Gordon Burns, as administrator of the Estate of Wilma Fuglemsmo, brought suit against the Anchorage Funeral Chapel in the superior court. In Count I of his complaint Burns stated a claim for relief for wrongful death asserting that Anchorage Funeral had prematurely embalmed Wilma Fuglemsmo. This claim was tried to a jury which returned a verdict in favor of Anchorage Funeral. In Count II the administrator alleged a claim for wrongful interference with the right of the next of kin to preserve the body of the deceased. This count stated that Anchorage Funeral had embalmed the body of Wilma Fuglemsmo without the consent of her next of kin, and that this unauthorized act caused the next of kin emotional distress. Subsequent to the filing of this count, the trial court issued a pre-trial order in which the administrator was required "either to file an amended complaint [adding the next of kin as plaintiffs] or to defend a challenge against the second claim of want of capacity in the administrator." The administrator decided to defend the position that he had previously adopted, namely that he was the real party in interest, whereupon Anchorage Funeral moved for judgment on the pleadings. At this point the administrator moved to add the next of kin of Wilma Fuglemsmo as parties plaintiff. The superior court granted Anchorage Funeral's motion for judgment on the pleadings and denied the administrator's motion to add parties plaintiff on the ground that any claim the next of kin might have possessed arising from the unauthorized embalming was barred by the controlling two year statute of limitations.
The issues, as framed by the parties to this appeal, involve substantive and procedural facets of the subject of real parties in interest; the propriety, within the context of this case, of amendment of the pleadings in order to add additional parties plaintiff; the impact of such an amendment upon the bar arising from the applicable two year statute of limitations; and whether the second count of the complaint stated a claim for relief. We first turn to the real party in interest issues.
Civil Rule 17(a) provides in part:
The first clause of Civil Rule 17(a) requires that every action be prosecuted in the name of the real party in interest. Rule 17(a), Federal Rules of Civil Procedure, which parallels Alaska's Civil Rule 17, has been consistently interpreted to mean that an action or claim for relief shall be prosecuted in the name of the party who, by the substantive law, possesses the right sought to be enforced.
In Edwards v. Franke, 364 P.2d 60, 63 (Alaska 1961), we said that
It follows that a claim for relief for wrongful interference with the right to preserve a dead body belongs exclusively to the surviving spouse or to the next of kin of the decedent. This substantive right is in the surviving spouse or next of kin, whether the claim is analyzed as a tortious invasion of a property right or infliction of emotional harm.
In his appeal Burns argues that he properly instituted the suit as administrator because of a specific exception to the real party in interest rule. In support of this contention, Burns points to the language of the second clause of Civil Rule 17(a) which provides in part that "... but an ... administrator ... may sue in his own name without joining with him the party for whose benefit the action is brought." Burns' position that this language embodies an exception to the main rule is not borne out by the federal experience under the similar Rule 17(a), Federal Rules of Civil Procedure. In 1966 the "but" of the enumerative second clause was deleted from the federal Rule 17(a) "to make it clear that the specific instances enumerated are not exceptions to, but illustrations of, the rule."
Burns further contends that Anchorage Funeral waived any objection to Count II of the complaint because the real party in interest issue was attempted to be raised in a procedurally impermissible and untimely manner. Specifically, Burns says that Civil Rule 9(a), which requires that the capacity of a party to sue be raised by specific negative averment, controls the manner by which the real party in interest objection should have been raised.
In previous decisions this court has held that the specific negative averment requirements of Civil Rule 9(a) are an appropriate vehicle by which a real part in interest question may be raised. Weaver v. O'Meara Motor Co., 452 P.2d 87, 90 (Alaska 1969); Wilson v. Interior Airways, Inc., 384 P.2d 956, 957 (Alaska 1963); Smith v. Sellar, 371 P.2d 809, 810 (Alaska 1962).
In light of the uncertainty created by the lack of specific direction in our rules of civil procedure as to when, and the manner in which a real party in interest objection based on Civil Rule 17(a) should be raised, we hold that our courts have discretion to determine whether in the particular factual context of the litigation a waiver of the objection has occurred. Study of the record in the case at bar has convinced us that the trial court's implied holding that no waiver of the real party in interest objection had taken place was correct. We further hold that the trial court did not abuse its discretion in allowing the defense to be raised in the motion for judgment on the pleadings.
This brings us to the question of whether the trial court correctly denied Burns' motion to amend his complaint to add the deceased's next of kin as parties plaintiff. Earlier we mentioned that the trial court denied the motion on the ground that since Burns was not the real party in interest a new claim for relief would be introduced by an amendment adding parties plaintiff, and that therefore the amendment could not relate back to the date the administrator instituted the lawsuit. We hold that the requested amendment should have been allowed. Regarding the relation back of amendments, Civil Rule 15(c) provides:
This rule of civil procedure and the policy it reflects is of controlling significance in the decision of this amendment issue. Count II of the complaint sufficiently identified the specific facts upon which the claim for relief was based, the persons injured, and further specified that recovery was sought for their benefit. Thus in the context of the pleadings in this case, Anchorage Funeral was sufficiently informed of the nature of the asserted claim for relief so that no new claim for relief would have been injected by virtue of an amendment which added or substituted the next of kin as parties plaintiff. Our analysis is in accord with the basic rule applied by federal courts in determining whether an amendment introduces a new claim for relief. The federal authorities hold that if the amendment is based on the same specific conduct of the defendant upon which the original claim for relief was founded, no new claim for relief is stated by the amendment.
One point remains for disposition. Anchorage Funeral urges that any error on the trial court's part in refusing to grant the motion to amend was harmless error on the theory that Count II of the complaint does not state a claim for relief. Scholars in the field of torts hold the view that there is a claim for relief for wrongful interference with the right to preserve a dead body. 1 F. Harper & F. James, The Law of Torts § 9.4, at 674 n. 3 (1956); W. Prosser, Law of Torts § 54, at 329 n. 51 (4th ed. 1971); and P. Jackson, The Law of Cadavers 142-43 (1950). There is judicial precedent supporting this view. See Sworski v. Simmons, 208 Minn. 201, 293 N.W. 309 (1940); Edwards v. Franke, 364 P.2d 60, 63 (Alaska 1961.)
Reversed and remanded with directions to proceed in accordance with this opinion.
ERWIN, J., not participating.
Burns further argues that under Alaska's survivorship statute, AS 13.20.330, he qualifies as a real party in interest. This statute, however, provides for the survivorship of those claims which the decedent held before death. Since the decedent, under the common law and decisional law of Alaska, did not have a claim for relief arising from the acts alleged under Count II of the complaint, Burns as administrator cannot avail himself of AS 13.20.330 in his attempt to qualify as a real party in interest in the case at bar.
AS 13.20.340, Alaska's Wrongful Death Act, was the basis of the claim for relief stated in Count I of the complaint in this case, but has no applicability to the resolution of the real party in interest issues under Count II of the complaint.
It has been said that the purpose of the rule is to determine whether the defendant has been put on notice with regard to the claim against him raised by the amended pleading. 1A W. Barron & A. Holtzoff, Federal Practice and Procedure § 448, at 766-67 (Wright ed. 1961). See also discussion on relation back of amendments adding parties plaintiff or defendant in 3 J. Moore, Federal Practice ¶ 15.15 [4.-1], at 1043-48 (2d ed. 1968).
In 1966, Fed.Rules Civ.Proc. 17(a) was amended to add an additional sentence which provides that a claim shall not be dismissed on the ground "that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ... joinder or substitution of, the real party in interest... ." The Advisory Committee on Rules commented that
As to the relation back of amendments adding the real party in interest, the committee notes that the amendment is intended to keep pace with the more recent decisions which