Ware v. Waterman, 1168

• Citation: 146 Ind.App. 237,253 N.E.2d 708
• Decision Date: 31 December 1969
• Docket Number: No. 1168,No. 1,1168,1
• Parties: Marvin WARE, Appellant, v. Kenneth WATERMAN, As Special Administrator of the Estate of Robert P. Stearns, Deceased, Appellee. A 194
• Court: Court of Appeals of Indiana

Page 708

253 N.E.2d 708

146 Ind.App. 237

Marvin WARE, Appellant, v. Kenneth WATERMAN, As Special Administrator of the Estate of

Robert P. Stearns, Deceased, Appellee.

No. 1168 A 194.

Appellate Court of Indiana, Division No. 1.

Dec. 31, 1969.

Dalton C. McAlister, Fort Wayne, Adair, Perry, Beers, McAlister & Mallers, Fort Wayne, of counsel, for appellant.

Hunt, Suedhoff & Wilks, Fort Wayne, for appellee.

SULLIVAN, Judge.

Appellant-plaintiff appeals here from a summary judgment entered below in favor of the appellee-defendant. Said judgment was as follows:

'Court having taken matter under advisement now sustains Defendant's Motion for Summary Judgment. It is therefore ordered and adjudged that the Plaintiff take nothing by his complaint. Costs taxed to the plaintiff.'

Appellant assigns as error that:

'1. The Court erred in sustaining Appellee's Motion For Summary Judgment.

'2. The Court erred in failing to give its reasons for sustaining Appellee's Motion For Summary Judgment.'

By reason of our decision concerning assignment of error No. 1, consideration of assignment No. 2 is not essential to the result. ¹ Since the crux of this appeal is the application of a statute of limitations, it is deemed appropriate to first set forth the proceedings and events deemed pertinent:

March 11, 1964 Automobile collision alleged to have caused injury to plaintiff-appellant.

July 8, 1965 Robert P. Stearns died.

November 12, 1965 Plaintiff-appellant, without knowledge of Stearns' death, filed suit against Stearns individually in Cause No. 91395 in the Allen Superior Court.

November 22, 1965 Summons returns: 'Robert P. Stearns not found in my bailiwick, deceased.'

March 11, 1966 Expiration of two year limitation for filing actions under Indiana Acts 1881 (Spec.Sess.), ch. 38, § 38, as amended, as found in Indiana Annotated Statutes § 2--602 (Burns Repl.1967).

April 4, 1966 Letters of special administration issued to Kenneth Waterman in the Estate of Robert P. Stearns, deceased.

April 13, 1966 Court granted plaintiff's motion to substitute special administrator as party defendant in Cause No. 91395.

and

'Amended' complaint filed in Cause No. 91395 against Special Administrator and 'alias' summons issued to sheriff for service upon said special administrator. Return of summons made.

May 6, 1966 Defendant filed plea in abatement. Memo attached thereto cited Indiana Acts 1881 (Spec.Sess.), ch. 38, § 7, as amended and as found in Indiana Annotated Statutes § 2--403 (Burns Repl.1967), and advised plaintiff that the alleged defect as cause for abatement could be cured by filing an original action against Kenneth Waterman, as special administrator.

January 8, 1967 Expiration of eighteen (18) month period of limitation for filing action pursuant to Indiana Acts 1881 (Spec.Sess.), ch. 38, § 44, as found in Indiana Annotated Statutes § 2--607 (Burns Repl.1967).

May 8, 1967 Defendant's plea in abatement sustained. Action ordered abated (such order not appealed by plaintiff).

June 1, 1967 'Original' action filed against Kenneth Waterman as special administrator in Cause No. 94611 also in Allen Superior Court.

August 17, 1967 Defendant files answer in two paragraphs, the second of which raises the defense of the statute of limitations.

August 22, 1967 Change of venue from Allen County granted.

September 20, 1967 Venue perfected in Whitley County.

June 26, 1968 Defendant filed motion for summary judgment.

August 21, 1968 Motion for summary judgment sustained; judgment entered for defendant against plaintiff.

At common law, causes of action for personal injury did not survive the death of the alleged tort-feasor. Remedial legislation was effected in Indiana, however, to provide for survival of such causes against the personal representative of deceased alleged tort-feasors. Indiana Acts 1881 (Spec. Sess), ch 38, § 7, as amended and as found in Indiana Annotated Statutes § 2--403 (Burns Repl.1967). Said statute, insofar as pertinent, reads as follows:

'All causes of action shall survive, and may be brought, notwithstanding the death of the person * * * liable to such action, by or against the representative of the deceased party * * *. If any action has been commenced against the decedent prior to his death, the same shall continue by substituting his personal representatives as in other actions surviving the defendant's death; in event the action be brought subsequent to the death of the party against whom the cause existed, then the same shall be prosecuted as other claims against said decedent's estate. * * *'

It is admitted by the parties that the question here is whether plaintiff's action against Kenneth Waterman as special administrator was barred by an applicable statute of limitations. It is conceded by all concerned that the basic two year statute governing tort actions, being Indiana Acts 1881 (Spec. Sess.), ch. 38, § 38, as amended and as found in Indiana Statutes Annotated, § 2--602 (Burns Repl.1967), is inapplicable. The question then is whether either Indiana Acts 1881 (Spec. Sess.), ch. 38, § 44, as found in Indiana Annotated Statutes § 2--607 (Burns Repl.1967), or the Journey's Account statute, ² being Indiana Acts 1881 (Spec. Sess.), ch. 38, § 45, as found in Indiana Annotated Statutes, § 2--608 (Burns Repl.1967), or both are applicable so as to render erroneous the decision of the trial court barring plaintiff's cause of action.

Burns' § 2--607, supra, reads as follows:

'If any person entitled to bring, or liable to any action, shall die before the expiration of the time limited for the action, the cause of action shall survive to or against his representatives and may be brought at any time after the expiration of the time limited, within eighteen (18) months after the death of such person.'

Burns' § 2--608, supra, reads as follows:

'If, after the commencement of an action, the plaintiff fails therein, from any cause except negligence in the prosecution, or the action abate, or be defeated by the death of a party, or judgment be arrested or reversed on appeal, a new action may be brought within five (5) years after such determination, and be deemed a continuation of the first, for the purposes herein contemplated.' (Emphasis supplied.)

In order for the Journey's Account statute, Burns' § 2--608, supra, to be applicable it is necessary that an action must have been commenced timely and must have failed, abated or been defeated as specifically prescribed in said Act. We, therefore, must view the facts of this cause in order to determine whether an action was commenced within eighteen (18) months following the death of the alleged tortfeasor Robert P. Stearns as permitted by Burns' § 2--607, supra.

It is appellee's position that since Burns' § 2--403, supra, does not provide for the substitution of a personal representative in an action commenced against a decedent personally, but rather requires the institution of an original action against the personal representative, such personal representative could not properly be substituted in the action brought against the deceased. Appellee therefore argues that the proceedings of April 13, 1966, were of no force and effect and that accordingly no action was commenced against the personal representative prior to the institution of the direct action against him on June 1, 1967. ³

The most basic maxim concerning when an action is commenced is that the filing of a complaint in the office of the clerk and the issuance of a summons thereon commences the action. Indiana Acts 1881 (Spec. Sess.), ch. 38, § 55, as found in Indiana Annotated Statutes § 2--802 (Burns Repl. 1967).

An action is not a cause number; it is not a piece of paper; it is not a caption on a complaint. It is most fundamentally an allegation or statement of cause in proper form for legal recovery or relief. See Evans v. Evans (1886), 105 Ind. 204 at 210, 5 N.E. 24, 768, Brewington v. Lowe (1848), 1 Ind. 21 at 23.

On April 13, 1966, the act of 'substitution' of Kenneth Waterman, Special Administrator was done at the order and direction of the trial court, which order was as follows:

'Comes now the plaintiff and files Motion to Substitute Party Defendant, To Continue Cause against the said Substituted Party, and for an Order for Alias Process.

'And the Court, being duly advised in the premises, now finds that said Motion should be granted.

'IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that KENNETH WATERMAN, as Special Administrator of the Estate of ROBERT P. STEARNS, deceased, be and he hereby is, substituted as Party Defendant in the within cause, that this action should continue as against the said Special Administrator, and that upon the filing of plaintiff's amended complaint, alias process be issued to the Sheriff of Allen County, Indiana, for service upon the said Special Administrator, returnable the 11th day of May, 1966.'

Plaintiff complied with said order by filing a complaint denominated an amended complaint which, for the first time, stated and alleged a cause for recovery against Kenneth Waterman, as Special Administrator of the Estate of Robert P. Stearns, deceased. The plaintiff also in compliance with said order caused a summons, denominated an alias summons, to be issued against Waterman as Special Administrator. These acts and proceedings met all the requirements of the commencement of an action. It is well establish that pleadings are to be construed and given effect according to their substance and content. The titles or labels placed thereon are not controlling and when such labels or titles are erroneous and in abvious contravention of the substance, they are to be disregarded. It cannot be plausibly argued that a complaint stating for the first time a cause for recovery against a decedent's estate as represented by a named special administrator is an 'amended' complaint merely because it is filed under a cause number previously identifying an identical...