This сase is in this court on appeal from the denial of the original plaintiffs motion to add additional parties plaintiff to the complaint.
Charlie Gordon, Jr., brought a complaint on May 21, 1971, in the Superior Court of Clarke County and against Patricia Gillespie seeking recovery of damages in amount of $10,814.85, alleging that his father, Charlie Gordon, Sr., was killed on February 8, 1971, as the result of the negligence of the defendant. Paragraph 4 of the petition alleged that plaintiff was one of the children of Charlie Gordon, Sr., and also the administrator of the estate of Charlie Gordon, Sr.; and in paragraph 10 alleged: "Plaintiff brings this action to recover the full value of his father’s life, to recover for the pain and suffering of Charlie Gordon, Sr., and the medical and funeral expenses incurred as a result of the injuries оf said Charlie Gordon Sr.,...” (Emphasis by the court.) The prayer was for the recovery of the amount of damages previously alleged. There was no separate allegation as to the full value of the life of the father or the other damages sought.
The defendant was duly served with a petition and process and after two extensions for the filing of responsive pleadings, filed his response on July 14, 1971, and sought dismissal of the action because it did not show the plaintiff was the sole surviving child of Charlie Gordon, Sr., and that the other surviving children were indispensable parties to the action. It also sought dismissal because the complaint failed to allege that Charlie Gordon, Sr. had no wife surviving at the time of his death. At the same time the defendant served interrogatories upon the complainant. The complainant’s answers disclosed that the wife of Charlie Gordon, Sr. predeceased him and that eight named children, including the complainant, survived the father; and that they were not named as plaintiffs "because of complainant’s lawyer,” The answer to the interrogatoriеs was dated February 29, 1972, and filed in court on March 5, 1972.
On September 13, 1974, the defendant amended her *370 responsive pleadings, setting up the following additional defense: "The plaintiff, Charlie Gordon, Jr., is one of eight (8) surviving children of Charlie Gordon, Sr., and in the event of a recovery by the plaintiff against the defendant in this civil action for the alleged wrongful death of Charlie Gordon, Sr. (and defendant denies that the plaintiff is entitled to have any such recovery), plaintiff would be entitled to recover from the defendant only 1/8 of any sum which may be found as damages for such alleged wrongful death.” On November 22, 1974, complainant sought to add five of the other children as parties plaintiff to the action, alleging that they constituted "the known surviving children of Charlie Gordon Sr., deceased, and his wifе, who predeceased him.”
The motion to amend alleged that the five named additional children had consented to be joined as parties plaintiff to the action and alleged: "... it is necessary that said persons be joined as party Plaintiffs if complete relief is to be accorded those already named as parties, as apрears more fully from the affidavit attached hereto.” The prayer was that the five other children named be joined as parties to the action, pursuant to Section 19 of the Civil Practice Act. Attached to the motion was the consent to be joined as parties by the additional five children, as well as an affidavit of the complainant, which in part was as follows:
"1. That at the time of filing this suit it was my intent and understanding that by suing for the 'full value of the life’ (paragraph 5 of Plaintiffs Complaint) of my father, Charlie Gordon, Sr., I was suing for both my individual interest and on behalf of all my brothers.
"2. That it was not my intent or understanding that I was suing just for my share alone of the value of my father’s life.
"3. That at the time of filing this suit it was my intent and understanding that I was also suing in a representative capacity as Administrator of my father’s estate for medical expenses, funeral expenses and for the pain and suffering of my father. It is my understanding that paragraph 4 and 10 of Plaintiffs complaint accomplished this purpose.
"4. That since filing this suit I have recently *371 changed attorneys.
"5. My new attorney has informed me that a suit for the wrongful death of a father, when the mother is already deceased, must be brought in the names of all the surviving children of the father.
"6. That my mother was deceased at the time of the death of my father.
"7. That at the time of my father’s death the known surviving children of my father were: myself, Edgar Gordon, Claude Gordon, Willie Gordon, Freddy Gordon and Seyborn Gordon.
"8. That it is now necessary to amend my complaint to add my said brothers as party Plaintiffs and also to show that I was suing both as an individual and representative of my father’s estate, which is what I intended and thought I had done when the original complaint was filed.
"9. That this motion to add my brothers as party Plaintiffs is not intended to delay this suit but is for the sole purpose of providing for a just adjudication for the parties involved.”
The defendant objected to the grant of the motion to amend on the grounds that the complaint on its face shows that any claim for relief by the additional parties sought to be added was barred by the statute of limitation (objections 1 and 2); that the persons sought to be added as parties plaintiff are not necessarily parties to the action (objection 3); that the persons sought to be added as рarties plaintiff do not constitute all of the surviving children of Charlie Gordon Sr. (objection 4); that the motion to add parties was not timely filed (objection 5), and that plaintiff had no standing to seek to add parties (objection 6). The trial judge sustained grounds 1,2 and 5, and overruled grounds 4 and 6. His order reads in part as follows: "The court determines that the rights of the persons sought to be added as parties plaintiff are severable from the rights sought to be asserted by the original Plaintiff in this cause; and that the rights of parties sought to be added as additional parties plaintiff are barred by the statute of limitations. The court further finds that the persons sought to be added as additional parties plaintiff are not necessary parties to thе
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determination of the issues between the original Plaintiff and the Defendant herein. See
Walden v. Coleman,
1. Prior to the enactment of the Civil Practice Act and Section 15 (c) thereof (Ga. L. 1966, pp. 609, 627; Ga. L. 1972, pp. 689, 694; Code Ann. § 15 (c)) it was held that in cases where more than one party must bring an action, and where the original petition, although not brought in the names of all the parties plaintiff, was brought within the period of limitation for the institution of the suit, the suit was not barred by the statute of limitation because of the failure within the period of the statute to make all the necessary parties plaintiff; and that an amendment to the petition adding additional parties plaintiff who were necessary parties, made after the period of the statute of limitation, relates back to the bringing of the suit, and the suit stands as if it was originally brought in the name of all the parties and within the period of the statute of limitation. See
Wallace v. Brannon,
The trial judge, because of a ruling in
Walden v. Coleman,
The basis of the trial judge’s conclusion, of course, is that he construes the above case to hold the surviving children, under Code § 105-1302, may bring separate actions against the defendant and seek only the recovery of their particular share of the full value of the life of the father, and they are, therefore, not necessary parties under the above rule. Pretermitting a decision on whether the ruling in
Walden v. Coleman,
Section 15 (c) of the Civil Practice Act (Ga. L. 1966, pp. 609, 627, as amended by Section 6 of the Act of 1972, pp. 689, 694; Code Ann. § 81A-115 (c)) reads as follows: "Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or oсcurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back to the date of the original pleadings if the foregoing provisions are satisfied, and, within the period provided by law for сommencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.” The Act of 1972 added the lаst sentence to the Section. This Section is now an exact duplicate of Rule 15 (c) of the Federal Rules of Civil Procedure as amended in 1966. The application of this rule by the federal courts may be of assistance in the present case.
While the language added by the amendment of 1972 (1966 of the Federal Rules) seems to apply only to an
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amendment as to a defendant, the Section is also applicable to amendments as to plaintiffs and has so been applied by the federal courts and by the courts of this State. As to this rule, there was a tendency in the federal courts to apply the new rule too strictly by limiting amendments to the same "cause of action” and limiting the admission of new рarties to the case. It is now well settled, however, that relation back occurs both as to the plaintiff and the defendant when the new and old parties have such an identity of interest that it can be assumed, or proved, that relation back is not prejudicial; and that the new "cause of action” "arose out of the conduct, transaction, оr occurrence set forth or attempted to be set forth in the original pleadings. . .” provided other requirements are also met. See
Sam Finley, Inc. v. Interstate Fire Ins. Co.,
"The Federal Rules have broadened the meaning of the concept of'cause of actiоn,’ shifting the emphasis from a theory of law as to the cause of action, to the specified conduct of the defendant upon which the plaintiff relies to enforce his claim. And an amendment which changes only the legal theory of the action, or adds another claim arising out of the same transaction or occurrence, will relate bаck.” Moore’s Federal Practice, Vol. 3, § 15.15 [3], pp. 1027-1029.
That the "cause of action” here meets the requirements of 15 (c) cannot be doubted, nor can the identity of interest of the original party complainant and *376 those sought to be added as parties. The defendant was also clearly on notice of the "cause of action” sought to be asserted and is not prejudiced for lack of such notice.
In this connection see Williams v. United States, 405 F2d 234 (12 ALR Fed. 224), in which a mother, as next friend, of a minor child sued for injuries to the child and by subsequent amendment, after the statute of limitation had run, was allowed to add herself as a party suing in her own behalf for recovery for loss of services of the child; De Franco v. United States, 18 FRD 156, in which an individual brought an action within the statutory period allowed for refund of taxes paid by a partnership and subsequently was allowed, under Rule 15 (c), to amend and add the remaining partners; Holmes v. Pennsylvania New York Central Transp. Co., 48 FRD 449, in which a death action brought by a wife and minor child was amended after the statute of limitation had run by adding as a party plaintiff a duly qualified representative of the decedent.
A question remaining as to the diligence or lack of diligence of the complainant is dealt with in Division 2 of the opinion.
2. The objection that the motion to amend was not timely is not sufficient alone to bar amendment. The primary question for consideration of this court is whether the allowance of their proposed amendment will work an injustice upon the defendant, and the timeliness of the motion for leave to amend is one of the elements to be considered. However, in and of itself, delay is not enough to warrant the denial of such a motion. It must be shown that to allow the amendment will result in prejudice to the opposite party. Fli-Fab, Inc. v. United States, 16 FRD 553, 556, 21 FR Serv. 15a.21, Case 1. Or as stated in 3 Moore’s Federal Practice, § 15.08 (4), p. 901: "It should be particularly noted, however, that while laches and unexcused delay may bar a proposed amendment, the mere fact that an amendment is offered late in the case is not enough to bar it if the other party is not prejudiced.” (Emphasis supplied.) That the amendment might relate back and bar the application of the statute of limitation is not the prejudice referred to in that statement. If this were not so, then any amendment which related back so as *377 to bar the application of the statute of limitation would be prejudicial and the whole purpose of Section 15 (c) would be avoided. The burdеn is on the party seeking amendment to show lack of laches or lack of unexcusable delay. The plaintiff here attempted to do so with his affidavit attached to the motion. There was no finding by the trial judge that the plaintiff was guilty of laches or unexcused delay in offering the proposed amendment, nor does it appear that he based his judgment thеreon. It further appears that he did not exercise his discretion but placed his decision solely on the grounds of legal conclusions not sustainable under the applicable law as previously demonstrated. For these reasons, and these alone, we reverse the trial judge and remand the case for further hearing and determination, in accordance herewith.
Judgment reversed with direction.