147 P.2d 204 | Or. | 1944
Action by Frank P. Ross, administrator of the estate of Lyna M. Ross, deceased, against Everett E. Robinson for death by wrongful act. From a judgment for defendant, plaintiff appeals.
REVERSED. The question for decision is whether the plaintiff's action is barred by the statute of limitations. The action is for death by wrongful act, and the right to bring it is conferred by § 8-903, O.C.L.A., which reads as follows:
"When the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former for the benefit of the widow or widower and dependents and in case there is no widow or widower, or surviving dependents, *27 then for the benefit of the estate of the deceased may maintain an action at law therefor against the latter, if the former might have maintained an action, had he lived, against the latter, for an injury done by the same act or omission. Such action shall be commenced within two years after the death, and damages therein shall not exceed $10,000."
On December 23, 1939, the plaintiff Frank P. Ross, as administrator of the estate of Lyna M. Ross, deceased, filed a complaint alleging that Lyna M. Ross came to her death on December 14, 1939, as the result of certain specified negligent acts of the defendant Everett E. Robinson in the operation of an automobile, and that the estate of Lyna M. Ross, deceased, had thereby been damaged in the sum of $10,000.00, for which judgment was prayed. A jury trial resulted in a judgment for the plaintiff. On appeal to this court the judgment was reversed. We held that the complaint, which was challenged by demurrer, did not state facts sufficient to constitute a cause of action, for the reason that it failed to negative the existence, at the time of the decedent's death, of the preferred beneficiaries named in the statute, namely, a widower and surviving dependents: Ross v.Robinson,
Thereafter, on January 4, 1943, the plaintiff filed an amended complaint, which is, in substance, the same as the original complaint except that it alleges that "plaintiff Frank P. Ross is the surviving widower of the said Lyna M. Ross, deceased, and that she left no *28 other dependents, and by reason of the death of said Lyna M. Ross, the said Frank P. Ross was and is damaged in the sum of Ten Thousand ($10,000.00) Dollars." Judgment for the benefit of Frank P. Ross was prayed for accordingly.
The defendant demurred to the amended complaint on the ground that the action was barred by the provision of § 8-903, O.C.L.A., that the action shall be commenced within two years after the death. The court sustained the demurrer and entered judgment for the defendant. The plaintiff has appealed.
It is the defendant's position, and was evidently that of the trial judge, that the cause of action stated in the amended complaint, instead of being a mere continuance of that stated in the original complaint, is in fact a wholly new and different cause of action, asserted on behalf of a different beneficiary and governed in certain particulars by different rules of law, and that, since this new action was not filed within two years after the death of Lyna M. Ross, the plaintiff has not brought himself within the limitation of the statute and the action must fail.
The defendant relies on Fox v. Ungar,
"Although the statute, under applicable facts, authorizes the bringing of these actions the rights and remedies of the parties in the two actions are not the same, each cause of action being dependent upon a different state of facts". (
164 Or. 231 .)
In some important respects the two cases are alike. Here, as inFox v. Ungar, the persons on whose behalf recovery is sought in the two complaints are different, as is the measure of damages(Nordlund v. Lewis Clark Railroad Co.,
It is a general rule that "an amendment of a pleading will take effect by relation and thus relieve against the bar of an intervening limitation if the identity of the cause of action is still substantially the same, but that the limitation will prevail if under the guise of an amendment there is the substitution of a new cause of action in place of another wholly different." United States v. Memphis Cotton Oil Co., (1933)
In the application of this rule, as of many other general principles of law, courts have differed. The conflicting results which have been reached in cases presenting similar facts seem to be influenced largely by the particular court's conception of the meaning of the term, "cause of action", and to some extent, perhaps, by a rigid and technical attitude on the one hand, or a liberal disposition on the other, towards the exercise of the right of amendment by a party desirous of staying in court and having a trial on the merits, as against the effort of his opponent to turn him out of court with a plea of the statute of limitations. This divergence of view is brought into sharp focus by the case of Hooper v. Atlanta, K. N. Ry. Co., (1901)
Familiar tests sometimes resorted to for determining whether there has been a change in the cause of action are: that recovery upon the original complaint would have barred recovery upon the amended pleading; that the measure of recovery is the same in each case; that substantially the same evidence would support both pleadings; and that the allegations of each are subject to the same defenses: 37 C.J., Limitations of Actions 1076 § 512. See East Side Mill Lumber Co. v. Southeast Portland LumberCo.,
"A departure from law to law", the court said in United Statesv. Memphis Cotton Oil Co., supra, "has at times been offered as a test" of change in the cause of action. Hall v. Louisville N.R. Co., (1907) 157 F. 464, illustrates the application of this test. But, as the Supreme Court said in the Memphis Cotton Oil Company case, "later decisions have made it clear that this test is no longer accepted as one of general validity." CitingMissouri, K. T. Ry. Co. v. Wulf, (1913)
There are a few cases which hold that an amendment changing the capacity in which the plaintiff sues, as, for example, from that of an administrator to his individual capacity, is effective to change substantially the cause of action and let in the defense of limitations. But, as the annotation in 74 A.L.R. beginning at p. 1269 shows, in the great majority of jurisdictions the courts say that such a change is in form rather than substance. SeeMissouri, K. T. Ry. Co. v. Wulf, supra; Quaker City Cab Co.v. Fixter, (1925)
In the case at bar the argument most vigorously pressed by counsel for the defendant is that an amendment changing the beneficiary and, therefore, the amount of the recovery, is, in effect, the commencement *33
of a new action. Authorities are cited by the defendant to support that contention. Hall v. Louisville N.R. Co., supra;Atlanta K. N. Ry. Co. v. Hooper, supra; Rankin v. Central R.Co. of New Jersey, (1908)
In the Hall case the widow of an employee of an interstate railroad brought suit against the company in a state court of Florida to recover for the death of her husband, under a Florida statute which gave such right to the widow alone, if there should be a widow. She amended her declaration by changing the capacity in which she sued to that of administratrix, suing for the benefit of herself and her three children, so as to bring the action within the provisions of the Federal Employers' Liability Act. This was held to be in effect the bringing of a new action, which was barred because the statute of limitations had run before the amended declaration was filed.
As authority for its decision the court relied principally on the case of Union Pacific Ry. Co. v. Wyler, (1895)
Beginning with Missouri, K. T. Ry. Co. v. Wulf, supra, there is a series of decisions in the Supreme Court which have greatly limited, if they do not in effect overrule, the Wyler case. As already noted, the "departure from law to law" test was repudiated in United States v. Memphis Cotton Oil Co., supra. In the Wulf case the court held that where the original petition in an action brought by the sole surviving parent of the deceased asserted a cause of action for wrongful death against a railroad under a Kansas statute, and the plaintiff later amended her complaint by setting up her right to sue as personal representative under the Federal Employers' Liability Act, this was not equivalent to the commencement of a new action so as to let in the defense of the statute of limitations. The Wyler case was distinguished because in the Wulf case the amended complaint did not allege a different set of facts as the ground of liability, and the original petition, as construed by the court, stated a cause of action under the federal statute.
The cases involving the Federal Employers' Liability Act are assembled in an annotation in 8 A.L.R. beginning at p. 1045, and, as stated by the commentator at p. 1406, while many of the decisions, of which the Wulf case is one, seem to result from a liberal construction of the pleadings by which the courts "have construed the original complaint as stating, though defectively, a cause of action under the Federal statute", yet there are a number of authorities which seem "to *35 take the view that a complaint which attempts to state a cause of action at common law, or under a state statute, and does not allege facts sufficient to bring the case under the Federal Employers' Liability Act, may be amended so as to bring the case within that act, although the period of limitations prescribed thereby has elapsed * * *".
See in this connection Seaboard Air Line Ry. v. Koennecke, supra; Seaboard Air Line Ry. v. Renn, (1916)
The case of Hall v. Louisville N.R. Co., supra, however, apparently presents this difference from the Supreme Court cases above cited, that under the Florida statute the widow alone was entitled to the recovery, while, under the federal statute, she might *36 recover, as administratrix, for all damages sustained by herself and her three children, and the amendment was said to "introduce a new right, or new matter, not within the lis pendens and the issue between the parties". So far as we are advised, the question, as thus presented, has not been directly passed on by the Supreme Court.
Of the remaining cases relied on by the defendant, some clearly support his position, others are as clearly distinguishable; but, since the Hall case sufficiently illustrates the theory upon which the courts taking that view proceed (as does Fox v. Ungar, supra), we think nothing is to be gained by reviewing these decisions. It is enough to say that there is authority for the defendant's contention, and also, as will presently be shown, there is authority against it; and that, for reasons which will be stated, we have reached the conclusion that to hold that the amendment here in question was equivalent to the commencement of a new action, which is now barred by the statute of limitations, would be contrary to what we believe is the more enlightened modern judicial view of the subject. The principal function of pleadings is to enable litigants to bring their controversies to trial on the merits, and, generally speaking, the rules concerning pleadings should not be permitted to defeat a party's right to a trial except when to do otherwise would be unjust to his adversary or violate some express command of the statute. We have long since left behind us the day when "the fundamental principles of right and justice which courts were created to uphold and enforce were esteemed of minor importance compared to the quibbles, refinements, and technicalities of special pleading", and the courts "adopted so many *37 subtle, artificial, and technical rules governing the statement of actions and defenses * * * that in many cases the whole contention was whether these rules had been observed, and the merits of the case were never reached, and frequently never thought of": McDonald v. Nebraska, (1900) 101 F. 171, 182 (8th Cir.), cited in Missouri, K. T. Ry. Co. v. Wulf, supra.
"Statutes of limitation * * * `are founded upon the general experience of mankind, that claims which are valid are not usually allowed to remain neglected.'" Weber v. State HarborCommissioners, (1873)
With respect to a comparable situation, it was said by one of America's most illustrious judges:
"Of course, an argument can be made on the other side, but when a defendant has had notice from the beginning that the plaintiff sets up and is trying to enforce a claim against it because of specified conduct, the reasons for the Statute of Limitations do not exist, and we are of opinion that a liberal rule should be applied." (Italics supplied). Mr. Justice Holmes in New York C. H.R.R. Co. v. Kinney, supra.
Again Mr. Justice Holmes wrote:
"The cause of action arose under a different law by the amendment, but the facts constituting the tort were the same, whichever law gave them that effect, and the court was warranted in thinking that on the matter of dependency there was no surprise." (Italics supplied.) Seaboard Air Line Ry. Co. v. Koennecke, supra.
The case of Neubeck v. Lynch, (1911)
The court further said:
"It should not be the policy of the courts to defeat justice by indulging in mere technicalities and fine-spun theories of pleading. Where an amendment does not operate totally to confer jurisdiction, or to change the cause of action or shift the right of action, but merely supplies an additional element essential to a proper statement of a cause of action defectively stated, or an additional jurisdictional averment essential to clothe the court with complete power to conduct the suit to a legal conclusion, it should be allowed."
It was accordingly held that the amendment related back in point of time to the filing of the original declaration.
Like rulings are to be found in Love v. Southern Railway Co., (1901)
"We hold, therefore, under the rulings of this court, that the amendment in question did not introduce *40 a new cause of action, but merely substituted the name of the true statutory beneficiary for the name inadvertently used."
It is true that the court construed the Tennessee death statute as a survival statute, which ours is not, and held that the plaintiff sued in the right of the deceased, but that does not alter the fact that the amended petition was filed on behalf of a different beneficiary, and that the measure of recovery was different. Essentially, we think, there is no ground of distinction from the instant case.
As above stated, this case was also before the United States Circuit Court of Appeals (Atlanta K. N. Ry. Co. v. Hooper, supra), which, prior to the decision of the Tennessee court, had announced a contrary ruling in an opinion by Circuit Judge Taft, who said:
"To change the beneficiary, under the statute, changes the suit, the amount of recovery, and states a new and different cause of action."
In Basham v. Chicago G.W.R. Co., (1916)
"We are of the opinion that the statute of limitations affords no defense in this case. The *41 suit was originally brought, and has ever since been maintained, by the administrator, who is the proper person to prosecute it, whether it be maintainable under the law of the state or under the Federal Employers' Liability Act. The cause of action in either case is the death of Spellman, occasioned by the alleged negligence of the defendant. In other words, whether the action be brought in one form or the other, it is by the same party, against the same party, in the same court, for damages for the same alleged wrong, the sole distinction being in the measure of damages to be recovered, and the person or beneficiary to whom the plaintiff must account for the damages, if any, which he collects. Now, assuming that plaintiff seeks to recover under the statute of the state and alleges a good cause of action, but, before the case is brought to trial, or even pending the trial, it develops that the deceased was injured while engaged in interstate commerce, and that, to sustain a verdict in favor of the administrator, the petition should allege that he was survived by a dependent wife or family, an amendment to the petition adding such necessary averment does not, in the judgment of the court, state a new cause of action permitting the defendant to successfully interpose a plea of the statute of limitations. Such is the logical and necessary effect of our own holdings." (Italics supplied.)
In Motsenbocker v. Shawnee Gas Electric Co., (1915)
Referring to Neubeck v. Lynch, supra, counsel for defendant say in their brief that this case "indicates how dangerous it is to rely, to any great extent, for guidance, in our question, upon the decisions from other States" and that "the Federal rules of procedure as to amendment of pleadings * * * are, as shown by the quotations in the Neubeck case, very different from the Oregon Statute concerning amendments." It is further sought to distinguish that case on the ground that the amendment was made before trial, while here, it is argued, the amendment did not come until after trial. But that is a mistaken assumption, for it is settled in this state that, after a reversal on appeal, whenever this court does not make a final disposition of the case but remands it for further proceedings, the trial court has the same power and authority to allow a pleading to be amended as it would have had if there had been no previous trial. Lieuallen v. Mosgrove,
"A plaintiff cannot, of course, abandon his original cause of action or suit, and substitute an entirely new and different one, because in such case the new pleading would not be an amendment, but a substitution for the original. But so long as the amendment is germane to the subject matter of the controversy, we can see no objection to the court, in the exercise of a sound discretion, allowing the pleadings to be amended in furtherance of justice by inserting new and additional allegations material to such controversy, although they may, in effect, constitute a new cause of action or defense."
See, also, Nelson v. Smith,
While the statute of limitations was not involved in Talbot v.Garretson, yet the following passage from the opinion in that case, which was quoted in Kroschel v. Martineau Hotels, Inc., supra (
"As illustrating the power of the court, under a statute similar to ours, to allow the pleadings to *44 be amended, the case of Hatch v. Central Bank,78 N.Y. 487 , is instructive. In that case the original complaint alleged, in substance, that plaintiff purchased of defendant what purported to be four United States treasury notes for $1,000, which were counterfeited. Upon issue joined the plaintiff had judgment for the amount paid for the counterfeit notes, with interest; but, after this judgment had been paid and satisfied, the court granted a motion that it be opened, and the satisfaction thereof cancelled, and that plaintiff be allowed to serve an amended complaint, adding a count setting forth the purchase of four other similar counterfeited notes, which it was claimed was omitted from the original complaint by mistake, on condition that the plaintiff refund and repay the amount of the judgment which had been paid, and upon compliance with certain other terms and conditions, although the effect of such amendment was to avoid the statute of limitations. The order allowing this amendment was affirmed on appeal, the court, through Mr. Justice Danforth, saying that `it was going a great way to grant the relief sought, but the application was not without merit, and was one which, under a long series of authorities, the court had power to grant'." (Italics supplied).
The conclusion which we have reached follows as a logical consequence from our adoption of the view put forth in Clark on Code Pleading, p. 503, and approved by the Supreme Court of the United States in the opinion of Mr. Justice Cardozo in UnitedStates v. Memphis Cotton Oil Co., supra, that the term, "cause of action", does not always and in all circumstances have the same meaning, and that in the context of a case like this it is to be taken "as a group of operative facts giving rise to one or more rights of action": Elliott v. Musgrove,
The contention that the original complaint was a nullity and, therefore, that there was nothing to amend is, in our opinion, not sound. That pleading showed that a wrong had been committed by the defendant for which the plaintiff was entitled to recover on behalf of one of the beneficiaries named in the statute. The answer alleged, and the reply admitted, that Frank P. Ross was the surviving husband of the deceased, and, if the doctrine of aider by a plea be applicable, it then appeared that it was the husband and not the estate, on behalf of which the action was brought, to whom the damages would inure. In either case it was a defective statement of a good cause of action:Neubeck v. Lynch, supra; Motsenbocker v. Shawnee Gas Electric Co., supra. Our decision that the complaint, having been demurred to, was not sufficient to support the judgment, does not mean that it was a nullity. By remanding the case for further proceedings we indicated our opinion that the complaint had substance; otherwise we would have directed that judgment be *46 entered for the defendant. The purpose of statutes authorizing amendments is to enable litigants to cure defective pleadings. The very section of Corpus Juris, 17 C.J., Death 1298, § 157, which counsel cite for the rule that where the original pleading states no cause of action it cannot be amended also says:
"Failure to allege the existence of beneficiaries, for whose benefit the action is brought, may be cured by amendment, unless there is no evidence to support the proposed amendment; and it has been held that such an amendment may be made after the expiration of the statute of limitations, but there is authority to the contrary." (17 C.J. 1299)Holton v. Holton,
The defendant calls our attention to the fact that the limitation prescribed in § 8-903, O.C.L.A., is a condition of the right to bring the action, citing Laidlaw v. Oregon Ry. Nav.Co., (1897) 81 F. 876 (9th Cir.), and other cases. We are unable to see that this is a relevant consideration. In some circumstances, as indicated in the text in 25 C.J.S., Death, 1158, § 53, 1192, § 73, to which we are referred, it may make a great deal of difference whether the case is governed *47 by the ordinary statute of limitations or by a limitation which goes to the existence of the right itself, but the question whether an amendment states a new cause of action is not, we think, affected by the nature of the particular limitation. The Federal Employers' Liability Act has a similar provision, but that has not apparently, been thought to enter into decisions of like questions arising under that act.
Nor do we perceive the application to this case of the doctrine of Thompson v. Union Fishermen's Co-op. Packing Co.,
Numerous authorities are cited in the briefs of counsel for the defendant, which we have examined but have thought it unnecessary to refer to specifically, because our chief concern has been with the principles affecting the administration of justice which underlie the conflicting judicial views upon this subject. Our opinion in Fox v. Ungar, supra, written by Mr. Justice RAND and concurred in by three other members of the court, including the writer of this opinion, clearly and forcefully states the argument for the restrictive doctrine there announced. The present case was heard by the full court, with the exception of Mr. Justice BELT, and, after a careful re-examination of the question, we are all of the opinion that, for the reasons herein given, Fox v. Ungar, in so far as it is inconsistent with this decision, should be deemed overruled.
The judgment is reversed and the cause remanded to the Circuit Court with directions to overrule the demurrer to the amended complaint, and for further proceedings in conformity to this opinion. *49