May 29,1951, respondent filed a bond and letters were issued to him. The bond was executed by the Globe Indemnity Company, a corporation. ' The condition of the

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obligation was declared to be that since the probate court had appointed the principal administrator of the estate of Bravo and had directed that “letters of administration” be issued to him, the obligation would be void if he faithfully executed the duties of the trust, otherwise to remain in full force and effect. The letters issued by the clerk were captioned in the estate of Bravo and entitled “Letters of Administration.” The body of the document read: “Adolfo G. Dominguez is hereby appointed Administrator of, the Estate of Louis Bravo, . . ., Deceased,” and by the oath appended thereto and executed by respondent he swore to perform according to law the duties of his office. It is to be noticed that the letters were not captioned as being special letters nor did they recite in the body of the document that Dominguez was appointed special administrator. On June 22, 1951, respondent filed a complaint against appellant which recited the following: That Bravo was dead; that on the 29th of May, 1951, letters of administration upon his estate had been issued to respondent; that on that day respondent had qualified as such administrator and was the only appointed, qualified and acting administrator of the estate of Bravo; that he brought the action for the benefit of the widow and children of Bravo, naming them. It is to be noticed that the complaint does not refer to respondent as being the special administrator of the estate of Bravo. Appellant answered this complaint on September 11, 1951, more than a year after the death of Bravo, putting in issue, among other things, the capacity of respondent to maintain the suit and pleading the bar of the statute of limitations. On March 10, 1952, the probate court ordered the issued letters be amended nunc pro tune as of the date of their issuance by adding the word “special” before the word “administrator” wherever it occurred therein. No change was made in the bond. Thereafter and at the trial, on order of court, respondent amended his complaint so as to allege his status as said special administrator. The court, sitting without a jury, gave judgment for respondent as above stated.