Pugmire v. Diamond Coal & Coke Co.

. McCARTY, J., after making the foregoing statement of the case, delivered the opinion of the court. There are two questions raised by this appeal: First, did the court err in denying plaintiffs’ motion to amend their complaint by substituting the personal representative of the deceased as party plaintiff, in lieu of the beneficiaries, present plaintiffs? and, second, can the plaintiffs, who were not proper party plaintiffs in tbe court below, be heard in this court on appeal? The general rule respecting the first proposition is 1 that amendments will not be permitted which would result in a complete change and substitution of either party, plaintiff or defndant. It is claimed, 'however, there are exceptions to this rule, and that in actions relating to estates of decedents the personal representative may be substituted for the heirs, and vice versa. Upon this point there is an irreconcilable conflict in the authorities, both State and Federal. While the question is not entirely free from doubt, we think the better and more equitable rule to be that, in this class of cases, where the beneficiaries are in fact the only real parties in interest, great liberality ought to [118] be allowed and that a party ought not to be driven-out of court because, through some oversight or' mistake on his part, he has brought his action in a wrong capacity. In the case under consideration the change would be a formal one only, as Mary Pugmire and her minor children are the only parties who are or-ean. be pecuniarily interested in the successful prosecution of the case. In volume 20, Ency. PL and Pr. 1027,1028, the rule is stated as follows: ‘ ‘ Subject to the general rule above stated, that a substitution of parties which operates to change the original cause of action cannot be allowed, the personal representative of a decedent may be substituted in place of the heirs or distributees or widow, in actions relating to the estate, or, vice versa, the hears or widow may be substituted in the place of the personal representative. ’ ’ The doctrine is supported by the following cases: 20 Ency. Pl. and Pr., 1027, 1028; Bender v. Luckenbach, 162 Pa. 18, 29 Atl. 295, 296; Merrill v. Woodbury, 61 N. H. 504; Teutonia Life Ins. Co. v. Mueller et al., 77 Ill. 22; Wood v. Circuit Judge, 84 Mich. 521, 47 N. W. 1103; Van Doren v. Penn. R. Co., 35 C. C. A. 282, 93 Fed. 260; Person v. Fidelity & Casualty Co., 35 C. C. A. 117, 92 Fed. 965; U. S. Ins. Co. v. Ludwig, 108 Ill. 514. Section 3005, Revised Statutes 1898, in part provides that the court may, in the furtherance of justice, allow a party to amend any pleading or proceeding by adding or striking out the name of any party. By giving the provisions of this section of the statute the liberal construction contemplated by section 2489, Id.,, which provides that the provisions of the statutes and all proceedings under them shall be liberally construed, with a view to- effect their object and to promote justice, we think the amendment could and ought to have been allowed, and that it was error to reject it. In the case of Skews v. Dunn, 3 Utah 186, 2 Pac. 64, cited by counsel for respondent, William Skews, plaintiff, commenced an action in his own name on two119 promissory notes, and, after the case had been tried in a justice of the peace court and appealed to the district court, Skews moved that his wife he substituted in his place as party plaintiff, and filed an affidavit alleging that she was at the time of the commencement of the action the owner of the notes, and really the party beneficially interested in the action. The trial court sustained the motion, and permitted the substitution to be made. It will be observed that, after the action had been tried and an appeal taken to the district court, it was discovered that the plaintiff was not the real party in interest, and -another person, who was an entire stranger to the action, was substituted as party plaintiff in place of Skews, who commenced the suit, and this court held that the trial court erred in permitting the amendment, and reversed the case. The reason assigned for the reversal is that, under the statutes as they existed at that time, a husband was not a competent witness for or against his wife, nor a wife a competent witness for or against her husband, and that, by reason of the substitution of the wife in the place of the husband, she was permitted to testify as a witness in the case. The court say: “The only reason apparent from the record for desiring the substitution was that Sarah Skews [wife] might be available on the trial of the case.” It will be seen that the principles involved in that case are not at all similar to those now under consideration, and the majority of the cases cited by counsel for respondent are cases in which parties who were in fact strangers to the suits at the time they were commenced were asked to be substituted in place of the parties who commenced the actions, and did not come within the exception to the general rule above stated. As the 2 appellants were entitled to the amendment asked for, and it having been denied them, it necessarily follows that they are entitled to be heard on appeal. There are a number of other questions discussed [120] at considerable length by counsel in tbeir briefs, but we deem it unnecessary to consider them. Tbe case is reversed, with directions to tbe trial court to reinstate tbe case and allow plaintiffs to amend. Costs of tbis appeal to be taxed against respondent. BASKIN, C. J., and BARTCH, J., concur.