Price v. Southern Ry. Co.
| Decision Date | 22 March 1985 |
| Citation | 470 So.2d 1125 |
| Parties | Donna PRICE, As Administratrix of the Estate of Lonnie Price; Donna Price, as Mother of Annastocia Price v. SOUTHERN RAILWAY COMPANY, a Corporation. 83-468. |
| Court | Alabama Supreme Court |
Robert Wyeth Lee, Jr. of Wininger & Lee, Birmingham, for appellant.
Crawford S. McGivaren, Jr. and Larry B. Childs of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for appellee.
Grover S. McLeod, Birmingham, for amicus curiae in support of Donna Price, appellant.
On Application for Rehearing
This Court's opinion of September 7, 1984, is hereby withdrawn, and the following opinion is substituted therefor.
This is an appeal by the plaintiff, Donna Price, from a summary judgment entered in favor of the defendant, Southern Railway Company. We reverse and remand.
On September 15, 1981, a gasoline tanker truck collided with a Southern Railway Company (Southern) train at a railroad crossing in Huntsville, Alabama. Lonnie Price and his daughter, Annastocia, were waiting in their car at that crossing when the collision occurred. Lonnie Price was severely injured, and his daughter was killed by the explosion and fire resulting from the collision. Lonnie Price and his wife, Donna Price, filed suit on September 24, 1981 (first action) to recover damages for his personal injuries and her loss of consortium, naming Southern, among others, as defendant. The following day, September 25, 1981, Lonnie Price died from his injuries.
On November 3, 1981, Donna Price amended the complaint filed in the first action, substituting herself as "Administratrix of the Estate of Lonnie Price deceased," for "Lonnie Price" as co-plaintiff. She also added, in substance, a count for the wrongful death of Lonnie Price. Another amendment was filed on September 10, 1982. This amendment named additional defendants, realleged the previous eight counts, and added specific counts (nine through eighteen) of negligence, wantonness, and breach of warranty against the newly named defendants and Southern in causing Donna Price's loss of consortium and the injuries and deaths of Lonnie and Annastocia Price.
That same day, September 10, Donna Price as administratix of the estate of Lonnie Price, and as mother of Annastocia Price, filed a new lawsuit (second action) against Southern, and others, claiming damages for the wrongful deaths of Lonnie and Annastocia. The allegations of negligence, wantonness, and breach of warranty were substantially the same as those made in the prior complaint, as amended, filed in the first action. Southern moved to dismiss this second action on October 26, 1982, because of the pendency of the previously filed first action. The circuit court overruled Southern's motion to dismiss, conditioned upon the plaintiff's voluntary dismissal of Southern from the first action. On December 21, 1982, Donna Price voluntarily and without prejudice dismissed Southern as a party to the first action, and the next day, the circuit court entered an order to that effect.
The condition of the court's order denying Southern's motion to dismiss having been fulfilled, Southern filed its answer in the second action, asserting, as it had in its motion to dismiss, that the action was barred by the election of remedies statute, Code of 1975, § 6-5-440, set forth below:
On September 13, 1983, upon proper motion, the circuit court ordered the first action and the second action consolidated for discovery purposes only. On October 7, 1983, Southern filed a motion for summary judgment in the second action, again asserting that the second action was barred by § 6-5-440, supra. The circuit court granted Southern's summary judgment motion on December 14, 1983, in effect dismissing the second action. On December 31, 1983, plaintiff filed a motion under Rule 60(b), A.R.Civ.P., in the first action asking the trial court to set aside the order dismissing Southern from that action. The motion was denied. Plaintiff did not appeal the denial of this Rule 60(b) motion in the first action; however, on January 23, 1984, she filed this appeal from the summary judgment for Southern in the second action.
This appeal raises issues which heretofore have not been directly addressed by this Court in light of the adoption of the Alabama Rules of Civil Procedure and our holding in Benefield v. Aquaslide 'N' Dive Corp., 406 So.2d 873 (Ala.1981). First, we must decide whether, on these facts, the personal injury action filed by Lonnie Price prior to his death may be amended by Donna Price, the administratrix of his estate, to add a claim for his wrongful death; and second, whether Donna Price's own claim for loss of consortium survived the death of her husband Lonnie, when he died as a result of the injuries he sustained.
Southern argues that in fact plaintiff was prosecuting the same claims in her various capacities against the same defendants in two separate lawsuits. Therefore, Southern contends that the second lawsuit was properly dismissed under the plain language of § 6-5-440, supra, that "[n]o plaintiff is entitled to prosecute two actions ... at the same time for the same cause and against the same party." Southern reasons that, although Lonnie Price's claim for personal injuries did not survive his death, Donna Price's claim for loss of consortium did survive. Consequently, according to Southern, Rule 15(d), A.R.Civ.P., set forth below, allows her to amend that claim in her first action to add the claims for the wrongful deaths of her daughter and her husband:
(Emphasis added.)
Plaintiff, on the other hand, first contends that she was not attempting to state a claim for the wrongful deaths of Lonnie and Annastocia Price in her amendments to the first lawsuit. In support of this contention, she explains in her brief the trial court's rationale in conditioning its denial of Southern's motion to dismiss the second action on plaintiff's dismissal of Southern from the first action without prejudice: the plaintiff had argued before the trial court that she, in her representative capacity, was entitled to pursue an action under warranty against the other defendants in the first action filed by her husband, as recognized by this Court in Benefield v. Aquaslide 'N' Dive Corp., supra. In Benefield, this Court held that a breach of warranty claim seeking compensatory damages for personal injuries was a separate and distinct claim from the wrongful death claim, and, because it was a contract claim, it survived the death of the injured party under Code of 1975, § 6-5-462. Plaintiff maintains that, since the trial court found that no claim in the first action under a warranty theory existed against Southern and the tort claim for personal injuries did not survive, Lonnie's death having resulted from the accident in question, it concluded that only Southern should be dismissed from the first lawsuit. By refusing to dismiss the second action entirely, she argues, the trial court believed the first action could not be amended to state a claim for wrongful death.
The original complaint in the first action, filed before Lonnie Price's death, did not state a claim for breach of warranty. It was only after his death that Donna Price sought to amend that complaint to state a claim for breach of warranty. This amendment had no effect, because Lonnie's claim as stated in the original complaint was extinguished, and, thus, the action was no longer viable. Because his tort claim for personal injury abated, the action, as filed by Lonnie Price, ended; consequently, it could not be amended. See Proctor v. Gissendanner, 579 F.2d 876 (5th Cir.1978).
This is not to say that a claim for personal injuries from breach of warranty does not survive unless the claim had been filed prior to the death of the injured party. Clearly, Benefield, supra, holds:
(Emphasis added.) 406 So.2d at 875.
Nevertheless, in order for an action for personal injury, based upon warranty, filed by the decedent prior to his death to survive for purposes of substitution under Rule 25, A.R.Civ.P., the decedent must have stated a claim for breach of warranty. Otherwise, a new action must be filed in which the breach of warranty claim may be asserted.
Plaintiff further argues that, even if she had sought, after Lonnie's death, to amend the complaint in the first action so as to sue in a representative capacity and state a claim for his wrongful death and reallege her individual claim for loss of consortium, it was improper for her to do so and would have had no effect. Her proper course of action, she says, was to file a new lawsuit, because under the rule stated in Parker v. Fies & Sons, 243 Ala. 348, 10...
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