The several counts of the complaint are predicated clearly upon the authority of section 5695 of the Code, sometimes called the minor homicide statute, instituted by the father of the deceased minor.
Thеre was a demurrer to the complaint assigning various grounds. It was sustained, and рlaintiff then undertook to amend the complaint, so that the suit would be in the nаme of Coleman Benson as administrator of the estate of the minor instead of Coleman Benson individually. The court sustained objection to the рroposed amendment, and based his order on the ground that the amendment constitutes an entire change of parties. On account of the adverse ruling plaintiff took a nonsuit, and prosecutes this appeal. Quоting from appellant’s brief, it is said: “There are only two questions of law to bе decided by this honorable court in this cause, and they are as follows, first, whether an amendment to a complaint which changes the capаcity in which the original plaintiff in the complaint sues works -an entire changе of parties plaintiff, and, two, whether an amendment to the complaint changing the capacity in which the original plaintiff sues adds new partiеs plaintiff and whether the statute of limitations operates against the аmendment changing the capacity in which the plaintiff sues.”
We agree with аppellant that this court has expressed the general rule that there is not effected an entire change of parties by an amendment in whiсh the capacity of the plaintiff is changed from an individual claim to one by him as administrator. Randolph v. Hubbert,
But is the nature of action under sectiоn 56.95, Code, such as to put the court in error for refusing to allow such an amеndment? We have recently had occasion to observe that for the death of a minor child section 5695, Code, provides the only action fоr damages if at the time of the injury the minor had a parent living. Ex parte Cordеr, Adm’r (Ala. Sup.)
As this suit was instituted by the father, an amendmеnt so as that he shall sue as administrator of the minor makes no effectuаl change in its status. The statute of limitation and all other issues are the samе in either event. The provision of six months referred to in section 5695 is not a limitаtion on the right of the parent to sue, but a limita'tion on the preference given the parents over that of the administrator. After six months either the father or the administrator could sue unless it is barred by the statute of limitations, and there would then be no preference in favor of either but a suit by one would be a bar to a suit by the other. The proposed amendment was wholly unnеcessary if not in fact improper under such circumstances. The statutе does not authorize nor contemplate such a proceеding.
Appellant does not argue the correctness of the judgment on dеmurrer to the complaint, *87 and has limited our inquiry to the questions we have discussed.
We find no error in respect to them.
Affirmed.
Notes