Weeks v. Cessna Aircraft Co. , 1994 Okla. Civ. App. LEXIS 190 ( 1994 )

REIF, Chief Judge,

specially concurring.

I concur fully with the majority opinion and write specially only to emphasize that there are no jurisdictional impediments to substitution of a personal representative to prosecute a cause of action that is otherwise cognizable and timely filed. In Missouri, Kansas & Texas Railway Co. v. Wulf, 226 U.S. 570, 575, 38 S.Ct. 135,137, 57 L.Ed. 355 (1913), the Supreme Court of the United States upheld the substitution of a personal representative in a Federal Employers Liability Act case that had been originally filed by the parent of the deceased as a wrongful death diversity case. The Supreme Court observed that the case was cognizable from the outset as a FELA action, even though it was pleaded as a wrongful death suit with no mention of FELA and was brought by the parent in her individual capacity. The court approved the later substitution of the personal representative to prosecute the action as required by FELA, despite the fact that the substitution occurred after the running of the statute of limitations. The court held that “[t]he change was in form rather than in substance [and] introduced no new or different cause of action, nor did it set up any different state of facts as the ground of action, and therefore it related back to the beginning of the suit.” Id. at 576, 33 S.Ct. at 137.

The same can be said of the instant wrongful death case brought by the decedent’s parent rather than by the personal representative pursuant to statutory preference. The later substitution of the personal representative will not change the action even though the statute of limitations has passed.