This is an appeal by the defendants from a final judgment rendered on a jury verdict awarding damages for the wrongful death of appellee's intestate. The suit was styled "Kenneth Ivey, as Administrator of the Estate of Evelyn R. Ivey, deceased, plaintiff, versus L. M. Prestwood, Morris Prestwood and Clayton Prestwood, partners doing business as Prestwood Chair Company, and Willie Ray Reardon, defendants." The complaint, as last amended, consisted of two counts, both charging negligence. In answer to the complaint, and each count thereof, the defendants entered pleas of "the general issue, not guilty," and "in short by consent the general issue, with leave to give in evidence any matter which if well pleaded would be admissible in defense of this action, and to have effect as if so pleaded, and with like leave to the plaintiff to give in evidence any matter which if well pleaded would be admissible in reply to any plea of defendants and to have effect as if so pleaded." Defendants' motion for a new trial was overruled.
This is a companion case to that of L. M. Prestwood, et al. v. A. C. Ivey, as Administrator, 273 Ala. 281, 138 So.2d 713. Appellee's intestate was killed in the same accident involved in that case. The evidence in the two cases appears to be essentially the same and the questions in the instant case, except in one particular, were adequately disposed of in the other case.
The unresolved question concerns the failure of the administrator to affirmatively prove his appointment. No point as to this was brought to the attention of the trial court in any way and there was no contest or issue made in the trial court with respect thereto. In fact, in the trial court's oral charge it was stated that "Mr. Ivey here is the personal representative, that is what we call administrator." The question, being raised for the first time on this appeal, comes too late.
What was said in Southern Railway Company v. McCamy, 270 Ala. 510, 120 So.2d 695, is dispositive of the question. That case was a wrongful death action brought by an administratrix, and the defendant's plea was the general issue in short by consent. In that case the evidence clearly showed that the widow of the deceased, as his sole dependent, had the capacity to bring the suit and not the administratrix. Appellants there contended that "they were entitled to the affirmative charge because this suit was brought by one who had no authority to institute or maintain the action." The following from the McCamy case is equally applicable here, viz:
We have held that "[t]he rule in this jurisdiction in actions at law is that, unless the capacity in which the plaintiff sues is denied by special plea, this fact need not be proved." Hicks v. Biddle, 218 Ala. 2, 4, 117 So. 688; Espalla v. Richard & Sons, 94 Ala. 159, 162-163, 10 So. 137; Clarke v. Clarke's Adm'r, 51 Ala. 498, 499. Here, there was no separate special plea denying the capacity in which plaintiff sued and, even though such a plea was available under the plea in short by consent, the defense of want of plaintiff's capacity was not made an issue in the trial court, and cannot be raised for the first time on this appeal. Southern Railway Company v. McCamy, 270 Ala. 510, 514, 120 So.2d 695.
Reversible error not appearing in any of the grounds relied on, the judgment appealed from is due to be affirmed.
Original opinion further extended on second application for rehearing.
LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur.