Richard v. Slate

• Decision Date: 03 December 1964
• Parties: John E. RICHARD, Administrator of the Estate of Lucille Pedersen, deceased, Appellant, v. Fred H. SLATE et al., Respondents, and John Doe and Donald McKinney, Defendants.
• Court: Oregon Supreme Court

Page 900

396 P.2d 900

239 Or. 164

John E. RICHARD, Administrator of the Estate of Lucille

Pedersen, deceased, Appellant, v. Fred H. SLATE et al., Respondents, and John Doe and Donald McKinney, Defendants.

Supreme Court of Oregon, In Banc.

Argued and Submitted June 2, 1964.

Decided Dec. 3, 1964.

George L. Hibbard, Oregon City, argued the cause for appellant. On the briefs were Hibbard, Jacobs, Caldwell & Kincart, Oregon City, and Jack C. Nulsen, Jr., Newberg.

David Sandeberg, Portland, argued the cause for respondents. On the brief were Sandeberg, Recken & Luetjen, David J. Krieger, and Black, Kendall, Tremaine, Boothe & Higgins, Portland.

Before McALLISTER, C. J., and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, JJ.

PERRY, Justice.

The admitted facts in this case are that on October 18, 1959, Lucille Pedersen, a non-resident of the state of Oregon, was injured in an automobile accident and died in Yamhill county, Oregon; that on January 10, 1961, John E. Richard made application in Multnomah county, Oregon, for appointment as administrator of the estate of Lucille Pedersen, deceased, and he was appointed by that court; that on April 26, 1961, John E. Richard, as administrator of the estate, brought an action against the named defendants for the wrongful death of Mrs. Pedersen. Subsequently, and on November 9, 1961, the defendants moved the Multnomah county probate court to set aside the appointment of John E. Richard. On October 11, 1962, the probate court set aside the appointment on the grounds that it was without jurisdiction to make the appointment since the deceased was a non-resident of the state and left no assets in Multnomah county. Thereafter, on October 30, 1962, John E. Richard made application for appointment as administrator of the estate in Yamhill county, and was, by the probate court of that county, duly appointed and qualified.

After Richard was appointed administrator in Yamhill county, he filed an amended complaint in the action, alleging his appointment as administrator on October 30, 1962. The defendants demurred to the complaint on the ground that the complaint disclosed on its face that the action had not been commenced by a personal representative of the deceased within two years after the death of Mrs. Pederson as required by ORS 30.020.

The trial court sustained the demurrer and the plaintiff has appealed.

ORS 30.020 reads as follows:

'When the death of a person is caused by the wrongful act or omission of another, the personal representatives of the decedent, for the benefit of the surviving spouse and dependents and in case there is no surviving spouse or dependents, then for the benefit of the estate of the decedent, may maintain an action against the wrongdoer, if the decedent might have maintained an action, had he lived, against the wrongdoer for an injury done by the same act or omission. Such action shall be commenced within two years after the death, and damages therein shall not exceed $25,000, which may include a recovery for all reasonable expenses paid or incurred for funeral, burial, doctor, hospital or nursing services for the deceased.'

Under this statute, the cause of action is granted to the personal representative of the deceased for the benefit of those named in the statute. No cause of action is granted to the surviving spouse or dependents. Hansen v. Hayes, 175 Or. 358, 154 P.2d 202; Kosciolek v. Portland Ry., L. & P. Co., 81 Or. 517, 160 P. 132.

The right of action for wrongful death is statutory, for it is well-established that at common law no remedy by way of a civil action for wrongful death existed. The action for injury died with the person. Fergison v. Belmont Conv. Hospital, 217 Or. 453, 343 P.2d 243; Cowgill, Adm'r v. Boock, Adm'r, 189 Or. 282, 218 P.2d 445, 19 A.L.R.2d 405; Hansen v. Hayes, supra.

ORS 30.020 created a new right and a new liability, and is not a survival statute. Apitz v. Dames, 205 Or. 242, 287 P.2d 585. While granting a new cause of action, the statute also limits the cause of action to a period of two years. Thus the right of action is a qualified right.

'A statute of limitations should be differentiated from conditions which are annexed to a right of action created by statute. A statute which in itself creates a new liability, gives an action to enforce it unknown to the common law, and fixes the time within which that action may be commenced, is not a statute of limitations. It is a statute of creation, and the commencement of the action within the time it fixes is an indispensable condition of the liability and of the action which it permits. The time element is an inherent element of the right so created, and the limitation of the remedy is a limitation of the right. Such a provision will control, no matter in what form the action is brought. The statute is an offer of an action on condition that it be commenced within the specified time.'

34 Am.Jur. 16, Limitation of Actions, § 7.

Statutes of limitation which are not a part of a right are procedural only, while those which are contained in a statute which creates a right are a part of the substantive law which creates the right of action. Deupree v. Levinson, 6 Cir., 186 F.2d 297.

The condition annexed to and forming a part of the right to maintain the action for wrongful death is a part of the right and not a statute of limitations. Hansen v. Hayes, supra; Winslow v. Carolina Conference Association, 211 N.C. 571, 191 S.E. 403; Lineberry v. Town of Mebane, 218 N.C. 737, 12 S.E.2d 252; 67 A.L.R. 1070.

Generally, it seems to be well-established that in those instances where an action has been commenced by one who had no cause of action, the bringing in of the proper party as plaintiff to maintain the action is regarded as the commencement of a new action when a statute of limitations has intervened. Floyd Plant Food Co. v. Moore, 197 Ark. 259, 122 S.W.2d 463; American R. Express Co. v. Reeves, 173 Ark. 273, 292 S.W. 109; Pearson v. Anthony, 218 Iowa 697, 254 N.W. 10; Forehand v. Hall, 355 S.W.2d 940 (Mo.1962); Reynolds v. Lloyd Cotton Mills, 177 N.C. 412, 99 S.E. 240, 5 A.L.R. 284.

There is language in Griffin v. Workman, 73 So.2d 844 (Fla.1954), and Douglas v. Daniels Bros. Coal Co., 135 Ohio St. 641, 22 N.E.2d 195, 123 A.L.R. 761, cases relied upon by plaintiff, which would indicate that those courts had rejected this rule. If so, we are unable to agree. Permitting one who has no cause of action to commence an action and await the substitution of the party having a cause of action after a limitation period has expired would be sanctioning a practice which would circumvent the legislative intent in passing statutes of limitation.

We are not concerned with the general powers of courts to permit amendments of pleadings as to the capacity in which a plaintiff sues prior to or subsequent to the running of a general statute of limitations, 74 A.L.R. 1269, or which permit amendments as to beneficiaries under the act. Ross v. Robinson, 174 Or. 25, 148 P.2d 204. We are concerned with the question of the substitution of a party who has a cause of action for a party who did not have a cause of action when the action was commenced.

We think it must be conceded that the attempt to appoint a personal representative of the estate of Lucille Pedersen in Multnomah county was a complete nullity. Wink v. Marshall, 237 Or. 589, 392 P.2d 768; Anderson, Admr. v. Clough et al., 191 Or. 292, 230 P.2d 204. The problem then presented in this case is whether, since the complaint shows upon its face that the action was commenced by one not authorized to maintain the action within the statutory time, the subsequent appointment of a personal representative is the commencement of a new action or merely the maintenance of the prior action.

The plaintiff argues that, although the prior appointment of John E. Richard was a nullity, and he was at that time a stranger to the action, he was, before trial of the issue, duly appointed personal representative of the estate of Lucille Pedersen, deceased, that this appointment relates back to the commencement of the action, and this is sufficient to permit the trial court to adjudicate the issues set forth in the complaint.

The courts are not in accord as to whether the appointment of a personal representative will relate back so as to validate an action brought prior to appointment if the statute of limitations has run.

We have held that the fact that at the time a suit was filed by a party alleging to be the administrator when in fact he had not been appointed administrator was not prejudicial to the defendant so long as he was appointed prior to trial, the court stating in Cockerham v. Potts, 143 Or. 80, 90, 20 P.2d 423, 427:

'The record shows that on March 10, at the time of the filing of the amended complaint and at the time of the trial, plaintiff J. T. Cockerham was the duly appointed administrator of the estate of Joseph Cockerham, Jr., deceased. The defendants were not prejudiced by reason of the date of the letters of administration. There can be no question but that any judgment obtained by plaintiff would be a complete bar to any subsequent action for the cause mentioned in the complaint.'

But this case did not involve the running of a statute of limitations.

Douglas v. Daniels Bros. Coal Co., supra, is cited and to some extent relied upon by the Supreme Court of North Carolina in its opinion in Graves v. Welborn, 260 N.C. 688, 694, 133 S.E.2d 761, 765. The North Carolina court states the facts in the Ohio case as follows:

'There, decedent died October 28, 1935. His wife, as administratrix, instituted an action for his wrongful death on October 27, 1937--one day before the statute of limitations would have barred the action. Prior to that date, after having presented herself to the probate court asking to be appointed, she had received forms from the court which she erroneously believed to be letters of...