Russell v. New Amsterdam Casualty Company

• Decision Date: 31 May 1962
• Docket Number: No. 16692.,16692.
• Citation: 303 F.2d 674
• Parties: Shirley M. RUSSELL, Appellant, v. NEW AMSTERDAM CASUALTY COMPANY and Consumers Public Power District, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

303 F.2d 674 (1962)

Shirley M. RUSSELL, Appellant, v. NEW AMSTERDAM CASUALTY COMPANY and Consumers Public Power District, Appellees.

No. 16692.

United States Court of Appeals Eighth Circuit.

May 31, 1962.

Charles E. Kirchner, Omaha, Neb., made argument for the appellant and filed brief.

John E. Dougherty, York, Neb., made argument for the appellee and filed brief.

Before JOHNSEN, Chief Judge, and WOODROUGH and MATTHES, Circuit Judges.

MATTHES, Circuit Judge.

The basic question for determination on this appeal is whether the trial court, upon motion interposed by one of the defendants, properly dismissed plaintiff's cause of action and refused to permit an amendment to the original complaint. The issue presents for our consideration the Nebraska statute of limitations controlling wrongful death actions; the effect of failure of the original complaint, filed within the statutory period, to properly allege legal capacity to sue; and the right of plaintiff to file an amended complaint alleging her right to maintain the action, after the statutory period of limitations had expired.

Section 30-809, R.S.Neb., 1956 Reissue, creates the right to recover for the wrongful death of a person. Section 30-810 provides that an action for wrongful death shall be commenced within two years after the death of such person, and "(i)t shall be brought by and in the name of his personal representatives, for the exclusive benefit of the widow or widower and next of kin." Section 30-810 was considered by the Supreme Court of Nebraska in Swift v. Sarpy County, 102 Neb. 378, 167 N.W. 458, where the pronouncement was made, (167 N.W.) at p. 459: "When damage results from the death of an individual, this statute applies, and requires that an action for negligently causing such death shall be brought in the name of the administrator of the deceased individual." The Swift case has conclusively established that a wrongful death action in Nebraska must be maintained by the legal representative of the deceased. See Sarpy County v. Galvin, 8 Cir., 251 F. 888; Stevenson v. Richardson Co. (D.C.Neb.), 9 F.R.D. 437.

We turn now to the incidents from which this appeal emanated. Shirley M. Russell filed a complaint in the United States District Court for the District of Nebraska on July 25, 1960. She alleged that she was bringing the cause of action for herself and as personal representative of the estate of her husband, James G. Russell, deceased; and that on the 26th day of July, 1958, her husband was fatally injured as a result of the negligence of defendant Consumers Public Power District.¹ There was a general allegation of diversity of citizenship and a prayer for judgment in the amount of $150,000.² On August 6, 1960, defendant Consumers Public Power District moved to dismiss the complaint on the grounds (1) that the court lacked jurisdiction over the subject matter because the action was being prosecuted by the wife of the deceased who had no legal capacity to sue or maintain the action, and (2) failure to join an indispensable party, namely, the personal representative, as provided by §§ 30-809, 30-810, R.S.Neb., 1956 Reissue.

On September 2, 1960, plaintiff moved for leave to file an amended complaint. In pertinent part this complaint alleged that on August 11, 1960, plaintiff had filed petition for appointment as special administratrix of the estate of her deceased husband in the County Court of Hamilton County, Nebraska; that she had qualified for such appointment and had been issued letters of special administratrix; that there were no children of her marriage to James G. Russell, and that she is his sole heir and next of kin. The court took the motion for leave to file the amended complaint under advisement, and on November 8, 1960, filed a memorandum and order sustaining Consumers' motion to dismiss. This, of course, was tantamount to a denial of the right to file the amended complaint. From the memorandum, not officially published, it is manifest that the court was of the view that the cause of action was vested exclusively in the personal representative of the deceased; that the widow had no right as such to institute and maintain the action, and that because an action had not been commenced by the party having legal capacity under the Nebraska statute, the cause of action is barred by the statute of limitations. Plaintiff has appealed.

No brief has been filed on behalf of the defendant New Amsterdam Casualty Company, and defendant Consumers Public Power District appears as appellee in this court.

For convenience and brevity we shall hereafter refer to the parties as appellant and appellee.

From the action taken by the trial court and reasons assigned therefor, it is apparent that the court failed to come to grips with what we regard as the crucial issue, to wit: the right of appellant to amend her complaint, after the two-year statutory period had expired, by alleging that she had been duly appointed as personal representative of the deceased's estate and as such had authority to prosecute the same. Resolution of this issue turns on the question of whether an amendment which substitutes a party having legal capacity to sue for one lacking such right but having a beneficial interest in the subject matter, introduces a new and different cause of action. Because of the importance of the question we have made extensive independent research which persuades us to hold that the amendment should have been allowed.

A clear statement of the general rule is found in 16 Am.Jur., Death, § 289, p. 201, in this language:

"The usual rules as to the amendment of pleadings in civil actions generally prevail in regard to the amendment of a declaration, petition, or complaint in an action for death by wrongful act, and the right to amend is subject to the same general limitations as to changing the form of the action, change of parties, and the substitution or introduction of an entirely new cause of action after the statute of limitations has become a bar. Where an amendment to a complaint in an action for wrongful death introduces no new or different cause of action and does not set up any different state of facts as the ground of action, it relates back to the beginning of the suit and the statute of limitations is arrested at that point; but when the amendment introduces a new and different cause of action, it is treated as a new suit begun at the time when the amendment is filed."

Sections 290 and 291 of the same authority are pertinent. In the former it is stated, at p. 202:

"By the weight of authority, if the action to recover for the negligent killing of a person is brought in the name of the wrong plaintiff, the proceedings may be amended to the end that the proper party be made plaintiff therein. * * * Indeed it has even been held, where it was contended that under an amendment bringing in new parties to an action for wrongful death a new cause of action was stated and the statute of limitations had run as to the new parties, that, since no new or different cause of action was introduced, the amendment related back to the commencement of the action and the plea of the statute of limitations was of no avail."

Section 291 is particularly apropos to the instant situation and it states, at p. 203, the rule to be:

"In an action for wrongful death properly maintainable only in the name of the personal representative of the decedent, it has been held that an amendment of the original petition, in such an action, by which the plaintiff sued as sole beneficiary, may be made so as to allege the representative capacity of the plaintiff, since such an amendment introduces no new or different cause of action and sets up no different state of facts as the ground of action."³

The question has been the subject of numerous court decisions, is annotated in 74 A.L.R. 1269; 8 A.L.R.2d 76-90, the latter being supplemented in A.L.R. Supplement Service, 1960, p. 530, §§ 39 and 40, and in A.L.R. Supplement Service, 1962, p. 131, §§ 39 and 40, and was considered in the analysis of the law of limitations appearing in 63 Harvard Law Review 1177, where this statement appears at p. 1239:

"However, * * * where the plaintiff sues in the wrong capacity some courts have experienced considerable difficulty in avoiding the objection that the original action was void, and have thus disallowed the change of the party plaintiff. Nevertheless, the new plaintiff is today usually allowed to take advantage of the former action if the original plaintiff had, in any capacity, either before or after the commencement of the suit, an interest in the subject matter of the controversy." (Emphasis supplied).

The Supreme Court of the United States spoke authoritatively on the subject in Missouri, Kansas and Texas Railway Co. v. Wulf, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355, an action under the Federal Employers' Liability Act of 1908 which required the action to be brought in the name of the personal representative of the deceased.⁴

Aside from being an action under the Federal Employers' Liability Act, which we do not regard as having any controlling significance so far as the instant question is concerned, Wulf, supra, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355, presented the same problem on an almost identical state of facts. The action was commenced by the mother in her individual capacity on January 23, 1909, to recover for the death of her son, which occurred on November 27, 1908. On January 6, 1911, plaintiff filed her amended petition, alleging that on January 4, 1911, she was appointed temporary administratrix of her son's estate with full power and authority to prosecute the suit as party plaintiff. The amendment was allowed, she recovered, and on appeal it was contended that the amended petition filed after the statutory period of limitations of two years, and which for the first time set up a right to sue as administratrix, alleged an entirely new and distinct...