Fox v. Ungar

• Decision Date: 30 January 1940
• Citation: 98 P.2d 717,164 Or. 226
• Parties: FOX <I>v.</I> UNGAR ET AL.
• Court: Oregon Supreme Court

164 Or. 226

98 P.2d 717

FOXv.

UNGAR ET AL.

Supreme Court of Oregon.

Argued January 10, 1940.

Affirmed January 30, 1940.

Rehearing denied April 16, 1940.

Pleading — Amended complaint

1. When an amended complaint is filed and served, original complaint ceases to perform any function as a pleading but is not superseded by the amended complaint for all purposes, and original may be considered as part of record for purpose of showing when action was commenced, and whether a new or different cause of action was introduced by amendment upon hearing of a demurrer raising such questions.

Limitation of actions — Pleading — Complaint

2. An amended complaint based upon the same cause of action as set forth in original complaint relates back to date upon which original complaint was filed, as respects statute of limitations.

Death — Cause of action

3. The cause of action asserted in an action by an administrator under the death by wrongful act statute is not the same as the cause asserted in an action by a beneficiary under the Employers' Liability Act, since action by administrator is for benefit of estate, whereas action under Employers' Liability Act is for exclusive benefit of beneficiary named in the act.

Death

4. Where a death action may be maintained under the Employers' Liability Act, and one of the beneficiaries named in the act is living and in position to bring the action, an action will not lie when brought by personal representatives of deceased under the death by wrongful act statute.

Limitation of actions — Pleading — Complaint

5. Where deceased's administrator had filed a complaint under death by wrongful act statute, the filing of an amended complaint by deceased's mother more than two years after death of deceased, alleging a cause of action based on defendant's asserted violation of Employers' Liability Act, was the "commencement of a new action" which did not relate back to date original complaint was filed, and hence was barred by limitations.

                  See 16 Am. Jur. 179
                  17 C.J., Deaths, § 106
                

Department 2.

Appeal from Circuit Court, Multnomah County.

LOUIS P. HEWITT, Judge.

Action by Samuel F. Fox, as administrator of the estate of Paul Fox, deceased, against N.M. Ungar and others for the death of Paul Fox, wherein, after the administrator's motion for leave to file an amended complaint and to have Helen Fox substituted as plaintiff was granted, Helen Fox filed an amended complaint against the same defendants. From a judgment dismissing the action, Helen Fox appeals.

AFFIRMED. REHEARING DENIED.

Wm. P. Lord, of Portland (T. Walter Gillard and Francis F. Yunker, both of Portland, on the brief), for appellant.

Eugene K. Oppenheimer and Frank C. Howell, both of Portland (Wilbur, Beckett, Howell & Oppenheimer, of Portland, on the brief), for respondents M.F. Patterson Co. and Manning's, Inc.

L.A. Recken, of Portland, for respondent N.M. Ungar.

F.S. Senn, of Portland (Wm. H. Morrison, of Portland, on the brief), for respondent Ice Delivery Co.

RAND, C.J.

On October 8, 1936, Paul Fox, an employee of the M.F. Patterson Dental Supply Company, died as the result of injuries received while engaged in operating, for his employer, a freight elevator in the sidewalk adjoining the Ungar building in the city of Portland. All the defendants, except N.M. Ungar who is the owner of the building, are tenants of the owner and, together with such owner, have access to and use the elevator in moving their merchandise and supplies to and from the basement of the building. Samuel F. Fox was appointed as administrator of decedent's estate and, as such administrator, commenced an action against the above named defendants to recover for the benefit of the estate the damages suffered by decedent's death. The action was brought under section 5-703, Oregon Code 1930, which provides:

"When the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action at law therefor against the latter, if the former might have maintained an action, had he lived, against the latter, for an injury done by the same act or omission. Such action shall be commenced within two years after the death, and damages therein shall not exceed $10,000, and the amount recovered, if any, shall be administered as other personal property of the deceased person."

After that case had been put at issue and a jury had been impaneled and sworn to try the cause, but before any testimony had been taken therein, the plaintiff-administrator moved for leave to file a second amended complaint and to have Helen Fox, the mother of the decedent, substituted as plaintiff therein. This motion was granted over the objection and exception of the defendants and the jury was thereupon discharged and the cause continued.

Nothing thereafter seems to have been done in the case until October 21, 1938, which was more than two years after the death of the decedent, when an amended complaint was filed by the present plaintiff, Helen Fox, as the plaintiff in the action and against the same defendants, in which she alleged, in substance, that she was the mother of the decedent, that he was nineteen years of age at the time of his death, and that it was the duty of the defendants, under the Employers' Liability Act (sections 49-1701 to 49-1706, Oregon Code 1930), to equip the elevator with proper devices for protection of the operators thereof, and that this duty the defendants failed to perform, and that, by reason thereof, the decedent sustained the injuries which caused his death to her damage in the sum of...