Ross v. Robinson

• Decision Date: 21 March 1944
• Citation: 174 Or. 25,147 P.2d 204
• Parties: ROSS <I>v.</I> ROBINSON
• Court: Oregon Supreme Court

174 Or. 25

147 P.2d 204

ROSSv.

ROBINSON

Supreme Court of Oregon.

Argued February 15, 1944.

Reversed March 21, 1944.

Limitation of actions

1. Generally, amendment of pleading will take effect by relation and thus relieve against the bar of intervening limitation if identity of cause of action is still substantially the same, but limitation will prevail if, under guise of amendment, there is substitution of new cause of action.

Pleading

2. Principal function of pleadings is to enable litigants to bring controversies to trial on merits, and, generally speaking, rules concerning pleadings should not be permitted to defeat party's right to trial except when to do otherwise would be unjust to adversary or would violate a statute.

Limitation of actions

3. Statutes of limitation are founded upon the general expectation that claims which are valid are not usually allowed to remain neglected.

Appeal and error

4. After reversal on appeal, whenever the Supreme Court does not make final disposition of case but remands it for further proceedings, trial court has same power to allow pleadings to be amended as it would have had if there had been no previous trial.

Limitation of actions

5. In death action, where originally there was merely a defective statement of a cause of action filed in the limitation period, amended complaint, which was the same as original except that it alleged that plaintiff was the surviving widower, was not barred by two-year limitations, since identity of cause of action remained substantially unchanged.

Appeal and error

6. Supreme Court's decision, on former appeal, that complaint in action by husband as administrator of wife's estate, having been demurred to, was not sufficient to support judgment for wrongful death of wife, did not mean that judgment was a nullity where cause was remanded.

Pleading

7. Purpose of statute authorizing amendments to pleadings is to enable litigants to cure defective pleadings.

Limitation of actions

8. Question whether an amendment of pleadings states new cause of action is not affected by whether it is an ordinary statute of limitations or a limitation which goes to existence of right itself.

                  Amendment of pleadings after limitation has run by change in
                capacity in which suit is prosecuted, note, 74 A.L.R. 1269
                  5 C.J.S., Appeal and Error, § 1969
                

Before BAILEY, Chief Justice, and ROSSMAN, KELLY, LUSK, BRAND and HAY, Associate Justices.

Appeal from Circuit Court, Josephine County.

H.K. HANNA, Judge.

Action by Frank P. Ross, administrator of the estate of Lyna M. Ross, deceased, against Everett E. Robinson for death by wrongful act. From a judgment for defendant, plaintiff appeals.

REVERSED.

A.C. Hough, of Grants Pass (W.T. Miller and Orval J. Millard, both of Grants Pass, on the brief), for appellant.

Clarence J. Young, of Portland (Don R. Newbury, of Medford, on the brief), for respondent.

LUSK, J.

The question for decision is whether the plaintiff's action is barred by the statute of limitations. The action is for death by wrongful act, and the right to bring it is conferred by § 8-903, O.C.L.A., which reads as follows:

"When the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former for the benefit of the widow or widower and dependents and in case there is no widow or widower, or surviving dependents then for the benefit of the estate of the deceased may maintain an action at law therefor against the latter, if the former might have maintained an action, had he lived, against the latter, 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 $10,000."

On December 23, 1939, the plaintiff Frank P. Ross, as administrator of the estate of Lyna M. Ross, deceased, filed a complaint alleging that Lyna M. Ross came to her death on December 14, 1939, as the result of certain specified negligent acts of the defendant Everett E. Robinson in the operation of an automobile, and that the estate of Lyna M. Ross, deceased, had thereby been damaged in the sum of $10,000.00, for which judgment was prayed. A jury trial resulted in a judgment for the plaintiff. On appeal to this court the judgment was reversed. We held that the complaint, which was challenged by demurrer, did not state facts sufficient to constitute a cause of action, for the reason that it failed to negative the existence, at the time of the decedent's death, of the preferred beneficiaries named in the statute, namely, a widower and surviving dependents: Ross v. Robinson, 169 Or. 293, 318, 124 P. (2d) 918, 128 P.(2d) 956. The cause was remanded to the circuit court with directions to sustain the demurrer to the complaint and for further proceedings not inconsistent with the opinion of this court.

Thereafter, on January 4, 1943, the plaintiff filed an amended complaint, which is, in substance, the same as the original complaint except that it alleges that "plaintiff Frank P. Ross is the surviving widower of the said Lyna M. Ross, deceased, and that she left no other dependents, and by reason of the death of said Lyna M. Ross, the said Frank P. Ross was and is damaged in the sum of Ten Thousand ($10,000.00) Dollars." Judgment for the benefit of Frank P. Ross was prayed for accordingly.

The defendant demurred to the amended complaint on the ground that the action was barred by the provision of § 8-903, O.C.L.A., that the action shall be commenced within two years after the death. The court sustained the demurrer and entered judgment for the defendant. The plaintiff has appealed.

It is the defendant's position, and was evidently that of the trial judge, that the cause of action stated in the amended complaint, instead of being a mere continuance of that stated in the original complaint, is in fact a wholly new and different cause of action, asserted on behalf of a different beneficiary and governed in certain particulars by different rules of law, and that, since this new action was not filed within two years after the death of Lyna M. Ross, the plaintiff has not brought himself within the limitation of the statute and the action must fail.

The defendant relies on Fox v. Ungar, 164 Or. 226, 98 P.(2d) 717. The plaintiff in that case, Helen Fox, commenced an action as administratrix of the estate of her deceased son to recover damages for his death, under § 5-703, Oregon Code 1930 (which is the same as § 8-903, O.C.L.A., except for an amendment made in 1939). More than two years after her son's death, Helen Fox, in her individual capacity, filed an amended complaint bringing the case under the Employers' Liability Act. We held that this was not the same cause of action as that stated in the original complaint and did not relate back to the time of its filing, but was barred by the statute of limitations. It was pointed out that the two complaints were brought under different statutes; that the recovery in the one case was for the benefit of the estate and subject to the debts of creditors, in the other for the benefit of the persons named as beneficiaries in the statute; that if the decedent's death resulted from violation of the Employers' Liability Act there was no authority in law for his personal representative to bring the action; that the two actions were concerned with the violation of different duties owed by the defendant to the decedent; and that in the first action the negligence of a fellow servant and contributory negligence of the decedent would be defenses, while in the second neither of these defenses would be available. The court concluded:

"Although the statute, under applicable facts, authorizes the bringing of these actions the rights and remedies of the parties in the two actions are not the same, each cause of action being dependent upon a different state of facts". (164 Or. 231.)

In some important respects the two cases are alike. Here, as in Fox v. Ungar, the persons on whose behalf recovery is sought in the two complaints are different, as is the measure of damages (Nordlund v. Lewis & Clark Railroad Co., 141 Or. 83, 92-97, 15 P. (2d) 980; Carlson v. Oregon Short Line Ry. Co., 21 Or. 450, 459, 28 P. 497); and contributory negligence, which would not have been available as a defense to the original complaint, is available under the amended complaint, because it alleges that Frank P. Ross, for whose benefit the action is brought, was himself driving the automobile in which his wife was riding at the time of the collision which resulted in her death (87 A.L.R. 590). But in both pleadings in the instant case there is the same plaintiff, namely, the administrator, who is the only person authorized to bring the action, and the statute under which it is brought is the same and the identical violation of duty is charged.

1. It is a general rule that "an amendment of a pleading will take effect by relation and thus relieve against the bar of an intervening limitation if the identity of the cause of action is still substantially the same, but that the limitation will prevail if under the guise of an amendment there is the substitution of a new cause of action in place of another wholly different." United States v. Memphis Cotton Oil Co., (1933) 288 U.S. 62, 77 L.Ed. 619, 53 S.Ct. 278, quoted in Ibach v. Jackson, 148 Or. 92, 101, 35 P.(2d) 672.

In the application of this rule, as of many other general principles of law, courts have differed. The conflicting results which have been reached in cases presenting similar facts seem to be influenced largely by the particular court's conception of the meaning of the term, "cause of action", and to some extent, perhaps, by a rigid and technical attitude on the one hand, or a liberal disposition on the other, towards the exercise of the right of amendment by a party desirous of staying in court and having a trial on the merits, as against the effort of his opponent...