Graves v. Welborn

• Decision Date: 19 December 1963
• Docket Number: No. 609,609
• Parties: , 3 A.L.R.3d 1225 Lillie Martin GRAVES v. Terry White WELBORN, t/a Welborn Electric Company.
• Court: North Carolina Supreme Court

Page 761

133 S.E.2d 761

260 N.C. 688, 3 A.L.R.3d 1225

Lillie Martin GRAVES v. Terry White WELBORN, t/a Welborn Electric Company.

No. 609

Supreme Court of North Carolina.

Dec. 19, 1963

Elreta Melton Alexander, Greensboro, for plaintiff appellant.

Hines & Boren and Jordan, Wright, Henson & Nichols, Greensboro, for defendant appellee.

SHARP, Justice.

The right of action for wrongful death is purely statutory. It may be brought only 'by the executor, administrator or collector of the decedent.' G.S. § 28-173. A widow, as such, has no right of action for the death of her husband. Howell v. Comrs., 121 N.C. 362, 28 S.E. 362. If an action for wrongful death is instituted by one other than the personal representative of a decedent, duly appointed in this State, it should be dismissed, Carr v. Lee, 249 N.C. 712, 107 S.E.2d 544; Journigan v. Ice Co., 233 N.C. 180, 63 S.E.2d 183; Monfils v. Hazlewood, 218 N.C. 215, 10 S.E.2d 673, and a separate and independent action instituted by such representative. Hall v. Southern R. Co., 149 N.C. 108, 62 S.E. 899. 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. Orkin Exterminating Co. v. O'Hanlon, 243 N.C. 457, 91 S.E.2d 222. 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. Hall v. Southern R. Co., supra; Reynolds v. Cotton Mills, 177 N.C. 412, 99 S.E. 240, 5 A.L.R. 284; Home Real Estate, Loan & Insurance Co. v. Locker, 214 N.C. 1, 197 S.E. 555.

Prior to the enactment of Chapter 246, Sess.Laws of 1951 (now codified as G.S. § 1-53(4)) which amended G.S. § 28-173, the institution of an action for wrongful death within one year after such death was a condition precedent to maintaining the action. All other requirements of the section were also strictly construed. See annotation to G.S. § 28-173. The amendment removed the time limitation as a condition annexed to the cause of action and made it a two-year statute of limitations. McCrator v. Stone & Webster Engineering Corp., 248 N.C. 707, 104 S.E.2d 858.

The majority rule is that an amendment which changes the capacity in which a plaintiff sues does not change the cause of action so as to let in the defense of the statute of limitations. Annot., 74 A.L.R. 1269; Lopez v. United States, 4 Cir., 82 F.2d 982, 987. That rule has not been followed in North Carolina. Bennett v. North Carolina R. Co., 159 N.C. 345, 74 S.E. 883. However, plaintiff did not purport to institute the instant case in her individual capacity. In the first paragraph of the complaint she alleged that she was the duly appointed and acting administratrix of Graves. 'An allegation by one describing himself as administrator of a designated estate is sufficient to show that he sues as such.' 21 Am. Jur., Executors and Administrators § 947.

It is true that in the caption of the complaint and summons plaintiff did not designate herself as administratrix. When a suit is brought by a fiduciary he should indicate his representative capacity in the caption of the pleadings, but the character in which a party sues must be determined from the complaint and not from the caption. Savannah Sugar Refining Co. v. Royal Crown Bottling Co., 259 N.C. 103, 130 S.E.2d 33; 39 Am.Jur., Parties § 6.

Bennett v. North Carolina R. Co., supra, involved an action for wrongful death commenced by the widow of the decedent on July 4, 1910. An examination of the record of that case reveals (as the reported case does not) that she alleged in her complaint that she had been duly appointed as administratrix. The complaint itself had no caption but in the caption of the summons the plaintiff's name appeared only as an individual. On March 11, 1912, the defendant moved to dismiss because plaintiff 'failed to file a complaint in this action as required by statute.' The plaintiff then moved to amend the summons by adding the word 'administratrix' after her name. The judge allowed this motion. The Supreme Court reversed and dismissed the action saying that the effect of the amendment was 'to change the entire character of the action and to convert that which was the individual action of Mary E. Bennett into one by her in her representative capacity as administratrix.' The court held this could not be done more than a year after the death. On the record the Bennett case appears to have been wrongly decided.

Ordinarily an amendment of process and pleadings may be allowed in the discretion of the court to correct a misnomer or mistake in the name of a party where the amendment does not amount to a substitution or entire change of parties. Bailey v. McPherson, 233 N.C. 231, 63 S.E.2d 559. In the instant case had plaintiff in fact been the duly appointed administratrix at the time the complaint was filed, there is no question but that the court would have had plenary power under G.S. § 1-163 to permit the plaintiff to amend the caption in order to designate herself as administratrix in conformity with the allegation in the complaint.

However, the right to amend is not the primary question here. The difficulty in this case is that at the time plaintiff filed her complaint alleging that she was the duly appointed administratrix of Graves, that allegation was denied and it was not true. At that time the cause of action for wrongful death was not barred by the applicable two-year statute of limitations. When her letters were actually issued, however, her intestate had been dead more than five years. It is obvious, therefore, that unless the plaintiff's appointment as administratrix related back to the institution of this action, or to the time the order adjudicating her right to letters was signed, it cannot survive defendant's denial of the allegations in paragraph one of the complaint.

In order to protect property rights and to protect one who, prior to his appointment, has acted to preserve the estate, it is the universal rule that all previous acts of the personal representative prior to his appointment which were beneficial in nature to the estate and which would have been within the scope of his authority had he been duly qualified, are validated upon his appointment which relates back to the death of the intestate for this purpose. Jones v. Jones, 118 N.C. 440, 24 S.E. 774; 21 Am. Jur., Executors and Administrators § 211; see Annot., 26 A.L.R. 1359.

Although the appointment of an administrator relates back to the date of the death of decedent for many purposes, the courts are not in accord as to whether it will relate back so as to validate an action brought prior to the appointment.

In Gatfield agt. Hanson et al., 57 How. Pr. (N.Y.) 331, the heirs, not purporting to act for the estate, instituted the action to collect a mortgage which decedent owned at the time of her death. Thereafter one of them was appointed administrator. In dismissing the action, the court said: 'As John H. Gatfield had no legal title or right to the mortgage when the action was commenced, his subsequent appointment cannot uphold the suit. The question is, what right had he when he instituted the suit? His subsequent appointment as administrator de bonis non cannot give validity to an action commenced before the appointment. * * *'

In Pearson v. Anthony, 218 Iowa 697, 254 N.W. 10, decedent died November 20, 1931. On February 9, 1932, his wife, alleging that she was the duly appointed administratrix, instituted an action to recover damages for his wrongful death. The truth was that she expected to be appointed sometime in the future but, because of a lack of funds she had not secured her appointment. She was actually appointed on February 17. 1933---after the statute of limitations had barred the action. The court said the question was whether the action of an individual pretending to act as administratrix were 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 Clinchfield Coal Corporation v. Osborne's Adm'r, 114 Va. 13, 75 S.E. 750, (1912) suit was brought in the name of K as administrator of the estate of O to recover damages for the wrongful death of O from the defendant Coal Corporation. No question of the statute of limitations was involved. After verdict it was discovered that by some mistake or inadvertence no order had been entered appointing K administrator. The order of appointment was then signed and judgment entered upon the verdict. Upon appeal, the case was sent back for a new trial on other grounds, but the court held that the appointment after verdict was valid and related back to the institution of the action. Among other authorities, it relied upon Doolittle v. Lewis, 7 Johns.Ch. (N.Y.) 45, 49, 11 Am.Dec. 389, in which Chancellor Kent was quoted as follows: 'If a party sues as executor or administrator, without probate or taking out letters of administration, the taking them out at any time before the hearing will cure the defect and relate back so as to make the bill good from the beginning. In a light so merely formal is that omission viewed.'

In Griffin v. Workman, Fla., 73 So.2d 844, G died on November 28, 1950. On November 26, 1952 plaintiff, the father of the decedent, instituted an action for his wrongful death as administrator of his estate. At that time the father was not the administrator. Two days later he petitioned for appointment and an order was entered reciting that upon taking the oath and filing the specified bond, letters would be granted. Letters were actually issued on January 31, 1953. On January 9, 1953 defendant moved to dismiss the action and the trial court allowed the motion. In reversing the dismissal, the Supreme Court reasoned: The death action was the only asset of...