VAN OOSTERHOUT, Circuit Judge.
The issue presented by this timely appeal, taken by Ruth Crowder, mother
The pertinent facts are not in dispute. Walton W. Crowder, a resident of Arkansas and father of the minor children, was fatally injured in a motor vehicle collision on July 27, 1965. He died the same day as a result of such injuries. The accident occurred in Missouri, less than one mile from the Arkansas border.
Defendant is a Tennessee corporation engaged in interstate transportation of freight in Missouri, Arkansas and other states, and has a branch office in Arkansas.
A complaint, with jurisdiction based upon diversity of citizenship, seeking damages for the wrongful death of Mr. Crowder, was filed in the United States District Court for the Western District of Arkansas on July 12, 1966, naming Ruth Crowder, administratrix of the estate of the decedent, as plaintiff. Such complaint sought damages for the death of Mr. Crowder and asserted his death was proximately caused by the negligence of defendant's driver. The complaint asserted that the decedent was survived by his wife and two minor sons, hereinabove named. Damages sought were as follows:
1. $100,000 for Walter Paul Crowder, minor son.
2. $150,000 for David Douglas Crowder, minor son.
3. $150,000 for Ruth Crowder as surviving widow.
4. $1500 for administratrix for funeral expenses.
Items 3 and 4, supra, were dropped by the amended complaint and upon this appeal we are concerned only with claims 1 and 2 of the minor sons.
Defendant, by answer filed August 1, 1966, denied liability and asserted that the Missouri wrongful death statute controlled and that the action was not commenced within the time required by such statute, and that hence plaintiff was entitled to no relief. A motion to dismiss was filed December 9, 1966, and raised the issue that plaintiff failed to state a claim upon which relief can be granted and asserted substantially the same defense stated in the answer. Before such motion was ruled upon, the administratrix sought, and by order of court dated December 22, 1966, was granted thirty days "within which time counsel may serve and file an amendment to the complaint in this cause on behalf of the heirs at law of Walton W. Crowder, deceased." Amended complaint was filed on January 21, 1967, which substitutes Ruth Crowder as mother and next friend of the two named minor children as plaintiff, and reasserting the material allegations of the complaint and the wrongful death claim of the two minors, and praying for judgment for $25,000, the limit of recovery under the Missouri statute.
On February 1, 1967, defendant filed a motion to dismiss the amended complaint, urging, "Under the applicable Missouri wrongful death statutes, the cause of action asserted by the plaintiff in the Amended Complaint is barred by the statute of limitations which is a part of the statute creating the right of action; the Amended Complaint fails to state a claim upon which relief can be granted."
The court on February 12, 1967, sustained the motion to dismiss and entered final order dismissing both the original complaint and the amended complaint. The court's memorandum opinion discussing in depth the facts and applicable law is reported at 264 F.Supp. 137.
In its opinion, the court recognized the well-established law that
Glick v. Ballentine Produce, Inc., 8 Cir., 343 F.2d 839, like our present case involves an action brought in Arkansas for a wrongful death based upon injuries inflicted in Missouri. We there held, as the trial court held here, that under Arkansas law the law of Missouri, the place of the injury, is applied in wrongful death actions commenced in Arkansas. We also set out and discuss the Arkansas and Missouri wrongful death statutes. We summarize the applicable Missouri law as follows:
In view of our agreement with the trial court that Missouri law applies, we see no need to summarize the Arkansas law. However, it is appropriate to state that the original complaint conforms to Arkansas law which places the cause of action in the administrator.
We are satisfied that the trial court reached a permissible conclusion upon the basis of Arkansas and Missouri law set forth in its opinion when it held that the substantive Missouri law controls this wrongful death action and that an action must be commenced in the manner set forth in the Missouri statute and within the time therein prescribed.
It is firmly established that the original complaint was filed more than six months after the decedent's death and within twelve months of such event and hence, that the action was filed within the time fixed by Missouri law for the commencement of wrongful death actions by children of the party wrongfully killed.
We now reach the crucial issue in this case, which is whether the amended complaint relates back to the time of the filing of the original complaint. If relation back exists, it is clear that the action was commenced within the time prescribed by the Missouri statute and by a party authorized to sue by such statute.
Since it is clear under the Federal Rules of Civil Procedure, as hereinafter explained, that the amended complaint filed relates back and grave doubt exists
The trial court did not directly decide the issue of whether state or federal law applies. It did reject plaintiffs' claim that Rule 15, Fed.R.Civ.P., calls for relation back in the present situation and it asserted the 1966 amendments to Rule 15 have no application. It then proceeds to determine that no relation back is permissible on the basis of the Missouri cases which it cites.
We are of the view that the issue of relation back is one of procedure and is controlled by the Federal Rules of Civil Procedure. In Russell v. New Amsterdam Cas. Co., 8 Cir., 303 F.2d 674, a case arising under the Nebraska wrongful death statute, we determine that the widow, who had timely instituted the action in her individual capacity as sole heir, could amend her complaint after the expiration of the limitation period to substitute herself as plaintiff in the capacity of administratrix and that such amendment related back to the time of the filing of the original complaint. After citing and discussing numerous pertinent cases, we hold:
We adhere to the view there stated. See also Bochantin v. Inland Waterways Corp., 9 F.R.D. 592, 596.
While we reached a different result in Glick, supra, such result in no way impairs the validity of our views stated in Russell quoted above. The opinions in both Glick and Russell were written by Judge Matthes. The distinguishing feature in Glick is that no attempt was made to amend. As stated by our opinion in that case:
Additional support for our view expressed in Russell is found in Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8. In that case, the issue was whether in a diversity action the state rules for service of process took precedence over the service authorized by Rule 4(d) (1). The Court held the problem was one of procedure controlled by federal rules despite the fact that the application of the state rule would have brought about a different result. The Court in the course of its opinion, among other things, holds:
The relation back situation here confronting us appears to be fully and fairly covered by the Federal Rules of Civil Procedure as amended in 1966. The 1966 amended rules became effective on July 1, 1966, and apply to all actions commenced thereafter. See Amendments to Federal Rules of Civil Procedure, 383 U.S. 1029, 1031. This action was commenced on July 12, 1966. Accordingly the amended rules apply.
The trial court, as it was authorized to do by Rule 15(a), authorized the filing of the amended complaint and such authorization is not here attacked.
Rule 15(c) as it existed prior to the 1966 amendment read:
Such rule has been retained. The 1966 amendment inter alia adds:
The addition to Rule 17(a) by the 1966 amendment referred to in the comment to Rule 15, supra, provides:
The Advisory Committee comment on the amendment includes:
We also note that Rule 17(c) provides in part: "The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person."
It appears to us that Rules 15(c) and 17(a) as amended clearly are designed to and in fact do cover the relation back situation here presented.
We believe that the plain language of such rules compels the result we reach but if any interpretation problem should exist, we observe that the Supreme Court in Surowitz v. Hilton Hotels Corp., 383 U.S. 363, 373, 86 S.Ct. 845, 851, 15 L. Ed.2d 807, states:
No attack is made nor is any reason apparent why such rules are not within the constitutional and statutory powers given to the Supreme Court to adopt rules of procedure. No fraud, forumshopping or improper conduct on the part of the minors with respect to instituting this action is shown. Since the administratrix
Defendant was given proper notice of the filing of the original complaint. While such complaint names the mother in her capacity as administratrix as plaintiff, the complaint clearly sets out that the decedent left surviving him the two minor children here involved and that the relief is being sought on behalf of such minors. Paragraph VIII of the original complaint reads:
Paragraph IX contains substantially the same allegations with respect to David Douglas Crowder and asserts $150,000 in damages were suffered by him. Thus, defendant was clearly advised by the original complaint that each of the minors was seeking damages against it for wrongful death of their father, and defendant was in no way prejudiced by the failure to name the mother as next friend rather than as administratrix in such original complaint.
It is quite true that the original complaint improperly included a claim for the widow individually and as administratrix. All claims except those of the minors have been eliminated by the amended complaint. The fact that more damages were claimed in the original complaint than were permitted by the Missouri statute is not a fatal defect. The statutory limitations of course apply to all wrongful death actions.
Upon the record in this case, we hold that the Federal Rules of Civil Procedure control on the relation back issue and that under such rules, the amended complaint relates back to the filing of the original complaint. The original complaint was filed within the time prescribed by the applicable Missouri statute. The court erred in dismissing the amended complaint. We express no view on the merits of the action.
Reversed and remanded to the trial court for further proceedings consistent with the views herein expressed.