Everett v. Howard Buick Co.

SPENCE, J. This in an appeal by defendants from .a judgment in favor of plaintiffs in an action brought to recover damages for the death of Ralph E. Battison, deceased.

The action was originally brought by Charles Matson, as the administrator of the estate of said deceased. The complaint contained the usual allegations regarding the qualifications of said administrator. Said allegations were merely denied for lack of information or belief with respect thereto. This denial was insufficient to create an issue. (Montgomery v. Fidelity & Deposit Co., 69 Cal. App. 251 [230 Pac. 993] ; Lampton v. Davis Standard Bread Co., 48 Cal. App. 116 [191 Pac. 710]; Saylor v. Taylor, 42 Cal. App. 474 [183 Pac. 843].) The cause proceeded to trial and it was not until after the testimony was closed and the argument of plaintiffs’ counsel had commenced, that counsel for defendants asked that the cause be reopened for the purpose of permitting defendants to introduce evidence showing that said Charles Matson had been discharged as administrator of the estate of the deceased prior to the time that the trial had commenced. The motion was denied. Thereafter defendants moved for a directed verdict upon the ground that there had been no proof made regarding the qualifications of the party plaintiff. This motion was also denied. After the return of the verdict, defendants made a motion for judgment notwithstanding the verdict upon the same grounds. During the argument of this motion, leave was requested to substitute the heirs of the deceased in the place of the administrator, which leave was granted. The motion for judgment notwithstanding the verdict was thereupon denied.

Defendants contend that the trial court erred in substituting the heirs in the place of the discharged administrator. In making this contention defendants argue for a strict construction of the provisions of section 385 of the Code of Civil Procedure claiming that the heirs were not the representatives, successors in interest or transferees of the administrator. We deem it unnecessary to enter into an academic discussion of the questions thus raised as defendants con[546]cede that the action did not abate and could have been continued by another administrator. This being true and, as an administrator is merely the statutory trustee for the heirs in bringing an action for wrongful death (Rose v. San Diego Electric Ry. Co., 133 Cal. App. 646, 651 [24 Pac. (2d) 838]), we believe that the error, if any, in substituting the heirs as plaintiffs in the place of the administrator could not have been prejudicial to defendants.