Glenn v. E. I. DuPont De Nemours & Co.

• Decision Date: 01 April 1970
• Docket Number: No. 19034,19034
• Citation: 174 S.E.2d 155,254 S.C. 128
• Court: South Carolina Supreme Court
• Parties: Mrs. Dorothy R. GLENN, Administratrix of the Estate of Carl Glenn, Respondent, v. E. I. DuPONT DE NEMOURS & CO., Inc., Appellant.

Page 155

174 S.E.2d 155

254 S.C. 128

Mrs. Dorothy R. GLENN, Administratrix of the Estate of Carl Glenn, Respondent, v. E. I. DuPONT DE NEMOURS & CO., Inc., Appellant.

No. 19034.

Supreme Court of South Carolina.

April 1, 1970.

C. T. Wyche and David L. Freeman, of Wyche, Burgess, Freeman & Parham, Greenville, for appellant.

Abrams, Bowen & Townes, Greenville, for respondent.

MOSS, Chief Justice.

Carl Glenn, while an employee of Dunean Mill, died on July 2, 1961, as a result of an injury by accident arising out of his employment. After appeal to this court, full death benefits under the Workmen's Compensation Act were paid to the wife and dependent children. Glenn v. Dunean Mills, 242 S.C. 535, 131 S.E.2d 696.

It appears from the record that Dorothy R. Glenn, the widow of Carl Glenn, was on July 24, 1961, appointed by the Probate Court of Greenville County as the administratrix of the estate of the deceased. It further appears that on January 8, 1962, Dorothy R. Glenn, administratrix as aforesaid, filed her final return and accounting with the Probate Court for Greenville County and asked for her discharge as such administratrix. After due advertisement, the Probate Court for Greenville County, on February 19, 1962, forever discharged Dorothy R. Glenn as administratrix of the estate of Carl Glenn.

On January 5, 1967, this action was instituted to recover damages from E. I. DuPont De Nemours & Co., Inc., the appellant herein, for the wrongful death of her husband. In her complaint she alleged that 'she is the duly appointed administratrix of the estate of her deceased husband, Carl Glenn.' The appellant here demurred to the complaint on the ground of improper joinder of two causes of action. The lower court overruled the demurrer and an appeal to this court followed. The decision of the trial judge was affirmed in result. Glenn v. E. I. DuPont De Nemours & Co., 250 S.C. 323, 157 S.E.2d 630.

Following the decision of this court, the appellant, on November 20, 1967, moved to strike: (1) the complaint as sham and frivolous, (2) the caption of the complaint reading 'Mrs. Dorothy R. Glenn, administratrix of the estate of Carl Glenn'; and (3) that part of the complaint reading 'that she is the duly appointed administratrix of the estate of her deceased husband, Carl Glenn.' The basis of the foregoing motion was that Mrs. Dorothy R. Glenn was not, in fact, the administratrix at the time of the commencement of this action and had no been such representative since her discharge as aforesaid. The appellant further based its motion on the ground that there was no legal entity in existence authorized or empowered to commence or maintain this action and that such action was a nullity.

The respondent filed a motion for an order permitting her reinstatement as administratrix of the estate of Carl Glenn, Nunc pro tunc, so as to cure the claimed defect by the appellant. In this connection it appears that the respondent procured an order from the Judge of Probate for Greenville County purporting to vacate and set aside the discharge granted Dorothy R. Glenn on February 19, 1962.

It further appears that on November 22, 1967, Dorothy R. Glenn applied for her appointment as administratrix De bonis non of the estate of Carl Glenn. After due advertisement she was so appointed on December 14, 1967.

The several motions came on to be heard before The Honorable Wade S. Weatherford, Jr., Presiding Judge, and on March 14, 1968, he issued an order in which he held, Inter alia, that the order of the probate court reinstating Dorothy R. Glenn as administratrix of the estate of Carl Glenn, Nunc pro tunc, was ineffective. However, he held that the fact that she had been discharged as administratrix at the time this action was instituted was not fatal to the action and allowed an amendment to the complaint, on his own motion, so as to make her as administratrix De bonis non, the party plaintiff. The trial judge, in his order, made several other rulings which we do not think it necessary to state. This appeal is from the aforesaid order.

We can dispose of this appeal by deciding the question of whether the trial judge erred in holding that the appointment by the Probate Court, on December 14, 1967, of the respondent as administratrix De bonis non was retroactive to January 5, 1967, and that such administratrix be substituted for the nonexistent administratrix at the time the action was commenced.

This action to recover damages for the wrongful death of Carl Glenn was brought pursuant to Section 10--1951 Et seq., and Sections 72--124 and 72--126 of the 1962 Code of Laws of South Carolina, for the benefit of Liberty Mutual Insurance Company, by reason of the payment in behalf of Dunean Mill of the maximum benefit paid under the Workmen's Compensation Act for the death of Carl Glenn as a result of an injury by accident arising out of and in the course of his employment, and for the statutory beneficiaries of the said decedent.

The right of action for wrongful death is purely statutory and did not exist at common law and may be brought only by the executor or administrator of such deceased person. Lilly v. Railroad Co., 32 S.C. 142, 10 S.E. 932. The provision that a wrongful death action shall be brought only in the name of the administrator or executor of the estate of the deceased means the legally appointed administrator or executor of the estate of the deceased person. In this case, an appointment by the Probate Court was necessary to give the administratrix authority to act, and in the absence thereof, she had no legal capacity to institute this wrongful death action. At the time this action was instituted there was in existence no administratrix and no personal representative of the estate of Carl Glenn.

A civil action may be maintained only in the name of a person in law, an entity, which the law of the forum may recognize as capable of possessing and asserting a right of action. A suit brought in a name which is not a legal entity is a nullity and the action fails. The rule is well stated in 39 Am.Jur., Parties, Section 99, at page 969, as follows:

'It has been held that an action brought by one who was not an executor or administrator, or whose appointment as administrator was void, was a nullity where the cause of action could only be maintained by an executor or administrator, and that it could not be vitalized by substituting a representative having a valid appointment made after the action was brought, * * *.'

In the cases of Commercial & Savings Bank of Lake City v. Ward, 146 S.C. 77, 143 S.E. 546, and Blackwood v. Spartanburg Commandery No. 3, 185 S.C. 56, 193 S.E. 195, the general rule is thus stated:

'But if there is a lack of legal entity, the whole action fails. * * * If an action is brought in the name of that which under the Lex fori has no legal entity, it is as if there was no plaintiff in the record and therefore no action before the court; which presents an instance of want of jurisdiction.'

A complaint brought in the name of a plaintiff which is not a legal entity as a nullity and there is no foundation upon which to base an amendment. In the Commercial & Savings Bank case, above cited, it was said:

'The action being a nullity there was nothing to amend by. 'In strictness of principle, if there be no legal entity, there is no foundation upon which to base an amendment."

If an action for wrongful death is instituted by one other than the personal representative of a decedent, duly appointed by the Probate Court, it should be dismissed. The court has no authority, over objection, to convert a pending action which cannot be maintained into a new and independent action by admitting a party who is solely interested as plaintiff. However, should the personal representative be permitted to become a party to an unauthorized action for wrongful death, the action is deemed to have been commenced only from the time he became a party. Graves v. Welborn, 260 N.C. 688, 133 S.E.2d 761.

In the case of Pearson v. Anthony, 218 Iowa 697, 254 N.W. 10, it appears that the wife of the decedent, alleging that she was the duly appointed administratrix, instituted an action to recover damages for his wrongful death. The record shows that she expected to be appointed sometime in the future but had not, because of a lack of funds, secured her appointment. She was appointed, however, after the statute of limitations had barred the action. The court said that the question was whether the action of an individual Pretending to act as administratrix was effective to commence the action and, thereby avoid the bar of the statute of limitations. It answered the question in the negative and dismissed the suit.

In 8 A.L.R.2d, at page 57, with reference to the substitution of a proper party for a nonexistent party, it was said:

'It is well settled that where an action is brought in the name of a nonexisting plaintiff, an amendment of complaint by substituting the proper party to the action as plaintiff will be regarded as the institution of a new action as regards the statute of limitations.'

Many authorities support the foregoing statement: Goldschmidt v. Pevely Dairy Co., 341 Mo. 982, 111 S.W.2d 1; Schilling v. Chicago, Northshore & Milwaukee Railway Co., 245 Wis. 173, 13 N.W.2d 594; Richard v. Slate, 239 Or. 164, 396 P.2d 900; Rosenzweig v. Heller, 302 Pa. 279, 153 A. 346; Reynolds v. Lloyd Cotton Mill, 177 N.C. 412, 99 S.E. 240.

The trial judge, in the instant case, placed reliance in applying the 'relation back doctrine' on the case of Graves v. Welborn, above cited. In that case the plaintiff, in good faith, believed herself to be the duly appointed administratrix of the decedent at the time she instituted the suit. Prior to the filing of the complaint she had applied for appointment as administratrix, the clerk had entered an order adjudging that she was entitled to letters of administration upon taking the oath and...