Reardon v. Balaklala Consol. Copper Co.

• Decision Date: 02 January 1912
• Citation: 193 F. 189
• Court: U.S. District Court — Northern District of California
• Parties: REARDON v. BALAKLALA CONSOL. COPPER CO. et al.

193 F. 189

REARDON v. BALAKLALA CONSOL. COPPER CO. et al.

United States Circuit Court, N.D. California.

January 2, 1912

William Cannon and C. S. Jackson, for plaintiff.

C. H Wilson, for defendants.

VAN FLEET, District Judge.

This is an action to recover for the death of an employe alleged to have been caused by the negligence of the employer. Section 1970 of the Civil Code of the state requires that such an action be maintained in the name of the legal representative of the deceased employe for the benefit of the next of kin in a certain order of precedence; and this is deemed the exclusive remedy. In this instance the father, being the next of kin and entitled to the benefit of the recovery erroneously brought the action in his own name instead of that of the administrator of the deceased, under the mistaken supposition that the case fell within section 377 of the Code of Civil Procedure; and, before the error was established by a ruling on defendant's demurrer to that complaint, the time within which a new action could be commenced by the administrator had elapsed. The sole question presented here calling for consideration is whether under these circumstances it was competent to allow the complaint to be amended by substituting the administrator as plaintiff in the action so commenced in place of the father, and thus avoid bringing a new action; or should the action have been dismissed. As the result of an application to that end, the court heretofore allowed such substitution, and, an amended complaint having been since filed in the name of the administrator, a demurrer thereto and motion to strike the same from the files is now interposed, and the question as to the propriety of the ruling has with the court's permission been reargued.

It is again strenuously insisted that such a change in the sole party plaintiff is not the proper subject of an amendment that, in effect, the action of the court was to allow, under the guise of an amendment, a new action to be brought in the name of the administrator after the time had elapsed in which he could originally maintain it; and, as the amendment has relation to the commencement of the action, it will, if sustained, have the effect to deprive defendants of the right to interpose the plea of the statute, which, as claimed, had ripened into a bar when the amendment was allowed. In another form the objection is that, the right of action being in its inception purely statutory and given exclusively to the legal representative, the bringing of the action in the name of the father was wholly nugatory and ineffectual to arrest the running of the statute; and to allow the substitution now is in legal effect to extend the statutory limitation for bringing the action by the administrator. This position is pressed with such ingenuity as to make it plausible, but I do not regard it as sound. As indicated in granting the leave it involves an erroneous conception of the legal effect of the omission sought to be corrected, and a too narrow construction of the purpose and effect of the statutes, both state and federal (C.C.P. Sec. 473; R.S. Sec. 954 (U.S. Comp. St. 1901, p. 696)), in providing the extent and character of relief that may be afforded by way of amendment, to avoid mistakes of the nature of that here involved. It should be borne in mind, as then stated, that the substantive cause of action counted on in the amended complaint has not been changed. It remains precisely the same as that stated in the original pleading. No new facts are alleged as a ground of recovery, the only change being in the name of the plaintiff and the capacity in which he sues; while the father still remains the beneficiary of the recovery sought. This being so, the change effected by the amendment is obviously in no just sense the bringing of a new action. It is one of form rather than of substance, and in the interests of justice is to be treated as such, rather than to adopt a view which would result in an irretrievable bar to all remedy. Under the modern doctrine, the discretionary power of the court to such end is to be liberally exerted in favor of, rather than against, the disposition of a case upon its merits; and I am entirely satisfied after further examination of the question induced by the reargument that, under the broad and comprehensive terms of section 954, if not as well under the statute of the state, the defect involved is one which may be cured by amendment. It will not be necessary in support of this conclusion to discuss the many authorities referred to in the briefs and considered by me on granting the order allowing the substitution. It will be sufficient, I think, to refer to some later cases not cited by counsel which have fallen under my observation, and which to my mind very fully cover every phase of the question.

In the case of McDonald v. State of Nebraska, 101 F. 171 41 C.C.A. 278, the same question arose under circumstances very similar in legal effect to those presented here. The action was originally commenced in the name of the State Treasurer against the receiver of an insolvent national bank to recover certain moneys belonging to the state on deposit in the bank. A demurrer was interposed upon the ground that the Treasurer had no legal capacity to sue, and that from the averments of the petition it appeared that the state was the sole party in interest. The demurrer was sustained, but by leave of the court the state of Nebraska was substituted as the sole plaintiff in place of the Treasurer. As so amended, the petition was demurred to, and the court was asked to strike it from the files. This relief was denied, and judgment going for the plaintiff the defendant appealed, urging 'that the substitution of the state of Nebraska as plaintiff in the action was a change of the cause of action, and that, as the statute of limitations had run against the plaintiff's claim before the substitution was made, the cause of action was barred'-- in effect, the same objection made here. In deciding the case and overruling this objection, Judge Caldwell for the Court of Appeals first reviews the cases on the subject from the Supreme Court of Nebraska, and reaches the conclusion that under the statute of that state, which will be found no broader or more liberal in terms than that of California, the allowance of the amendment was not only within the power of the court, but that it would have been error to have refused it. 'But,' proceeds that learned judge, 'independent of the Nebraska Code and the decisions of the Supreme Court of that state, we would have no difficulty in upholding the judgment of the lower court in this case both upon principle and authority. The right and duty of the federal courts to allow amendments does not rest on state statutes only. It is conferred on them by the judiciary act of 1789. * * * The thirty-second section of that act (Act Sept. 24, 1789, c. 20, 1 Stat. 91) was designed to free the administration of justice in the federal courts from all subtle, artificial, and technical rules and modes of proceeding in any way calculated to hinder and delay the determination of causes in those courts upon their very merits. This act emancipated the judicial department of the government from the shackles of artificial and technical rules, which had theretofore been interposed to obstruct the administration of justice, as completely as the Revolution had emancipated the political department of the government from foreign domination. This was done by investing the federal courts with plenary power to remove by amendment all such impediments to the attainment of justice. From the first, the Supreme Court of the United States grasped the object and purpose of this enactment. In referring to this section of the judiciary act, the Supreme Court of the United States, speaking by Mr. Justice Story, said: 'The authority to allow such amendments is very broadly given to the courts of the United States by the thirty-second section of the judiciary act of 1789, c. 20 (now section 954, Rev. St. U.S.), and quite as broadly, to say the least, as it is possessed by any other courts in England or America, and it is upheld upon principles of the soundest protective policy.' Matheson's Adm'rs v. Grant's Adm'r, 2 How. 263, 281 (11 L.Ed. 261). And Mr. Justice Miller, speaking from the...