White v. Shipley et al., 48 Utah 496.

in excess of the value of its use, he may, as between himself and his cotenants, as pointed out in McCready v. Fredericksen, supra, be reimbursed therefor. Upon the other hand, if we should err in giving him exclusive title, his cotenants would be without any redress whatever.

1.

WHITE v. SHIPLEY et al.

No. 2879. Decided October 7, 1916. (160 Pac. 441.)

CORPORATIONS-PLEADING EXISTENCE-NECESSITY OF PROOF. The averment in the complaint that defendant is a corporation is an issuable averment, and when put in issue must be proved. (Page 497.)

2. JOINT-STOCK COMPANIES-SUING COMPANY AS CORPORATIONPLEADING. Comp. Laws 1907, section 2927, as amended by Laws 1911, c. 58, providing that persons associated in business as a joint-stock company, a partnership or other association not a corporation, under a common name, may be sued by such common name, does not relieve plaintiff, suing defendant as a corporation, of the necessity of proving its corporate existence, though the answer allege it to be a joint-stock company. (Page 497.)

3.

4.

PLEADING CURE OF COMPLAINT BY ANSWER-CORPORATE EXISTENCE. Averment in the complaint, of corporate existence of defendant, is not a misnomer, which is cured by the answer alleging it to be a joint-stock company, under the rule that incomplete or defective averments in a complaint of corporate existence are cured by admissions or averments in the answer of corporate existence. (Page 497.)

TRIAL INSTRUCTIONS-CONFORMITY TO EVIDENCE-DAMAGES. Under the rule that an element of damages on which there is no evidence to support it should not be submitted to the jury, the children of deceased being all adults, from thirty-one to fortyeight years old, married and maintaining separate homes, apart from deceased, loss of comfort, society, and companionship of deceased by them should not be submitted; damages for such loss being awarded only in a pecuniary sense, and not as

Appeal from Second District.

a solatium, and such pecuniary loss by them being at most only nominal.1 (Page 499.)

TER.

5. MUNICIPAL CORPORATIONS-ANSWER-NEW OR AFFIRMATIVE MATThat because of excavations in the middle of the street, in which defendants drove into a person, they drove to the left to deliver a package to a building in the block on that side, is not new or affirmative matter, required to be alleged in the answer, but may be shown under the general issue. (Page 501.) 6. MUNICIPAL CORPORATIONS-PERSONAL INJURY-DRIVING ON WRONG SIDE OF STREET. One merely driving a team on the wrong side of the road in violation of an ordinance is not negligent as matter of law; but whether doing so constitutes negligence depends on the facts and circumstances, and generally is a question of fact and not of law. (Page 502.)

Appeal from District Court, Second District; Hon. N. J. Harris, Judge.

Action by Caroline White, administratrix of William White, deceased against James Shipley and another.

Judgment for plaintiffs. Defendants appeal.

REVERSED.

Williams & Williams, for appellants.

Joseph Chez, A. W. Agee, and David L. Stine, for respond

ent.

STRAUP, C. J.

This action was brought to recover damages for alleged negligence causing the death of plaintiff's intestate. She had judgment against both defendants, from which both appeal. In the complaint it is alleged:

"That the defendant the American Express Com- 1, 2, 3 pany is a corporation doing business in the State

'Candland v. Mellen, 46 Utah 519, 151 Pac. 341.

2 Smith v. Ogden & N. W. R. Co., 33 Utah 129, 93 Pac. 185. Smith v. Mining, etc., Co., 32 Utah 21, 88 Pac. 683; Rogers v. Railroad, 32 Utah 376, 90 Pac. 1075, 125 Am. St. Rep. 876; Jensen v. Utah Light & Ry. Co., 42 Utah 415, 132 Pac. 8.

Vol. 48-32

White v. Shipley et al., 48 Utah 496.

of Utah under and by virtue of the laws of said State and was at all times herein alleged."

Each of the defendants, in separate verified answers, denied:

"That the American Express Company is a corporation doing business in the State of Utah, but alleges that it is an unincorporated stock association organized under and by virtue of the laws of the State of New York."

Upon this, among other issues, the case proceeded to trial and judgment. No proof whatever was made or offered that the express company was a corporation. Notwithstanding the defendants, timely and at their first appearance in the case, and seven months prior to the time of trial, specifically and under oath denied that the express company was a corporation and specifically averred that it was an unincorporated stock association, and at the close of the evidence the express company separately moving for a directed verdict in its favor upon the specific ground, among others, for want of proof to support the allegation that the express company was a corporation, the plaintiff, nevertheless, paid no attention to this issue and proceeded to judgment as though the allegation in the complaint of corporate existence had been admitted. The averment is an issuable averment and must be proved when properly raised by the pleadings. Sutherland's Code Pleading, Section 551; 5 Standard Ency. Pro. 645; Martin v. Deetz, 102 Cal. 55, 36 Pac. 368, 41 Am. St. Rep. 151. It here was properly put in issue. C. L. 1907, Section 3000. To prevail the burden was on the plaintiff to prove the corporate existence. The distinction between a corporation and an unincorporated stock association organized under the laws of New York is shown by the following cases: Matter of Jones, 172 N. Y. 575, 65 N. E. 579, 60 L. R. A. 476; Hibbs v. Brown, 112 App. Div. 214, 98 N. Y. Supp. 353, 190 N. Y. 167, 82 N. E. 1108. The respondent says that because of C. L. 1907, Section 2927, and as amended by Laws of Utah, 1911, c. 58, she was not required to prove the averment, but was entitled to rely, as she did, upon the averment in the answer that the express company was an unincorporated stock company and to proceed to judgment accordingly. That section provides that

Appeal from Second District.

when two or more persons associated in business, either as a joint-stock company, a partnership or other association not a corporation transacting business under a common name, they may be sued by such common name. But the plaintiff did not sue the express company as a joint-stock company, a partnership, or other association not a corporation. She sued it as a corporation. She does not help herself by pointing to something she might have done, but did not do. Then she further says that her averment of corporate existence was a misnomer, which was cured by the answer. That position, likewise, is untenable. Michigan Ins. Bank v. Eldred, 143 U. S. 293, 12 Sup. Ct. 450, 36 L. Ed. 162. The cases cited by her (St. Louis & S. F. Ry. Co. v. Wilhelm, 49 Tex. Civ. App. 639, 108 S. W. 1194; First Nat. Bank v. Schmidt, 6 Colo. App. 216, 40 Pac. 479; Pearce v. Butte El. Co., 41 Mont. 304, 109 Pac. 275; Storer v. Graham, 43 Mont. 344, 116 Pac. 1011; Davidson v. La Clede Land & Imp. Co., 253 Mo. 223, 161 S. W. 686) do not support her contention. They are to the effect that incomplete or defective averments in a complaint of corporate existence are cured by admissions or averments in an answer of corporate existence. But that is another question, and does not reach the one in hand.

4

The only beneficiary alleged in the complaint is the administratrix, the widow of the deceased. The defendants, however, on cross-examination of the widow, showed that the deceased left children, but that they were all adults and married, and for a long time prior to the death of the deceased had lived separate and apart from him, who, at the time of his death, was seventy-two years of age. Among other things the court, on damages, charged:

"In determining the amount to be awarded to the plaintiff, in case you find a verdict in her favor, you may also take into consideration the loss of comfort, society, and companionship of said deceased, if any, which the plaintiff, his widow and his children have sustained by reason of his death."

Complaint is made of this. It is conceded that as an abstract proposition the charge is not a misstatement of the law.

It, however, is contended that it is here erroneous because it was not alleged in the complaint that the deceased left any

White v. Shipley et al., 48 Utah 496.

children, and, further, because not applicable to the evidence. It was indisputably shown that the children, two sons, one forty, the other forty-six, years of age, and five daughters, the youngest thirty-one, and the eldest forty-eight years of age, were all married and had lived separate and apart from the deceased, some in Los Angeles, Cal., some in Salt Lake City, and some in Ogden City where the deceased resided. In an action brought by an administrator to recover damages for the wrongful death of another it is essential to aver that there are beneficiaries or persons entitled under the statute to the benefit of the recovery. Such a person (the widow) was alleged. Since, without objection and by the defendants themselves, it was shown that the deceased also left children, it is not necessary now to decide where some such beneficiaries are alleged whether others not alleged may, without an amendment to the complaint, also be shown and their loss considered and damages awarded for it. So, in determining the damages which the administratrix in her representative capacity was entitled to recover, we, under the circumstances, shall assume that she was entitled to recover for all of the beneficiaries shown by the evidence to have sustained pecuniary loss. But in so considering the matter we are of the opinion error was committed in directing the jury, as was done, that in determining the loss or damage which the children sustained the jury could consider the loss of comfort, society, and companionship. There is no doubt that under the holdings of this court such a charge is proper in a case where there is evidence to show such loss. But here there is no evidence, so far as the children are concerned, to show it. As already shown, the children were all adults from thirty-one to forty-eight years of age, married and maintaining separate homes, and for a long time had lived separate and apart from the deceased. The law awards damages for loss of comfort, society, and companionship only in a pecuniary sense and not as a solatium. Under the circumstances such pecuniary loss sustained by the children at most was but nominal. Indeed, except mere nominal, it is not made to appear that the children sustained any pecuniary loss whatsoever. They received none of the deceased's earnings, nor did he otherwise