Richard v. Slate , 239 Or. 164 ( 1964 )

PERRY, J.

The admitted facts in this case are that on October 18, 1959, Lncille 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 nonresident 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. Pedersen 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 ommission. 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 P2d 202; Kosciolek v. Portland Ry., L. & P. Co., 81 Or 517, 160 P 132.

2. 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 P2d 243; Cowgill, Adm’r v. Boock, Adm’r, 189 Or 282, 218 P2d 445, 19 ALR2d 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 P2d 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, 186 F2d 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 NC 571, 191 SE 403; Lineberry v. Mebane, 218 NC 737, 12 SE2d 252; 67 ALR 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 SW2d 463; American R. Express Co. v. Reeves, 178 Ark 273, 292 SW 109; Pearson v. Anthony, 218 Iowa 697, 254 NW 10; Forehand v. Hall, 355 SW2d 940 (Mo 1962); Reynolds v. Lloyd Cotton Mills, 177 NC 412, 99 SE 240, 5 ALR 284.

There is language in Griffin v. Workman, 73 So2d 844 (Fla 1954), and Douglas v. Daniels Bros. Coal Co., 135 Ohio St 641, 22 NE2d 195, 123 ALR 761, eases 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 ALE 1269, or which permit amendments as to beneficiaries under the act. Ross v. Robinson, 174 Or 25, 147 P2d 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 P2d 768; Anderson, Adm., v. Clough et al., 191 Or 292, 230 P2d 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. Richards 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 P2d 423:

“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 NC 688, 694, 133 SE2d 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 administration. Thereafter she informed her counsel that she had been appointed, and the error was not discovered until preparations were being made for the trial. She was actually appointed on November 27, 1937, more than two years after the date of death. Thereafter she filed an amended complaint in which she alleged the above facts and attempted to ratify her act in commencing the action. Inter alia, defendant interposed these defenses: (1) Plaintiff did not have legal capacity to sue at the time she instituted the action, and (2) at the time of filing the amended petition the action was barred by the two year statute of limitations for wrongful death actions. The trial court sustained these defenses and directed a verdict for the defendant. The Court of Appeals reversed, quoting from the earlier case of Archdeacon v. Cincinnati Gas & Electric Co., 76 Ohio St. 97, 81 N.E. 152 as follows:

“ * * [T]he motion to dismiss, was based upon a mere technicality. The plaintiff having fully qualified as administrator before the case was reached for trial, every right of the defendants upon the merits of the case was fully preserved, and in no possible aspect could the delay in perfecting the bond and receiving the letters of administration prejudice the defense of the defendants upon the real meritorious question involved in the controversy, which was whether or not the defendants’ negligence was the cause of the death.’ Douglas v. Daniels, 62 Ohio App. 1, 22 N.E.2d 1003.”

The North Carolina court also approves of Pearson v. Anthony, supra, taldng the view, where no valid appointment was made prior to the expiration of the right to maintain the action, the action cannot be maintained. In Pearson v. Anthony, supra, 218 Iowa 697, 698, 254 NW 10, 11, the Iowa court stated:

“On January 27,1931, Max Pearson was injured as a result of a collision which took place between the automobile in which he was riding and a car driven by an employe of defendant. It is alleged that Pearson died during November of 1931 as a result of the injuries received in the collision. On the 9th day of February, 1932, a petition was filed in the Woodbury district court entitled ‘Helen Pearson, Administratrix of the Estate of Max Pearson, Deceased, Plaintiff, vs. L. D. Anthony, Doing Business Under the Name and Style of L. D. Anthony Produce Company, Defendant.’ In the petition it is alleged that ‘the plaintiff is the duly acting and qualified administratrix of the estate of Max Pearson, deceased.’ On February 25, 1932, the defendant filed a motion to strike certain allegations of the petition. On August 29, 1932, an amended and substituted petition was filed, in the opening paragraph of which the motion to strike was confessed and the statement made that the amended and substituted petition was filed in compliance with the confessed motion to strike. On September 21, 1932, defendant filed an answer to the amended and substituted petition, the first paragraph of which is as follows: ‘Defendant admits that he is a resident of Woodbury County, Iowa, but expressly denies that Helen Pearson is administratrix of the estate of Max Pearson, deceased, who died on or about the 20th day of November, 1931, and states the fact to be that no administrator has been appointed of said estate.’

“On the 17th day of February, 1933, more than two years after the accident, letters of administration were granted in the Woodbury district court to Helen Pearson on the estate of Max Pearson, deceased. The record does not disclose the grant by any other court of letters of administration to Helen Pearson on her husband’s estate, or, for that matter, to any other person. On February 18, 1933, the administratrix filed an application in the estate matter stating, among other things, that on the 9th day of February, 1932, the petitioner instituted an action as administratrix of the estate of Max Pearson, deceased, against L. D. Anthony to recover damages for the wrongful death of her decedent; that at the time said action was commenced petitioner had not been appointed administratrix of said estate; that, when she commenced ■said suit, she expected to secure her appointment as administratrix, but, because of lack of funds, had not been able to promptly procure her appointment ; that said suit was commenced for the benefit of the estate, and that the ratification of the commencement of the suit and its prosecution of judgment would be for the best interest of the estate, and asking that her acts in commencing the ■suit be ratified, confirmed, and adopted, and her acts be validated as of the dates performed, and that the administratrix be directed to prosecute the suit to judgment. On February 18, 1933, an order was made by the court as prayed in the application. These proceedings were had in the estate matter, and, so far as defendant is concerned, were ex parte. None of these matters were pleaded in this suit.”

The Iowa court then held, since there had been no personal representative appointed within the two year period of limitations, there was no one in existence to prosecute the case within the time in which the case could be maintained. The party commencing the suit was a mere pretender.

In Graves v. Welborn, supra, the North Carolina court, in reaching the result reached by the Ohio court in Douglas v. Daniels Bros. Goal Go., supra, was careful to point out that it still adhered to the views expressed in Reynolds v. Lloyd Cotton Mills, supra.,- — • that is, that an -action for wrongful death is to be deemed commenced only after a personal representative has been appointed and has become -a party. However, it felt that it was at liberty to adopt the theory of relation back by reason of the fact that the legislature had removed as -an element of the cause from the wrongful death statute the requirement that the action be brought within a period of -one year, and the further fact that plaintiff prior to the filing of her complaint had applied for -appointment and her power to act was restrained only by the fact that the bond required had not been signed by the surety prior to the filing -of the complaint.

It is 'thus clear, a basis of the court’s decision in the Graves case was only the question of the personal representative qualifying, that the qualification related back to the date of her appointment and thus validated her acts made while acting in a capacity that was only voidable not void and subject to ratification. The fact that the attempted appointment could be validated before the general statute of limitations had expired was a basis of the decision is made clear by the court’s pronouncement:

“* * * However, we must not be understood as holding that one who has never applied for letters or who, having applied, had no reasonable grounds for believing that he had been duly appointed, can institute an action for wrongful death, or any other cause, upon a false allegation of appointment and there after validate that allegation by a subsequent appointment. We think that the Iowa Court correctly dealt with a pretender.” Graves v. Welborn, supra, 260 NC 688, 696, 133 SE2d 761, 767.

The attempted appointment of Richard in Multnomah county was utterly void. No action could be taken by any court that would validate those proceedings so they could be related back to the commencement of this action.

It is a rule of general application, when a law grants a right to a party, that party must comply with all the conditions contained in the statute before the statute will grant the benefit.

ORS 30.020 clearly requires that a personal representative must bring the action and this is as much a condition as that the action be commenced within the two year period.

In the matter before us, no personal representative existed within the two year period who could maintain the action, nor were there any proceedings commenced for the appointment within that time that could be validated.

We are, therefore, constrained to hold that, since no personal representative was appointed within the two year period, the attempt to substitute one who had been appointed personal representative after the period had expired was the commencement of a new action.

The judgment of the trial court is affirmed.