Lillie Martin GRAVES
v.
Terry White WELBORN, t/a Welborn Electric Company.
No. 609.
Supreme Court of North Carolina.
December 19, 1963.Elreta Melton Alexander, Greensboro, for plaintiff appellant.
Hines & Boren and Jordan, Wright, Henson & Nichols, Greensboro, for defendant appellee.
SHARP, Justice.
The right of action for wrongful death is purely statutory. It may be brought only "by the executor, administrator or collector of the decedent." G.S. § 28-173. A widow, as such, has no right of action for the death of her husband. Howell v. Comrs., 121 N.C. 362, 28 S.E. 362. If an action for wrongful death is instituted by one other than the personal representative of a decedent, duly appointed in this State, it should be dismissed, Carr v. Lee, 249 N.C. 712, 107 S.E.2d 544; Journigan v. Ice Co., 233 N.C. 180, 63 S.E.2d 183; Monfils v. Hazlewood, 218 N.C. 215, 10 S.E.2d 673, and a separate and independent action instituted by such representative. Hall v. Southern R. Co., 149 N.C. 108, 62 S.E. 899. The court has no authority, over objection, to convert a pending action which cannot be maintained into a new and independent action by admitting a party who is solely interested as plaintiff. Orkin Exterminating Co. v. O'Hanlon, 243 N.C. 457, 91 S.E.2d 222. However, should the personal representative be permitted to become a *763 party to an unauthorized action for wrongful death, the action is deemed to have been commenced only from the time he became a party. Hall v. Southern R. Co., supra; Reynolds v. Cotton Mills, 177 N.C. 412, 99 S.E. 240, 5 A.L.R. 284; Home Real Estate, Loan & Insurance Co. v. Locker, 214 N.C. 1, 197 S.E. 555.
Prior to the enactment of Chapter 246, Sess.Laws of 1951 (now codified as G.S. § 1-53(4)) which amended G.S. § 28-173, the institution of an action for wrongful death within one year after such death was a condition precedent to maintaining the action. All other requirements of the section were also strictly construed. See annotation to G.S. § 28-173. The amendment removed the time limitation as a condition annexed to the cause of action and made it a two-year statute of limitations. McCrator v. Stone & Webster Engineering Corp., 248 N.C. 707, 104 S.E.2d 858.
The majority rule is that an amendment which changes the capacity in which a plaintiff sues does not change the cause of action so as to let in the defense of the statute of limitations. Annot., 74 A.L.R. 1269; Lopez v. United States, 4 Cir., 82 F.2d 982, 987. That rule has not been followed in North Carolina. Bennett v. North Carolina R. Co., 159 N.C. 345, 74 S.E. 883. However, plaintiff did not purport to institute the instant case in her individual capacity. In the first paragraph of the complaint she alleged that she was the duly appointed and acting administratrix of Graves. "An allegation by one describing himself as administrator of a designated estate is sufficient to show that he sues as such." 21 Am. Jur., Executors and Administrators § 947.
It is true that in the caption of the complaint and summons plaintiff did not designate herself as administratrix. When a suit is brought by a fiduciary he should indicate his representative capacity in the caption of the pleadings, but the character in which a party sues must be determined from the complaint and not from the caption. Savannah Sugar Refining Co. v. Royal Crown Bottling Co., 259 N.C. 103, 130 S.E.2d 33; 39 Am.Jur., Parties § 6.
Bennett v. North Carolina R. Co., supra, involved an action for wrongful death commenced by the widow of the decedent on July 4, 1910. An examination of the record of that case reveals (as the reported case does not) that she alleged in her complaint that she had been duly appointed as administratrix. The complaint itself had no caption but in the caption of the summons the plaintiff's name appeared only as an individual. On March 11, 1912, the defendant moved to dismiss because plaintiff "failed to file a complaint in this action as required by statute." The plaintiff then moved to amend the summons by adding the word "administratrix" after her name. The judge allowed this motion. The Supreme Court reversed and dismissed the action saying that the effect of the amendment was "to change the entire character of the action and to convert that which was the individual action of Mary E. Bennett into one by her in her representative capacity as administratrix." The court held this could not be done more than a year after the death. On the record the Bennett case appears to have been wrongly decided.
Ordinarily an amendment of process and pleadings may be allowed in the discretion of the court to correct a misnomer or mistake in the name of a party where the amendment does not amount to a substitution or entire change of parties. Bailey v. McPherson, 233 N.C. 231, 63 S.E.2d 559. In the instant case had plaintiff in fact been the duly appointed administratrix at the time the complaint was filed, there is no question but that the court would have had plenary power under G.S. § 1-163 to permit the plaintiff to amend the caption in order to designate herself as administratrix in conformity with the allegation in the complaint.
However, the right to amend is not the primary question here. The difficulty in this case is that at the time plaintiff filed her *764 complaint alleging that she was the duly appointed administratrix of Graves, that allegation was denied and it was not true. At that time the cause of action for wrongful death was not barred by the applicable two-year statute of limitations. When her letters were actually issued, however, her intestate had been dead more than five years. It is obvious, therefore, that unless the plaintiff's appointment as administratrix related back to the institution of this action, or to the time the order adjudicating her right to letters was signed, it cannot survive defendant's denial of the allegations in paragraph one of the complaint.
In order to protect property rights and to protect one who, prior to his appointment, has acted to preserve the estate, it is the universal rule that all previous acts of the personal representative prior to his appointment which were beneficial in nature to the estate and which would have been within the scope of his authority had he been duly qualified, are validated upon his appointment which relates back to the death of the intestate for this purpose. Jones v. Jones, 118 N.C. 440, 24 S.E. 774; 21 Am. Jur., Executors and Administrators § 211; see Annot., 26 A.L.R. 1359.
Although the appointment of an administrator relates back to the date of the death of decedent for many purposes, the courts are not in accord as to whether it will relate back so as to validate an action brought prior to the appointment.
In Gatfield agt. Hanson et al., 57 How. Pr. (N.Y.) 331, the heirs, not purporting to act for the estate, instituted the action to collect a mortgage which decedent owned at the time of her death. Thereafter one of them was appointed administrator. In dismissing the action, the court said: "As John H. Gatfield had no legal title or right to the mortgage when the action was commenced, his subsequent appointment cannot uphold the suit. The question is, what right had he when he instituted the suit? His subsequent appointment as administrator de bonis non cannot give validity to an action commenced before the appointment. * * *"`
In Pearson v. Anthony, 218 Iowa 697, 254 N.W. 10, decedent died November 20, 1931. On February 9, 1932, his wife, alleging that she was the duly appointed administratrix, instituted an action to recover damages for his wrongful death. The truth was that she expected to be appointed sometime in the future but, because of a lack of funds she had not secured her appointment. She was actually appointed on February 17, 1933after the statute of limitations had barred the action. The court said the question was whether the action of an individual pretending to act as administratrix were effective to commence the action and thereby avoid the bar of the statute of limitations. It answered the question in the negative and dismissed the suit.
In Clinchfield Coal Corporation v. Osborne's Adm'r, 114 Va. 13, 75 S.E. 750, (1912) suit was brought in the name of K as administrator of the estate of O to recover damages for the wrongful death of O from the defendant Coal Corporation. No question of the statute of limitations was involved. After verdict it was discovered that by some mistake or inadvertence no order had been entered appointing K administrator. The order of appointment was then signed and judgment entered upon the verdict. Upon appeal, the case was sent back for a new trial on other grounds, but the court held that the appointment after verdict was valid and related back to the institution of the action. Among other authorities, it relied upon Doolittle v. Lewis, 7 Johns.Ch. (N.Y.) 45, 49, 11 Am.Dec. 389, in which Chancellor Kent was quoted as follows: "If a party sues as executor or administrator, without probate or taking out letters of administration, the taking them out at any time before the hearing will cure the defect and relate back so as to make the bill good from the beginning. In a light so merely formal is that omission viewed."
In Griffin v. Workman, Fla., 73 So. 2d 844, G died on November 28, 1950. On *765 November 26, 1952 plaintiff, the father of the decedent, instituted an action for his wrongful death as administrator of his estate. At that time the father was not the administrator. Two days later he petitioned for appointment and an order was entered reciting that upon taking the oath and filing the specified bond, letters would be granted. Letters were actually issued on January 31, 1953. On January 9, 1953 defendant moved to dismiss the action and the trial court allowed the motion. In reversing the dismissal, the Supreme Court reasoned: The death action was the only asset of the estate; the suit was brought by the person entitled to administer; no fraud or inequity was involved and no new cause of action was presented by allowing the father to prosecute the action to a conclusion. "We think, therefore," said the court, "that the issue is ruled by the ancient doctrine `that whenever letters of administration or testamentary are granted they relate back to the intestate's or testator's death. * * *'" No plea of the statute of limitation was there involved, but the court said that such a plea would not necessarily have changed its conclusions.
In Anderson v. Union Pac. R. Co., 76 Utah 324, 289 P. 146, plaintiff, alleging that he was the administrator of G's estate, instituted an action to recover for the wrongful death of his intestate. Although the district court had entered an order for plaintiff's appointment and he had filed his bond as directed in the order, on the trial it was discovered that he had failed to take the oath of office. Consequently, his letters had not been issued. During the trial plaintiff took the oath and letters were issued. The court held that the letters related back to the time of the order validating the institution of the action which was for the benefit of the estate.
It is a long established rule in the Federal courts that a lack of letters of administration may be cured, and an objection to want of capacity to sue, may be avoided by amendment or by substitution of the proper party at any time before hearing. Later appointments of this nature will relate back and validate the proceedings from the beginning regardless of the statute of limitations. Lopez v. United States, supra; Deupree v. Levinson, 6 Cir., 186 F.2d 297 and cases therein cited.
A case on all fours with the instant case is Douglas v. Daniels Bros. Coal Co., 135 Ohio St. 641, 22 N.E.2d 195, 123 A.L.R. 761. 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 *766 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.
On appeal, the Supreme Court of Ohio sustained the Court of Appeals, saying:
"The amendment corrects the allegations of the petition with respect to plaintiffs' capacity to sue and relates to the right of action as contradistinguished from the cause of action. A right of action is remedial, while a cause of action is substantive, and an amendment of the former does not affect the substance of the latter. See 1 Bouv.Law Dict., Rawles Third Revision, page 295; Pomeroy's Code Remedies, 5th Ed., 526 et seq., Section 346 et seq.; 1 Cyc., 642. An amendment which does not substantially change the cause of action may be made even after the statute of limitations has run.
"* * *
"We hold that where a widow institutes an action as administratrix, for damages for the wrongful death of her husband, under the mistaken belief that she had been duly appointed and had qualified as such, thereafter discovers her error and amends her petition so as to show that she was appointed administratrix after the expiration of the statute of limitation applicable to such action, the amended petition will relate back to the date of the filing of the petition, and the action will be deemed commenced within the time limited by statute."
This case was the subject of an annotation in 123 A.L.R. 768 (1939) in which the commentator stated that no other case had been found which involved the question of an amendment to a complaint after limitation had run, so as to allege the subsequent valid appointment of a plaintiff who had professed to bring the action initially in his representative capacity as executor or administrator.
The Ohio Court has since made it clear that the doctrine of relation back validates only those actions of a personal representative which are for the benefit of the estate. Where it was discovered that letters of administration had been applied for but not issued to the defendant administrator until after the expiration of the statute of limitations as to a tort action against the estate, the court held there was no relation back. Wrinkle v. Trabert, 174 Ohio St. 233, 188 N.E.2d 587.
We think that the reasoning of the Ohio Court in Douglas v. Daniels Bros. Coal Co., supra, is sound and applicable to the facts of the instant case. Unlike Pearson v. Anthony, supra, our case was not instituted by one pretending to be the administrator. Plaintiff, in good faith, and with some reason, albeit mistakenly, believed herself to be the duly appointed administratrix of the estate of Paul Junior Graves at the time she instituted the suit. Prior to the filing of the complaint plaintiff had applied for appointment; the Clerk had entered an order adjudging that she was entitled to letters of administration upon taking the oath and giving the bond. She had taken the oath, signed the bond as principal, and left it with the Clerk pending the signature of the surety. The bond recites that it was signed, sealed, and delivered in the presence of Madge C. Parker, Assistant Clerk of the Superior Court of Guilford County on August 7, 1958. The signature of the surety was the only remaining requirement for the issuance of letters. It is noted that the claim for wrongful death was the only asset of the estate and at that stage of the proceedings a nominal bond would have sufficed.
*767 The basis of defendant's motion to dismiss the action is wholly technical. He has in nowise been prejudiced by the course of events. We therefore hold that, when issued, plaintiff's letters related back to the commencement of the action which was brought for the benefit of the estate prior to the bar of the statute of limitations, and that the complaint may properly be amended to allege the true facts. 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 thereafter validate that allegation by a subsequent appointment. We think that the Iowa Court correctly dealt with a pretender.
For the reasons stated, the order of the court below dismissing the action is
Reversed.