PRACTICE AND PROCEDURE-CROSS CLAIM FOR WRONGFUL DEATH IN AN ACTION AGAINST DECEDENT'S ESTATE

Plaintiff's truck, driven by an agent, was involved in a collision with an automobile driven by defendants' intestate. The driver of the automobile was killed and plaintiff brought a damage action against his administrators. The trial court disallowed a cross claim brought by the administrators for the benefit of statutory beneficiaries. This cross claim was prosecuted under the wrongful death act and under a statute which permitted a defendant in a tort action to file a cross claim for damages arising out of the same transaction.

Plaintiff objected to the cross claim on the ground that it was prosecuted by defendants in a different capacity than that in which they were sued. On review, held, reversed. The cause of action pursued in the cross claim was the same as the decedent would have had had he lived, and it was the purpose of the cross claim statute to permit questions of fault to be decided in one suit without circuitous approach or delay. Hoffman v. Stuart, 188 Va.

785, 51 S.E. (2d) 239 (1949).