Rosier v. Garron, Inc.

Decision Date14 September 1973
Docket NumberNo. CC885,CC885
Citation156 W.Va. 861,199 S.E.2d 50
CourtWest Virginia Supreme Court
PartiesLona ROSIER, Admrs., etc. v. GARRON, INC., et al.

Syllabus by the Court

1. When Chapter 55, Article 7, Section 6 of the Code of West Virginia, 1931 was amended in 1967 to permit an action for wrongful death to be brought by a non-resident personal representative, the amendment specifically limited its liberalizing provisions to those deaths which would occur after the effective date of the amendment; therefore, where plaintiff's decedents died before the effective date of the amendment, but suit was not brought until after the effective date, it was correct for the lower court to rule that the non-resident administrator lacked capacity to sue for wrongful death.

2. 'The provisions of Code, 55--2--18, covering the right to institute a new action within one year after the entry of an order disposing of a pending action not upon the merits, does not grant that right in an action for death by wrongful act brought under Code, 55--7--5 and 6.' Syllabus pt. 1, Smith v. Eureka Pipe Line Company, 122 W.Va. 277, 8 S.E.2d 890 (1940).

3. The purpose of the words 'and leave (to amend) shall be freely given when justice so requires' in Rule 15(a) W.Va. R.Civ.P., is to secure an adjudication on the merits of the controversy as would be secured under identical factual situations in the absence of procedural impediments; therefore, motions to amend should always be granted under Rule 15 when: (1) the amendment permits the presentation of the merits of the action; (2) the adverse party is not prejudiced by the sudden assertion of the subject of the amendment; and (3) the adverse party can be given ample opportunity to meet he issue.

Loudoun L. Thompson, Romney, for plaintiff.

Bean & Hamilton, Ralph J. Bean, John M. Hamilton, Moorefield, for defendants.

NEELY, Judge:

This case from the Circuit Court of Grant County, West Virginia, presents three questions of law certified to this Court by the circuit court upon its own motion.

Plaintiff's cause of action arose on October 18, 1966, when plaintiff's decedents died as a result of a collision which occurred on a public highway in grant County, West Virginia, between a motor vehicle driven and occupied by the deceased and a vehicle driven and owned by the defendants. Plaintiff, Lona Rosier, qualified as administratrix of the decedents' estates before the Registrar of Wills for Baltimore City, Maryland, and letters of administration were issued to her on October 1, 1968. Thereafter, on October 11, 1968, Lona Rosier instituted this wrongful death action in West Virginia as the personal representative of the decedents. Defendants, Garron, Inc., and Lloyd Oliver Godby, moved to dismiss the civil actions against them on several grounds, the most important of which was that the plaintiff lacked the capacity to maintain the action in West Virginia as a non-resident personal representative.

A ruling on these motions was delayed until October 23, 1972, for reasons which are not material to the questions raised in this case, at which time the circuit court consolidated the civil actions into one action, and denied the defendants' motion to dismiss on all grounds other than the ground of plaintiff's lack of capacity to sue. However, on that ground alone, the circuit court dismissed the action. The circuit court further ruled that Chapter 55, Article 2, Section 18 of the Code of West Virginia, 1931, which tolls the statute of limitations after an action has been dismissed, is not applicable to actions for wrongful death. Additionally, the court denied plaintiff's motion to amend under Rule 15 of the West Virginia Rules of Civil Procedure by substituting a person with proper capacity to sue. As a result of these rulings further proceedings on plaintiff's cause of action were foreclosed by the two years limitation for bringing actions for wrongful death under Chapter 55, Article 7, Section 5 of the Code of West Virginia, 1931, as amended. The circuit court then certified to this Court the following questions:

1. 'Did the Circuit Court of Grant County, West Virginia, err in holding that a foreign administratrix of an estate duly qualified and appointed by the State of Maryland does not have proper capacity to maintain a wrongful death action instituted in the Circuit Court of Grant County, West Virginia, on October 11, 1968, for wrongful death which occurred in Grant County, West Virginia, on the 18th day of October 1966?'

2. 'Did the Circuit Court of Grant County, West Virginia, err in holding that the provisions of Chapter 55, Article 2, Section 18 of the West Virginia Code do not apply to an action of wrongful death brought under Chapter 55, Article 7, Section 5 and Section 6 of the West Virginia Code?'

3. 'Did the Circuit Court of Grant County, West Virginia, upon plaintiff's motion to amend her bill of complaint, err in not granting leave to plaintiff to substitute or add a person duly qualified and appointed by the County Court of Grant County, West Virginia, as ancillary administrator of a non-resident estate?'

The issues of the first certified question involve the effect of the language of the wrongful death statute, Code 55--7--6, which provides that the action shall be brought in the name of the personal representative, read with the construction placed upon it by Rybolt v. Jarrett, 122 F.2d 642, 4th Cir. (1940) and the effect of a 1967 amendment to Code 55--7--6.

In 1966, the year in which the cause of action arose, Code 55--7--6 provided that 'Every such (wrongful death) action shall be brought by and in the name of the personal representative of such deceased person. . . .' The 1940 federal court decision in Rybolt v. Jarrett, Supra, held that a non-resident administrator could not institute a wrongful death action in West Virginia because Chapter 44, Article 5, Section 3 of the Code of West Virginia stated in relevant part:

'Notwithstanding any other provision of law, no person not a resident of this State . . . shall be appointed Or act as executor, administrator, curator, guardian or committee. . . .' (Emphasis supplied)

Although the Rybolt opinion recited the law of other jurisdictions, which permitted non-resident administrators to sue under the wrongful death statutes of other states, the court, nonetheless, held that the West Virginia Legislature intended to prohibit non-resident personal representatives from suing in West Virginia. The Rybolt decision was thereafter accepted by the bar of West Virginia as the law of this State until the West Virginia Legislature amended Code 55--7--6 in 1967 to permit non-resident personal representatives to sue under the wrongful death statute. Prior to 1967, we believe that Rybolt stated the correct rule of law.

Plaintiff argues that even if the law before 1967 precluded an action by a non-resident administrator, the 1967 amendment, passed before the institution of this action in 1968, permits the action to be brought by a non-resident, even though the death occurred before the amendment. We disagree. The amended part of Code, 55--7--6 is qualified by the explicit statement 'The provisions of this section shall not apply to actions brought for thedeath of any person occurring prior to the effective date hereof.'

Where a statute is unambiguous, its plain meaning is to be accepted without resort to the rules of interpretation. Baird-Gatzmer Corp. v. Henry Clay Coal Min. Co., 131 W.Va. 793, 50 S.E.2d 673 (1948); Dotson v. Gilbert, 129 W.Va. 130, 39 S.E.2d 108 (1946). A grammatical analysis of the last quoted qualifying provision of Code, 55--7--6, which the reader may prefer to diagram, clearly indicates that the amended section does not apply to actions where the death occurred before the effective date of the amendment. Analyzed grammatically, the subject of the qualifying sentence is 'provisions'; the predicate verb is 'apply'; and, the object of the verb 'apply' is the word 'actions'. The noun 'actions' is modified by the participle 'brought', and although we may concede that 'brought' has the same meaning as the word 'begun', it in no way changes the sense of the noun 'actions'. On the contrary, the primary modification of the noun 'actions' comes from the prepositional phrase 'for the death' in which the noun 'death' is again modified by a further prepositional phrase 'of any person' and further modified by the participle 'occurring'. The prepositional phrase 'prior to the effective date hereof' modifies the participle 'occurring', remembering that 'occurring' itself modifies the noun 'death'. Therefore, reading the sentence grammatically, we see that the amended provision does not apply to actions for a death which occurred before the effective date of the amendment. It is, quite obviously, the death of the decedent and not the time of the institution of the action, which determines the applicability of the amendment to the statute. We hold, therefore, that the circuit court did not err in holding that a foreign administratrix does not have capacity to sue under the wrongful death statute for a suit brought in 1968 concerning an alleged wrongful death which occurred in 1966.

The second certified question presents the issue of whether the saving provision of Chapter 55, Article 2, Section 18 of the Code of West Virginia, 1931, applies to actions for wrongful death. Code, 55--2--18 says in pertinent part:

'If any action or suit commenced within due time, in the name of or against one or more plaintiffs or defendants, abate as to one of them by the return of no inhabitant, or by his or her death or marriage, or if, in an action or suit commenced within due time, judgment or decree (or other and further proceedings) for the plaintiffs should be arrested or reversed on a ground which does not preclude a new action or suit for the same cause,...

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