George H. BRAINARD, Appellant,
Charies N. WALTERS, as Administrator of the Estate of Neil R. McLeod, deceased, Appellee.
Rehearing Denied Nov. 28, 1958.
Mallamo & Parry, of Phoenix, for appellant.
Kramer, Roche & Perry, of Phoenix, for appellee.
So far as necessary for a solution of the problem presented by this appeal, the facts are that there was a collision between an automobile owned and operated by appellant George H. Brainard and a car being driven by one Neil R. McLeod resulting in McLeod's death and damage to Brainard's car. Without presenting any claim to the appellee, Charles Walters, administrator of McLeod's estate, and after the statutory time for the presentation of claims had expired, the appellant filed suit against the administrator for damages to his automobile alleging negligence of decedent in the operation of his car. Upon the administrator's motion the complaint was dismissed. Brainard appeals.
[85 Ariz. 61] Concededly, except for the failure to allege the presentation of a claim to the administrator prior to filing suit, the complaint states facts that would, if proven, warrant relief. Consequently the only problem for solution is whether one having a claim based on a tortious act of the character alleged in this complaint is barred unless a claim is filed with the administrator as required by the statute.
An answer to the question calls for an interpretation of sections 14-570, 14-577 and 14-576, A.R.S. These sections so far as applicable read:
'A. All claims arising upon contracts, whether due, not due or contingent, shall be presented to the executor or administrator within the time limited in the notice to creditors, and any claim not so presented is barred forever, * * *.'
'The holder of a claim against an estate shall not maintain an action thereon unless the claim is first presented to the executor or administrator, * * *.'
'If an action is pending against decedent at the time of his death, plaintiff shall in like manner present his claim
to the executor or administrator for allowance or rejection as required in other cases. No recovery shall be had in the action unless proof is made of the presentation.'
Appellant says that these statutes properly construed apply only to claims arising upon contract and have no application to unliquidated tort claims. Appellee argues to the contrary that all claims liquidated or unliquidated (with exceptions not material in the instant case) are barred unless presented to the administrator within the prescribed time for presentation of creditors' claims.
We have no case from this jurisdiction exactly in point but so far as we have been able to discover, other jurisdictions with the same statutory provisions have ruled that the statute only applies to claims arising upon contract and there is no necessity of presenting to the administrator claims founded on the tortious act of the decedent. National Automobile & Casualty Ins. Co. v. Ainge,34 Cal.2d 806, 215 P.2d 13; Hornbeck v. Richards,80 Mont. 27, 257 P. 1025; Becker v. ...