McDaniel v. North Carolina Pulp Co., 4577
| Decision Date | 26 November 1956 |
| Docket Number | No. 4577,4577 |
| Citation | 95 S.E.2d 201,198 Va. 612 |
| Parties | JOHN R. MCDANIEL, JR., AND MARY M. PERSINGER, ADM'R., ETC. v. NORTH CAROLINA PULP COMPANY AND JAMES A. PHILLIPS. Record |
| Court | Virginia Supreme Court |
Murdaugh S. Madden, for the plaintiffs in error.
Aubrey R. Bowles, Jr. (Charles Pickett; Jack N. Herod; Bowles, Anderson & Boyd; Pickett, Keith & Mackall, on brief), for the defendants in error.
John R. McDaniel, III, was killed in Fairfax County, Virginia, on November 11, 1952, as a result of a collision between an automobile owned and operated by him and a tractor-trailer owned by North Carolina Pulp Company and operated by its employee, James A. Phillips. On September 14, 1953, John R. McDaniel, Jr., a resident of Nevada, and father of the decedent, qualified as administrator of the estate of his son in Nevada. As such foreign administrator, he filed a motion for judgment on September 22, 1953, in the Circuit Court of Fairfax County, Virginia, against the owner and operator of the tractor-trailer, demanding damages for the death of his decedent, in the sum of $25,000, and for damages to decedent's automobile in the sum of $1,046.58.
On October 9, 1953, the defendants moved for security for costs, and bond for the same was duly given. On December 2, 1953, defendants filed grounds of defense relating solely to the merits of the action. Thereafter, on September 1, 1954, defendants moved for a summary judgment in their favor, 'for the reason that § 26-59, Virginia Code, 1950, provides that plaintiff can neither commence nor maintain this action.' On December 10, 1954, the trial court granted the motion for summary judgment, and thereupon entered judgment in favor of defendants.
On January 7, 1955, Mary M. Persinger, a resident of Virginia, qualified in the Circuit Court of Fairfax County, Virginia, as administratrix of the decedent, John R. McDaniel, III. On the same day, John R. McDaniel, Jr., the non-resident administrator and Mary M. Persinger, the Virginia administratrix of the estate of the deceased, filed a new motion for judgment in the Circuit Court of Fairfax County against North Carolina Pulp Company and James A. Phillips for the wrongful death of their decedent. The new motion for judgment alleged the same cause of action as in the first motion, and set out that the proceedings in the first action had been concluded without determining the merits thereof, citing sections 8-633, 8-634 and 26-59, Code of Virginia, 1950, as amended.
On February 2, 1955, defendants moved to strike and dismiss the second motion on the ground that the cause of action did not arise within one year next preceding January 7, 1955. Their grounds of defense further alleged that the judgment in the first action on December 10, 1954, was 'res judicata, that no action at law or cause of action herein set forth has been brought and pending in any court prior to January 7, 1955, the date on which this action was commenced.'
Plaintiffs filed a replication, averring that the time during which the first action was pending was 'not to be counted as any part of the period of one year, by reason of the saving clause of Virginia Code, 1950, § 8-634,' that is, the period between September 22, 1953, when the first action was filed, and December 10, 1954, when that action was concluded.
The trial court, being of opinion that the second action was barred by virtue of the provisions of Code, §§ 8-633 and 8-634, entered judgment for the defendants on April 29, 1955. On May 11, 1955, the trial court amended that judgment by ordering a voluntary nonsuit insofar as the action applied to damages to decedent's automobile, and reaffirming the judgment as to the claim relating to death by wrongful act. Plaintiffs applied for and obtained this writ of error.
The sole issue presented before us is whether the action commenced on September 22, 1953, by John R. McDaniel, Jr., as the Nevada administrator of John R. McDaniel, III, and concluded on December 10, 1954, was such an action, the commencement of which tolled the one year limitation provided in Virginia Code, §§ 8-633 and 8-634. The issue involves a construction of § 26-59, 1956 Cumulative Supplement, Code of Virginia, 1950.
Section 8-633, Code of Virginia, 1950, creating a right of action for death by wrongful act, provides: 'Every action under this section shall be brought within one year after the death of the injured person * * *.'
Code, § 8-634, relating to how and when such action shall be brought, provides:
'Every such action shall be brought by and in the name of the personal representative of such deceased person, and within one year after his or her death, but if any such action is brought within such period of one year after such person's death, and for any cause abates or is dismissed without determining the merits of such action, the time such action is pending shall not be counted as any part of such period of one year and another suit may be brought within the remaining period of such one year as if such former suit had not been instituted.' (Emphasis added.)
Section 26-59, Code of Virginia, 1950, as amended, so far as pertinent, provides:
'No person not a resident of this State * * * shall be appointed or allowed to qualify or act as personal representative, or trustee under a will, of any decedent * * * unless there be also appointed to serve with the non-resident personal representative, trustee, * * * a person resident in this State * * *; and in the event such resident personal representative, trustee, * * * ceases, for any reason to act, then a new resident personal representative, * * * shall be appointed in the same manner as provided in Section 26-48; * * *.'
The legislative history of §§ 8-633 and 8-634 is reviewed in Norwood, Adm'r. v. Buffey, 196 Va. 1051, 86 S.E.2d 809, and Hudson Motor Co. v. Hertz, 121 F.2d 326.
Plaintiffs ask for a liberal construction of the saving clause in § 8-634, in view of its generally accepted purpose. In addition, they contend that defendants waived the requirement of § 26-59 by failure to make prompt objection to a non-compliance therewith and by pleading to the merits prior to such objection.
On the other hand, defendants contend that the history of the statutes involved shows that it is contrary to the public policy of Virginia to permit a foreign personal representative to exercise his functions in this State; 1 that such public policy may not be waived by an individual; that the second action was not brought by the same plaintiff as in the first action within the meaning of § 8-634, and there 'is no possibility of saving her (the administratrix) the time that her first action was pending, because she did not exist in the capacity of administratrix prior to the day' the second action was commenced.
The application of the statutes involved to the precise facts of this case presents to us an original proposition. In its determination we are guided by the general principles which we have applied in cases involving analogous facts and circumstances.
In approaching the issue, it may be well to note that it has been established in this jurisdiction that a foreign administrator, who has acquired no status in Virginia, is without authority to institute in his official capacity and action or suit in the courts of this State. Moore v. Smith, 177 Va. 621, 625, 15 S.E.2d 48, and Fugate v. Moore, 86 Va. 1045, 1047, 11 S.E. 1063, 19 Am.St.Rep. 926. That rule is not in question here and, so far as this case is concerned, it has been settled by the final judgment rendered in the first action instituted by the Nevada administrator, from which there has been no appeal.
In Moore v. Smith, supra, we also said that 'the right of the administrator to sue must be properly and reasonably challenged.' 177 Va. page 624.
In Holt v. Middlebrook, (1954) 4 Cir. 214 F.2d 187, the United States Court of Appeals, Fourth Circuit, reviewed the cases in the Federal Courts in Virginia dealing with the question of the rights of foreign administrators to sue in Virginia and concluded that, under the Virginia statutes, a non-resident personal representative of a decedent killed in an accident in Virginia could not maintain wrongful death action against Virginia residents in the United States District Courts of Virginia. Neither that case, nor any of those reviewed, presented the same question as that in the instant case.
In Norwood, Adm'r. v. Buffey, 196 Va. 1051, 86 S.E.2d 809, plaintiff's administrator brought action for wrongful death within one year after the death of his decedent, took a voluntary nonsuit in that action after that period had expired, and reinstated his action against defendant on the same day. We held that Code, § 8-634 was remedial in its purpose, was to be liberally construed, and applicable to a case of voluntary nonsuit.
In Hodges v. Kimball, 4 Cir. 91 F. 845, it was held, in effect, that a defect as to the parties was correctable and not a prerequisite to jurisdiction. Cf. Burks Pleading and Practice, 4th Ed., § 61, page 128, and Annotation 108 A.L.R. 1282, et seq.
It must be remembered that in Virginia our statutes are liberal in their provisions for adding new parties in cases of non-joinder. Code, § 8-96, as amended, and § 8-639.
In 54 C.J.S., Limitations of Actions, § 287(b.), pages 347, 348, this is said:
'A statute extending the time for the institution of a new action on failure of the original action for reasons other than on the merits is highly remedial, and should be liberally construed in furtherance of its purpose, to afford litigants a hearing on the merits, and is not to be frittered away by any narrow construction; * * *.' (Cited in 196 Va. page 1055).
See also 34 Am. Jur., Limitation of Actions, § 38, page 41, § 279, page 226, and § 288, page 232.
In 54 C.J.S., § 289, pages 353 and 354, this is said:
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