Summary
invoking judicial estoppel to bar a change of position within the same litigation and between the same parties
Summary of this case from Clark v. NeeseOpinion
No. 40484.
May 6, 1957.
1. Executors and administrators — not to be sued for six months — purpose of statute.
Purpose of statute providing that an administrator shall not be sued until after expiration of six months from date of letters of administration is to allow time to administrator to examine and understand conditions of estate, to provide means of paying debts, if practicable, without suit by collection of assets, and to be advised of any demands against it which it may be necessary to defend. Sec. 612, Code 1942.
2. Executors and administrators — suit prematurely brought against administrator — codefendants cannot object — right personal to administrator.
Where suit was brought against administrator of estate and two other defendants within four days after administrator was issued letters, but administrator did not object to suit being prematurely brought, codefendants of administrator had no right to object to suit on basis that suit was brought before expiration of six months from date of letters of administration. Sec. 612, Code 1942.
3. Executors and administrators — one who has cause of action which survives decedent's death — is a creditor entitled to administration.
One who has cause of action which survives decedent's death is creditor entitled to administration. Sec. 525, Code 1942.
4. Executors and administrators — grant of administration to creditor — purpose of statute permitting.
Purpose of statute providing that court may grant administration of decedent's estate to creditor or to any other suitable person was to provide methods for one having claim against estate to see to prompt and proper administration of estate. Sec. 525, Code 1942.
5. Executors and administrators — attorneys for creditor of estate may actively participate in appointment and qualification of administrator of estate.
Attorneys for creditor of estate may actively participate in securing appointment and qualification of administrator of estate. Sec. 525, Code 1942.
6. Venue — right of plaintiff to choose venue — actively participating in appointment of administrator for deceased alleged joint tortfeasor in certain county in order to draw other tortfeasor into Circuit Court of that county — not improper in absence of fraud or collusion.
It was not improper for plaintiff's attorneys to assist in securing appointment and qualification of administrator of estate of automobile driver so that venue, in action for death of automobile passenger in collision of automobile and truck, would be in certain county and thus draw truck owner and driver into Circuit Court of that county in absence of fraudulent or collusive scheme between plaintiff and administrator. Sec. 525, Code 1942.
7. Venue — motion for change of venue on ground of legal fraud as to defendants' venue rights — answer of defendants as working a judicial estoppel.
Where answer of truck owner and driver in action brought for death of automobile passenger caused by collision of automobile and truck, affirmatively alleged that sole and proximate cause of collision was automobile driver's negligence, they were judicially estopped to claim, in motion for change of venue from county of deceased automobile driver, that plaintiff's evidence showed conclusively that automobile driver had not been negligent and that sole purpose of joining administrator as defendant was to destroy venue rights of truck owner and driver, and that this constituted legal fraud. Sec. 525, Code 1942.
8. Estoppel — difference between judicial estoppel and equitable estoppel.
Judicial estoppel differs from equitable estoppel in that it is not necessary to show elements of reliance and injury, and judicial estoppel is based on principle that orderliness, regularity and expedition of litigation are essential to proper judicial inquiry.
9. Motor vehicles — collision — negligence — contributory negligence — jury question.
In action for death of deceased automobile passenger caused by highway collision of automobile and truck, which was three or four feet over center line into lane in which automobile was traveling at time of collision, questions whether driver of automobile was guilty of contributory negligence in driving at excessive speed and in failing to keep his automobile under control were for jury.
10. Evidence — facts control opinions and conclusions of witnesses.
Opinions and conclusions of eyewitnesses that autmobile driver did not contribute to collision of automobile and truck and was driving in normal and careful manner were not binding, and facts testified to by witnesses controlled over opinions.
Headnotes as approved by Gillespie, J.
APPEAL from the Circuit Court of Simpson County; HOMER CURRIE, Judge.
Butler, Snow, O'Mara, Stevens Cannada, Jackson; J.B. Sykes, J.W. Walker, Mendenhall, for appellants.
I. The Trial Court erred in overruling appellants' first motion for change of venue by allowing a defendant administrator to be sued within six months from date of his appointment when venue as to appellants did not otherwise exist. Reedy v. Armistead, 31 Miss. 353; Anderson v. Newman, 60 Miss. 532; Rosenthall Co. v. Enevoldsen, 61 Miss. 532; Matthews v. Redmond, 202 Miss. 253, 32 So.2d 124; Sec. 612, Code 1942; 34 C.J.S., Executors and Administrators, Sec. 729.
II. The trial Court erred in overruling appellants' second motion for change of venue because the understanding between some of the parties and some of their attorneys and the facts relative thereto constitute a legal fraud in trying to place venue in Simpson County against appellants when such venue did not otherwise exist. Trolio v. Nichols, 160 Miss. 611, 132 So. 750; Nicholson v. Gulf, Mobile Northern RR. Co., 177 Miss. 844, 172 So. 306; McRae v. Ashland Plantation Co., 187 Miss. 350; 192 So. 847.
III. The trial Court erred in overruling appellants' third motion for change of venue when plaintiff failed to introduce proof showing responsibility on the part of McRaney, Administrator. Howard v. Ware, 192 Miss. 36, 3 So.2d 830; Long v. Patterson, 198 Miss. 554, 22 So.2d 490; City of Pascagoula v. Rogers, 183 Miss. 323, 184 So. 433; Tombigbee Elec. Power Assn. v. Gandy, 216 Miss. 444, 62 So.2d 567; E.I. DuPont de Nemours Co. v. Ladner, 221 Miss. 378, 73 So.2d 249; Rowlands v. Morphis, 158 Miss. 662, 130 So. 906; Eagle Cotton Oil Co. v. Pickett, 175 Miss. 577, 166 So. 764.
Crisler, Crisler Bowling, Jackson; Russell Little, Magee, for appellee.
I. In reply to appellants' Point I. Breckenridge's Admr. v. Mellon's Admr., 1 How. 273; Reedy v. Armistead, 31 Miss. 353; Alabama V. Ry. Co. v. Joseph, 125 Miss. 460, 87 So. 421; Baker v. Sheppard, 30 Ga. 706; Leath v. Hardman, 43 Ga. App. 270, 152 S.E. 453; Barrett v. Fondren (Ala.), 80 So.2d 243; Emmett Co. v. Dekl, 132 Ga. 594, 64 S.E. 682; Farmers Natl. Bank of Danville v. First Colored Baptist Church of Danville, 277 Ky. 521, 126 S.W.2d 1130; Boynton v. Sanford, 28 N.J. Eq. 184; Pepper v. Sidwell, 36 Ohio St. 454; Hill v. Fly (Tenn.), 52 S.W. 731; Anderson v. Hunt (Tex.), 122 S.W. 344; City Central Bank Tr. Co. v. Jackson (Tex.), 45 S.W.2d 433; Sec. 612, Code 1942; 34 C.J.S., Sec. 729(6) p. 730; Griffith's Miss. Chancery Practice (2d ed.), Sec. 300; Sec. 395, 270 Ky. Rev. Stat.
II. In reply to appellants' Point II. Myers v. Vinson, 212 Miss. 85, 54 So.2d 168; Indianola Cotton Oil Co. v. Crowley, 121 Miss. 262, 83 So. 409; Daniel v. Livingstone, 168 Miss. 311, 150 So. 662; Trolio v. Nichols, 160 Miss. 611, 133 So. 207; Cox v. Dempsy, 177 Miss. 678, 171 So. 788; Weems v. Lee, 185 Miss. 98, 187 So. 531; Burgin v. Smith, 163 Miss. 797, 141 So. 761; Howard v. Ware, 192 Miss. 36, 3 So.2d 830; Long v. Patterson, 198 Miss. 554, 22 So.2d 490; Forman v. Mississippi Publishers Corp., 195 Miss. 90, 14 So.2d 490, 148 A.L.R. 469; Nicholson v. Gulf, Mobile N. RR. Co., 177 Miss. 844, 172 So. 306; McRae v. Ashland Plantations Co., 187 Miss. 350, 102 So. 874; Osborn v. Thomas, 221 Miss. 682, 74 So.2d 757; Carter v. Eastman Gardner Co., 95 Miss. 651, 48 So. 615; Metropolitan Life Ins. Co. v. Hall, 152 Miss. 413, 118 So. 826; Sec. 525, Code 1942; 21 Am. Jur., Sec. 68 p. 411; 56 Am. Jur., Venue, Sec. 31; 33 C.J.S., Sec. 41 p. 938.
III. In reply to appellants' Point III. Shearron v. Shearron, 219 Miss. 27, 68 So.2d 71; Rhodes v. Fullilove, 161 Miss. 41, 134 So. 840; Wheat v. Teche Lines, Inc., 181 Miss. 408, 179 So. 593; Collins Baking Co. v. Wicker, 166 Miss. 264, 142 So. 8; Moak v. Natchez Garden Club, 230 Miss. 377, 92 So.2d 652.
IV. Appellants were estopped to contend for a change of venue. Mississippi State Highway Comm. v. West, 181 Miss. 206, 179 So. 279; 19 Am. Jur., Secs. 72, 81 pp. 704, 726; 31 C.J.S., Sec. 118 p. 379.
V. Appellants waived their contentions under motions two and three. Howard v. Ware, supra; Indianola Cotton Oil Co. v. Crowley, supra; 56 Am. Jur., Sec. 40 p. 44.
VI. If there is reversible error, the case should be reversed only as to the individual appellant Thompson. Forman v. Mississippi Publishers Corp., supra; Nicholson v. Gulf, Mobile N. RR. Co., supra; Plummer Lewis Co. v. Franchier, 111 Miss. 656, 71 So. 907.
APPELLANTS IN REPLY.
185 Miss. 98 187 So. 531192 Miss. 363 So.2d 830
II. Appellee made no attempt to introduce evidence of liability on the part of the local defendant. Mississippi Butane Gas Systems, Inc. v. Welch, 208 Miss. 637, 45 So.2d 262.
III. Appellants are not estopped to contend for change of venue. Howard v. Ware, supra.
IV. Appellants did not waive right for change of venue under second and third motions therefor. Sec. 1433, Code 1942.
V. A corporation does have privilege of change of venue. Sec. 1441, Code 1942.
This appeal involves three questions of venue. Suit was brought in the Circuit Court of Simpson County by Mrs. Leona Barrett, administratrix of the estate of Otis Barrett, deceased, herein called plaintiff, against Great Southern Box Company, Inc. of Mississippi, a corporation domiciled in Rankin County, hereinafter called Box Company, and Box Company's servant, W.D. Thompson, a resident citizen and householder of Lowndes County, and A.W. McRaney, administrator of the estate of Sam Palmer, deceased, Palmer having died a resident citizen of Simpson County where letters of administration were granted to McRaney. The accident out of which the action arose occurred in Hinds County. The suit proceeded until plaintiff rested, at which time all defendants announced that they had no evidence. The jury returned a verdict in favor of McRaney, Administrator, and against Box Company and Thompson for $35,000. Plaintiff's deceased was riding in an automobile being driven by Sam Palmer, deceased, which vehicle was traveling west and which collided with a truck belonging to Box Company and being driven by Thompson which was traveling east. The truck cut to its left into the north lane of the highway. The vehicles collided. The point of impact was three or four feet north of the center line.
The suit was filed within six months after the appointment and qualification of McRaney, Administrator. McRaney, Administrator, did not raise the issue that he was prematurely sued. Box Company and Thompson filed a motion for change of venue in which it was contended that neither could be sued in Simpson County because neither was served with process in that county, the accident occurred in Hinds County, Box Company was domiciled in Rankin County, and Thompson was a resident householder of Lowndes County; that McRaney, Administrator, the only resident defendant in Simpson County, was sued within four days after McRaney, Administrator, was issued letters, and Section 612, Mississippi Code of 1942, provides that an administrator shall not be sued until after the expiration of six months from the date of letters of administration.
(Hn 1) The question raised by this motion is whether a codefendant of an administrator may rely on Code Section 612 on motion for change of venue when the administrator did not object to the suit being prematurely brought. The purpose of Section 612 is to allow time to the administrator to examine and understand the condition of the estate, to provide the means of paying debts, if practicable, without suit by collection of the assets; and to be advised of any demands against it which it may be necessary to defend. Ready v. Armistead, 31 Miss. 353. (Hn 2) The administrator could have had the suit dismissed as to him if he had so moved, but he did not do so; therefore, the only party for whose benefit the statute was enacted waived the right to object to the suit being prematurely brought. 34 C.J.S., Executors and Administrators, Sec. 729, p. 730. Codefendants of the administrator are afforded no benefit or protection by the statute and have no right to raise it.
The second motion of Box Company and Thompson for change of venue was grounded on the allegation that McRaney, administrator, the local defendant, agreed to serve as administrator of the estate of Sam Palmer at the request of some of the attorneys representing plaintiff who prepared the papers in connection with the appointment and qualification of McRaney as such administrator; that no property has come into the hands of McRaney, administrator; that some of the attorneys representing plaintiff prepared the answer of McRaney, Administrator, in this suit; that some of plaintiff's attorneys are representing McRaney as administrator in defending this case and in the administration proceeding. The motion charged that the joinder of McRaney, Administrator, was a legal fraud on Box Company and Thompson in attempting to confer venue in Simpson County. After the evidence was heard on this motion the trial court made a lengthy finding of fact in which he found that none of the attorneys for plaintiff were representing McRaney in this suit or in the administration of the estate of Sam Palmer, deceased.
We think Box Company and Thompson established that some of the attorneys for plaintiff arranged to have McRaney appointed as administrator of the estate of Sam Palmer, deceased, and that they did this at the instance of the mother of Sam Palmer, deceased; that there were no known assets belonging to the estate of Sam Palmer, deceased; that some of plaintiff's attorneys assisted in the preparation of the papers for the appointment and qualification of McRaney, administrator, and two of them signed McRaney's bond as administrator. The trial judge was justified in finding that none of plaintiff's attorneys thereafter represented McRaney in the administration of the Sam Palmer estate or this suit. McRaney dictated his answer in this suit in the office of plaintiff's attorneys, which was next to the office of McRaney, who is also an attorney, and who had no stenographer. Plaintiff's attorneys also gave McRaney some of the information used in preparing the answer.
(Hn 3) Appellants, Box Company and Thompson, rely on such cases as Trolio v. Nichols, 160 Miss. 611, 132 So. 750, and Nicholson v. Gulf, Mobile and Northern RR. Co., 177 Miss. 844, 172 So. 306, which involve situations where plaintiff fraudulently joined local defendants for the purpose of fixing venue. Those cases are not applicable here. Appellants' motion was properly overruled because of the provisions of the last sentence of Section 525, Code of 1942, which is: "And if such person do not apply for administration within thirty days from the death of an intestate, the court may grant administration to a creditor or to any other suitable person." One who has a cause of action against a decedent which survives the latter's death is a creditor entitled to administration. 33 C.J.S., Executors and Administrators, Sec. 41, p. 938. Much more than thirty days had elapsed from the date of Sam Palmer's death before McRaney was appointed administrator. (Hn 4) The purpose of Code Section 525 was to provide a method for one having a claim against an estate to see to the prompt and proper administration of the estate. A creditor has a proper interest in the administration of the estate. (Hn 5) It follows that if a creditor may be appointed administrator of the estate of a deceased person, there is nothing improper in the attorneys for the creditor to actively participate in securing the appointment and qualification of another. If the creditor, or one who has a claim against the estate such as the plaintiff in this case, could not see to it that someone qualify as administrator, the plaintiff could not prosecute her claim.
(Hn 6) Now it should be said that if there had been a fraudulent agreement between plaintiff's attorneys and McRaney, administrator, such as, for instance, that plaintiff would not attempt to secure or collect the judgment against the estate, we would have another matter. But in this case there is no proof of any such fraudulent or collusive scheme. It is quite obvious that plaintiff's attorneys desired to have an administration so that the estate of Sam Palmer, deceased, could be sued in Simpson County and thus draw the Box Company and Thompson into the Circuit Court of Simpson County; but the right of the plaintiff to choose the venue of an action within the provisions of the venue statutes are just as valuable and important to her as are the venue rights of the defendants.
The Box Company and Thompson filed a third motion for change of venue at the conclusion of plaintiff's case. It was charged in this motion that plaintiff wholly failed to offer any evidence tending to prove any negligence on the part of Sam Palmer, deceased, but on the other hand, plaintiff's evidence showed conclusively that Sam Palmer, deceased, was guilty of no negligence proximately contributing to the collision involved in the suit. Movants alleged that the sole and only purpose of joining McRaney, Administrator, as a defendant in the suit was to destroy the venue rights of Box Company and Thompson, and that this constituted a legal fraud.
There are two reasons why this motion was properly overruled by the trial court. Either is sufficient without the other.
(Hn 7) First: In their answer to the declaration filed by plaintiff, Box Company and Thompson denied that either of them were guilty of any negligence which proximately contributed to the collision involved in the case. These defendants affirmatively alleged in their answer that the sole and only proximate cause of said collision was the carelessness and negligence of the driver of the car in which plaintiff's deceased was riding, that is to say, the negligence of Sam Palmer. The answer stated the facts which they alleged constituted negligence on the part of Sam Palmer, and this substantially agreed with the charges of negligence made against Palmer by plaintiff in her declaration. This position was never changed, the answer was not amended or withdrawn. The Box Company and Thompson, in their answer, based their defense on the factual assertion that the collision was caused solely by the negligence of Sam Palmer. May they withhold the evidence they had to establish that fact — they certainly had such evidence else they would not have made the allegation — and nullify the proceedings by obtaining a change of venue? We hold they cannot. Not that we hold they should have offered such proof, but that they cannot assume an inconsistent position in the same proceeding. The Box Company and Thompson cannot be heard to say on the one hand that they were not liable because Palmer was solely responsible for one purpose of the suit, and, without withdrawing or amending that position, say in the same judicial proceeding, for another purpose, that not Palmer but they were solely responsible for the collision. (Hn 8) This is not estoppel in the strict sense of that term. It is denominated judicial estoppel which differs from equitable estoppel in that it is not necessary that to show the elements of reliance and injury. It is based on the principle that orderliness, regularity and expedition of litigation are essential to a proper judicial inquiry. 31 C.J.S., Estoppel, Sec. 117, p. 378.
(Hn 9) Second: We cannot agree that plaintiff's proof failed to make a jury question as to whether Sam Palmer was guilty of negligence which proximately contributed to the collision. There were three eye witnesses to the accident who testified for plaintiff. Their testimony was that Sam Palmer was driving between 55 and 60 miles an hour one-quarter of a mile inside the corporate limits of Clinton; that he skidded straight down his side of the highway fifty feet to the point of impact; the photographs and the testimony as to the side marks were sufficient to show that the car Palmer was driving knocked the Box Company truck over towards the south, then scratched up the ground and ran over a 30-mile speed limit sign; that there was ample room on the shoulder and the balance of the north half of the pavement not occupied by the truck for Palmer to have passed the truck without any collision. The jury would have been fully justified in finding that Palmer was guilty of the negligence charged against him by the plaintiff in her declaration and by the Box Company and Thompson in their answer, namely, excessive speed, and failure to keep his car under control. (Hn 10) It is true that the eye witnesses all stated that Palmer did nothing to contribute to the accident and was driving in a normal and careful manner; but such opinions and conclusions of a witness bind no one. The facts control over opinions such as given by these witnesses.
No other questions were raised.
Affirmed.
All Justices concur, except Kyle, J., who took no part.