I cannot concur in the conclusion that the fact of the appointment of the administrator August 7, 1928, and the amendment to substitute him as the plaintiff can be related back to May 30, 1928, so as to defeat the statute of limitations which began to run June 1, 1927. By such an amendment the original plaintiff is permitted to shift from the law that denies him the right to maintain the action to the law that confers the right upon the administrator to the exclusion of all others.
In cases of death by wrongful act, the right to maintain the action is given by statute (Shannon's Code, sec. 4025, etseq.), which also prescribed the remedy. As said in 8 R.C.L., 671: *Page 52
"Since the right to recover damages for the death of a human being is purely statutory, the action is maintainable only in the name of the person in whom the right of action is vested by the statutes of the state where the injuries resulting in death are inflicted. Where the statute giving the right specifies who may bring the action, only those persons named may maintain it, and if no such person exists no recovery can be had. The right of the particular person to maintain the action is as essential as the liability of the defendant, and to entitle one to recover damages in such an action he must bring himself clearly within the terms of the statute."
The statute of limitations of one year, Shannon's Code, section 4469, began to run on the date of death (Fowlkes v. Railroad, 8 Heisk., 829), and more than a year elapsed before an administrator was appointed. Until then there was no one authorized by law to institute and maintain the cause of action.
A cause of action includes all the facts which, taken together, constitute the suing party's right to maintain the suit. Mattix v. Swepston, 127 Tenn. 693.
The next of kin could not maintain the action given exclusively to the administrator. Railroad v. Sprayberry, 8 Baxt., 341. The father, as beneficiary, could not maintain it in his individual capacity, because the statute that preserved the right passed it alone to the administrator. Railroad v. Loague,91 Tenn. 458; Railroad v. Leazer, 119 Tenn. 1; Railway v.Doak, 115 Tenn. 720; Davidson Benedict Co. v. Severson,109 Tenn. 572; Holston v. Coal Iron Co., 95 Tenn. 521;Hall v. Railroad, 1 Shann. Cas., 141.
When the administrator was appointed and the amendment offered, the action was barred. The legal effect of the amendment was to discontinue the original action *Page 53 and substitute a new cause of action (Hegerty v. Hughes, 4 Baxt., 222) against which the statute of limitations had run.Macklin v. Dunn, 130 Tenn. 342.
The fiction that an amendment dates back to the commencement of the original process cannot properly be applied to defeat a valid defense of the statute of limitations. In support of this proposition I especially refer to Luster v. Mahoney, 2 Shann. Cas., 514; Simpson v. Markwood, 1 Shann. Cas., 422;Trousdale v. Thomas, 3 Lea, 356; Macklin v. Dunn,130 Tenn. 342, and Gardner v. Quinn, 154 Tenn. 167.
Flatley v. Railroad, 9 Heisk., 230, is directly in point and in accord with previous declarations of the court. The rule there applied has been consistently followed.
In Trousdale v. Thomas, 3 Lea, 716, the court said the practice in this State has always been to allow amendments at any stage of the cause, when it can be done without prejudice to the rights of the parties, but in that case the court held that an amendment could not operate to defeat the statute of limitations.
For other cases in accord see Iron Company v. Broyles,95 Tenn. 612; Hopper v. Railroad, 107 Tenn. 712; Miller v.Taylor, 6 Heisk., 466; Corder v. Dolin, 4 Baxt., 238;Niehaus v. Construction Co., 135 Tenn. 382; Railroad v.Foster, 10 Lea, 351.
In order to avoid the operation of the statute of limitations in cases of this character it would be more consistent with sound principle to overrule cases to the contrary and hold that the cause of action did not accrue and the statute did not commence to run until the administrator was appointed. That would at least minimize the difficulty which the courts encounter in applying the fiction of relation referred to in Macklin v. Dunn,130 Tenn. 350. *Page 54