Castle v. Lockwood-MacDonald Hospital

• Decision Date: 24 May 1972
• Docket Number: No. 3,Docket No. 10318,LOCKWOOD-M,3
• Citation: 199 N.W.2d 252,40 Mich.App. 597
• Parties: Emma CASTLE, as personal representative of the Estate of Stanley B. Castle, Deceased, Plaintiff-Appellant, v.acDONALD HOSPITAL, a Michigan non-profit corporation, Gerald A. Drake, M.D. and other unknown persons, Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 252

199 N.W.2d 252

40 Mich.App. 597

Emma CASTLE, as personal representative of the Estate of Stanley B. Castle, Deceased, Plaintiff-Appellant, v. LOCKWOOD-MacDONALD HOSPITAL, a Michigan non-profit corporation, Gerald A. Drake, M.D. and other unknown persons, Defendants-Appellees.

Docket No. 10318.

Court of Appeals of Michigan, Division No. 3.

May 24, 1972.

Released for Publication July 27, 1972.

James D. Dreyer, Dreyer & Porter, Gaylord, for plaintiff-appellant.

Clare L. Gillett, Petoskey (for hospital), Nathaniel W. Stroup (for Drake), Clark, Stroup, Brown & MacKenzie, Petoskey, for defendants-appellees.

Before FITZGERALD, P.J., and R. B. BURNS and TARGONSKI, ^* JJ.

TARGONSKI, Judge.

This case involves a wrongful death action. The deceased was a patient in the intensive care room on one of the upper floors of the defendant Lockwood-MacDonald Hospital. During the night of May 17, 1967, the deceased fell or jumped to death from a window in the room. Thereafter, the following sequence of events transpired.

On May 14, 1970, pursuant to her petition, Emma Castle, widow of the deceased, was appointed special administratrix of her husband's estate by the Otsego County Probate Court. ¹ Then, on May 15, 1970, Emma Castle, as personal representative of the estate, commenced a wrongful death action in the Emmet County Circuit Court against the defendants, alleging: that the defendant hospital was negligent in maintaining in the room an open, low-silled window without any screen or bar, and without proper observation of the deceased; that defendant Dr. Drake, the deceased's personal physician, failed to exercise due care and skill in allowing Mr. Castle to be placed in a dangerous location, next to an open, unguarded window, and in failing to remove the deceased from the room or requiring the correction of the dangerous condition.

On May 16, 1970, service of process was made on both the defendant hospital and the defendant doctor.

Subsequently, on May 21, 1970, Dr. Drake filed a motion for accelerated judgment pursuant to GCR 1963, 116.1(5) claiming the plaintiff's action is barred by the two-year statute of limitations for actions charging malpractice.

On June 3, 1970 the defendant hospital filed a motion for accelerated judgment pursuant to GCR 1963, 116.1(1), (2), and (5), claiming the circuit court lacked jurisdiction of the person of the defendant, the subject matter, and that the alleged claim was barred by the statute of limitations. Following this motion, the defendant hospital then filed an amended motion on June 5, 1970, for accelerated judgment adding as a ground GCR 1963, 116.1(3), that the plaintiff lacked the legal capacity to sue. The defendant hospital specifically relied on the records of the probate court for the County of Otsego which show: that even though Emma Castle was appointed special administratrix on May 14, 1970, the reason for the appointment being, 'the chief asset of said estate is a cause of action for the death of said deceased, upon which the Statute of Limitations shortly runs,' that at no time before the filing of the motion for accelerated judgment was an order entered by the probate court granting the special administratrix authority to institute this lawsuit.

Following this motion, on June 11, 1970, Otsego County Probate Judge Boyd C. Baird entered an order reading:

'That on May 14, 1970 a petition for appointment of special administrator was filed in this court on the above captioned matter. That on that date Emma Castle was appointed special administrator.

'That at the time of filing the aforesaid petition it was expressly indicated to this court and understood by this court that the sole reason for the appointment of said special administrator was for the purpose of instituting suit for the wrongful death of the deceased, upon which cause of action the statute of limitations would shortly run.

'That it was the express purpose of this court in appointing the special administratrix that she take legal action pending the appointment of a general administrator.

'IT IS ORDERED that the said Emma Castle specifically institute suit on the cause of action for wrongful death of the decedent.

'IT IS FURTHER ORDERED that such order shall be effective Nunc pro tunc as of May 14, 1970.'

Then on June 15, 1970, Judge Baird appointed Emma Castle general administratrix of her husband's estate.

Finally, in a written opinion dated August 31, 1970 Emmet County Circuit Judge Edward H. Fenlon made the following five findings:

'(1). That Emma Castle as personal representative of the Estate of Stanley B. Castle, deceased, at the time of instituting the said action on May 15, 1970, was without the capacity to sue. That her authority was limited as provided by MCLA 702.61 (MSA 27.3178(131)).

'(2). That the Nunc pro tunc order of the Probate Court for the County of Otsego issued on June 11, 1970, following defendants' motion for accelerated judgment, was and is invalid.

'(3). That as to defendant Lockwood MacDonald Hospital, the statute of limitations applicable to this action was three years from the date the cause of action arose, or from May 17, 1967, the statute thus having run on May 17, 1970. MCLA 600.5805(7) (MSA 27A.5805(7)). That on said date, plaintiff was without capacity to sue and the said order of June 11, 1970, did not toll the statute.

'(4). That as to defendant, Gerald A. Drake, M.D., if plaintiff's action is predicated on the theory of ordinary negligence, the three-year statutes and findings above noted are applicable.

'(5). That if the said action is one alleged malpractice, the statute of limitations is two years, MCLA 600.5805(3) (MSA 27A.5805(3)) from May 17, 1967, or if plaintiff's allegation of concealment is accepted, the statute commenced running on June 6, 1967, and expired on June 6, 1969.'

In conformance with his findings, on September 9, 1970, Judge Fenlon ordered that each of the defendants' motions for accelerated judgment be granted and the cause dismissed with prejudice. Thereafter, plaintiff took this appeal.

Plaintiff's first argument is that as special administratrix, even though she failed to procure the proper court order, she had the capacity to sue in this wrongful death action. Plaintiff advances three separate theories for this proposition. First, that her failure to procure the order could not be collaterally attacked in a wrongful death action. Second, that the Nunc pro tunc order ² of the probate court was valid as such and not subject to collateral attack. Third, that the Nunc pro tunc order ³ was a valid order which effectively 'related back' to her appointment as special administratrix apart from the concept of Nunc pro tunc. On account of the merits found in this last argument, we find it unnecessary to consider the merits of the first two contentions. Our analysis follows.

On May 14, 1970, plaintiff was validly appointed special administratrix in accordance with M.C.L.A. § 702.60; M.S.A. § 27.3178(130). However, as plaintiff concedes, M.C.L.A. § 702.61; M.S.A. § 27.3178(131) calls for a special administrator to obtain an order of the probate court before commencing actions and that such an order was not obtained in this case before the statute of limitation applicable to wrongful death actions expired. ⁴ M.C.L .A. § 702.61; M.S.A. § 27.3178(131) reads as follows:

'Such special administrator appointed according to the provisions of the preceding section (MCLA 702.60; MSA 27.3178(130)) shall collect all the goods, chattels and debts of the deceased, and preserve the same for the executor or administrator who may afterwards be appointed, and for that purpose, Upon order of the probate court, may commence and maintain actions as an administrator, and may sell such perishable and other personal estate as the probate court may order to be sold. All personal actions, the cause of which does by law survive and which may be pending either for or against the deceased, may be proceeded with and be prosecuted by or against such special administrator, and the same proceedings taken as are or may hereafter be provided by law relating to such actions in cases where an executor or general administrator has been appointed.' (Emphasis Added.)

Plaintiff contends that even though such an order of the probate court authorizing the commencement of this wrongful death action was not obtained prior to the apparent running of the statute of limitation on May 17, 1970, the June 11, 1970 order of the probate court granting permission 'related back' to the date of appointment on May 14, 1970, so as to cure any defects subsequent to that appointment.

The doctrine of 'relation back' is not new. It is generally applied in the following situation:

'(W)henever letters of administration or testamentary are granted, they relate back to the intestate's or testator's death, and all previous acts of the representative that were beneficial in their nature to the estate, and that were in their nature things that he could have performed had he been duly qualified at the time, are validated.' 31 Am.Jur.2d, Executors and Administrators, § 162, p. 94.

Further, in a great majority of the cases in this country when the doctrine of 'relation back' has been considered, it has been held that such an appointment made after the statute of limitation has run against a claim will relate back to validate actions taken on the claim within the statutory period by the person subsequently appointed administrator thus barring reliance upon the defense of limitations by the party against whom the claim is asserted on behalf of the estate. Such result has been reached in wrongful death actions. Kiley v. Lubelsky, 315 F.Supp. 1025 (D.C.1970). See 3 A.L.R.3d 1234. The apparent reason for the application of the doctrine of relation back as a means of defeating the defense of the statute of limitation is the desire of the courts not to have valid claims avoided by legal...