
    Archdeacon, Administrator, v. The Cincinnati Gas & Electric Company et al.
    
      Amendments to pleadings — May be allowed, though out of rule when — Action for zvrongftil death — Amended answer admits, huhat — Qualification of administrator — Relates back to time of appointment — Validates commencement of action by administrator.
    
    1. Amendments to pleadings sought to be made out of rule should be allowed only in furtherance of justice.
    2. Where, in a suit by an administrator to recover for wrongful death, the answer in terms admits that the plaintiff is the duly appointed and qualified administrator of the deceased, and the case being reached for trial more than two years after the death, the defendant asks leave to amend the answer by a denial of the due appointment and qualification of the plaintiff as administrator, for the' purpose only of interposing the two years bar of the statute, such leave, not being in furtherance of justice, should be refused.
    3. Where, in such case, the amended answer in terms reaffirms all the allegations of the original answer except that plaintiff was duly qualified as administrator, and then avers only that he was at a subsequent date (more than two years after the death) duly appointed and qualified, the legal effect is to leave in force the admission in the original answer of due appointment at the commencement of the suit.
    4. The general rule that the due qualification of an administrator relates back to the time of his appointment as regards acts done by him in the interim which are for the benefit of the estate, applies to a case of this character. The commencement of the suit by the administrator, therefore, being for the benefit of the estate, was the valid commencement of an action.
    (No. 10020
    Decided March 19, 1907.)
    Error to the Superior Court of Cincinnati.
    On March 28, 1903, the plaintiff, Cornelius Archdeacon, filed his petition in the superior court of Cincinnati against The Cincinnati Gas & Electric Company and The City & Suburban Telegraph Association, averring, among other things, that his intestate, John Archdeacon, met his death January 26, 1903, through the negligence of defendants, and that'he (the plaintiff) was the duly appointed and qualified administrator of said John Archdeacon, deceased. The names of the next of kin were stated. Further pertinent allegations followed and then a prayer for recovery of damages.
    On April .7, 1903, the defendants filed their separate answers, in each of which it is admitted “that plaintiff is the duly appointed and qualified administrator of the estate of John Archdeacon, deceased.” Other material allegations of the petition are denied.
    On March 3, 1905, the cause coming on for trial, the defendants, having obtained leave of ■ court therefor, filed a joint amended answer, in which answer it is averred that “the defendants reaffirm all the defenses and allegations set forth in the separate answers heretofore filed except that plaintiff was duly qualified as administrator of the said John Archdeacon, deceased.” Then follows an allegation “that on the 10th day of March, A. D. 1905, the said Cornelius Archdeacon was duty appointed and qualified by the probate court of Hamilton county, Ohio, as administrator of the estate of John Archdeacon, deceased,” and then an averment “that plaintiff is without legal capacity to maintain this action.”
    Thereupon defendants moved to dismiss the cause, the claim as to the facts being that, although due application by one entitled to administration had been made to the probate court February 5, 1903, for such appointment, and the plaintiff had then signed the bond ordered, yet the sureties not having signed and letters not in fact issued until March io, 1905, defendants were entitled to a dismissal. The motion was for judgment on the pleadings, and the court finding that defendants were entitled to judgment on the statements in the pleadings, sustained the motion, dismissed the cause, and rendered judgment for the defendants that they go hence without day and recover from the plaintiff their costs. This judgment was affirmed by the court in general term and the plaintiff brings error.
    
      Mr. Edward Colston; Mr. Charles M. Cist; Mr. W. A. Rinckhoff and Mr. D. T. Hackett, for plaintiff in error.
    1. The defendants are estopped to deny the capacity of the plaintiff to maintain the action.
    2. The suit brought by the plaintiff, as administrator, was not a nullity by reason of the defect in title, but was the valid beginning of an action.
    3. The subsequent qualification of the administrator related back so as to cure any- defects and validate the suit previously brought. 11 Am. & Eng. Ency Law, 447; Walker v. Wooster’s Admr., 61 Vt., 403; Davis v. Wakelee, 156 U. S., 680.; Railway Co. v. Bemis, 64 Ohio St., 26; Doolittle v. Lewis, 7 John. Ch., 51; 7 Am. & Eng. Ency. Law, 1st Ed., 193; Railway Co. v. Elyria, 69 Ohio St., 414; Wolf, Admr., v. Railway Co., 55 Ohio St., 517; Stewart v. Railway Co., 168 U. S., 445; Wells v. Stomback, 59 Ia., 377; Buel et al. v. Transfer Co., 45 Mo., 563; Lilly et al. v. Tobbein et al., 103 Mo., 477; Hines v. Rutherford, Exr., 67 Ga., 606; Henry, Admr., v. Roe et al., 
      
      Exrs., 83 Tex., 446; Smith et al., Exrs., v. Peckham, Exr., 39 Wis., 414; Insurance Co. v. Ludwig, 108 Ill., 514; McDonald v. Nebraska, 101 Fed. Rep., 171; Insurance Co. v. Mueller, 77 Ill., 22; Railroad Co. v. Town of Boswell, 137 Ind., 336; Wood, Admr., v. Circuit Judge, 84 Mich., 521; McLewis v. Fergerson, 59 Ga., 644; Wilson v. Presbyterian Church, 56 Ga., 554; Childers v. Adams, 42 Ga., 352; Miller v. Pollock, 99 Pa. St., 202; Whitaker v. Pope, 2 Woods, 463; Buckland, Admx., v. Green, 133 Mass., 421; McCall et al. v. Lee, 120 Ill., 261; Morford v. Dieffenbacker, 54 Mich., 593; Lottman v. Barnett, 62 Mo., 159; George et al. v. Reed et al., 101 Mass., 3781 Hodges v. Kimball et al., 91 Fed. Rep., 845, Van Doren v. Railroad Co., 93 Fed. Rep., 260; Helman, Admr., v. Railway Co., 58 Ohio St., 400; Mitchell v. Albright, Admx., 20 W. L. B., 101; Slagle v. Entrekin, 44 Ohio St., 637.
    
      Messrs. Outcalt & Foraker and Mr. Smith Hickenlooper, for defendants in error.
    1. There was at no time, nor could there now arise, a cause of action against defendants. The death statute creates a new cause of action in derogation of the common law, and must be strictly construed. Sections 6134, 6134a and 6135, Revised Statutes; Helman, Admr., v. Railway Co., 58 Ohio St., 400; Malott v. Shimer, 6 Am. Neg. Rep., 263; Brown v. Railway Co., 102 Wis., 140; Blake v. Railway Co., 83 E. C. L., 140; Railroad Co. v. Chambers, 73 Ohio St., 26; Railroad Co. v. Fox, Admr., 64 Ohio St., 133; 6 Thomp. on Negligence, Section 6986; Burns, Admr., v. Railway Co., 113 Ind., 171; Hamilton, Admr., v. Jones, Admx., 125 Ind., 176; City of Detroit v. Putnam, 45.Mich., 263; Railway Co. v. Keeley’s Admr., 23 Ind., 133; City of Detroit v. Chaffee, 70 Mich., 80; Stewart, Admr., v. Railway Co., 103 Ind., 44; Kramer v. Market St. Ry. Co., 25 Cal., 435; Nash v. Tousley, 28 Minn., 5; City of Eureka v. Merrifield, 53 Kan., 797.; Jackson v. Railway Co., 87 Mo., 422; Railroad Co. v. Sturgis, 44 Mich, 538; Woodward, Admr., v. Railway Co., 23 Wis., 400; Barker v. Railway Co., 91 Mo., 94; Eustace v. Jaim’s Admr., 38 Cal., 3; Daly v. Stoddard, Trustee, et al., 66 Ga., 145; Railroad Co. v. Johnson, 7.7 Miss., 727; Isaac et al. v. Railway Co., 12 Daly, 310; City of Lexington v. Lewis’s Admx., 10 Bush., 677; Holston v. Coal & Iron Co., 95 Tenn., 523; Whaley v. Catlett, 103 Tenn., 352; Railroad Co. v. Yocum, 34 Ark., 493; Railway Co. v. Hine, Admx., 25 Ohio St., 634; Steel, Admr., v. Kurts et al., 28 Ohio St., 195-
    2. The performance of all conditions is a condition precedent to the creation of the right, the remedy being exclusive. Kahn, Jr., v. Walton et al., 46 Ohio St., 212; Barker v. Railroad Co., 91 Mo., 86; “The Harrisburg,” 119 U. S., 199; Major v. Railway Co., 88 N. W. Rep., 817; Thorpe et al. v. Coal Co., 68 Pac. Rep., 145; Taylor, Admx., v. Iron & Coal Co., 94 North Car. 525; Hanna, Admr., v. Railway Co., 32 Ind., 113; Rugland, Admr., v. Anderson et al., 30 Minn., 386; Lyon’s Admr. v. Railroad Co., 7 Ohio St., 337; Books v. Borough of Danville, 95 Pa. St., 166; Usher v. Railroad Co., 126 Pa. St., 206; Oates v. Railroad Co., 104 Mo., 514; Railroad Co. v. Jones, 34 So. Rep., 246; Hyde v. 
      Railway Co., 61 Ia., 441; Killian v. Railway Co., 38 S. E. Rep., 873; Stewart v. Railroad Co., 83 Ala., 493; Weidner et al. v. Rankin et al., 26 Ohio St., 522.
    3. Action must be brought by personal representative within two years, arid where no one is authorized to enforce right there is no cause of action. Lyon’s Admr. v. Railroad Co., 7 Ohio St., 339; Railroad Co. v. Chambers, 73 Ohio St., 21; Ryall v. Kennedy, 40 N. Y. Supp., 347; City of Chicago v. Major, Admr., 18 Ill., 349; Sherman v. Stage Co., 24 Ia., 553; Ex parte Collins, 49 Ala., 69; Fruitt, Admr., v. Anderson, 12 Ill. App., 421; Stratton v. Railway Co., 74 Me., 422; Railway Co. v. Railroad Co., 38 Pa. St., 361; Maia’s Admr. v. Hospital, 97 Va., 307; Patterson, Exrx., v. Patterson, 59 N. Y., 574; Parker v. Enslow, 102 Ill., 272; Angell on Lim., Chap. 7; Douglass v. Forrest, 4 Bing., 686.
    4. Can be no suit until the appointment of an administrator, and if suit by other than statutory plaintiff there is no cause of action to amend. George, Admr., v. Railway Co., 51 Wis., 603; Fitzhenry v. Traction Co., 63 N. J. L., 142; Railroad Co. v. Lacey, 49 Ga., 106; Lower, Admx., v. Segal, 60 N. J. L., 99; Holley v. Young, 68 Me., 216; 1 Greenleaf on Evidence, Section 206; Smith v. Fowler, 12 Lea, 163; Hamilton v. Zimmerman, 5 Sneed, 39; Seay v. Ferguson, Exr., 1 Tenn. Ch., 287; Perry v. Manufacturing Co., 40 Conn., 313; Mock v. Walker, 42 Ala., 668.
    5. No sufficient exception. Allcorn v. Morgan, 77 Ind., 184; Baker v. State, ex rel., 90 Ga., 153; Iron Co. v. Street, 19 Ohio, 300; Railroad Co. v. Washburn, 22 Ohio St., 324; Tern
      
      pleton v. Kraner et al., 24 Ohio St., 554; Rubber Co. v. Wolf, 1 Handy, 236; Armstrong v. Clark, 17 Ohio, 495; McCarthy et al. v. Neu et al., 91 Ill., 127; Railway Co. v. Hin
    6. As to probate practice, see: Woerner on Administration, here arid there; Dutcher, Admr., v. Dutcher, 88 Hun, 221; Bellinger v. Ford, 21 Barb., 314; Executors v. Cameron, 16 Wend., 302; Philbrick v. Hasen, 3 N. H., 120; 8 Ency. Pl. & Pr., 654; In re Estate of Hamilton, 34 Cal., 464; In re estate of Pingree, 100 Cal., 78.
   Spear, J.

It must be apparent from the foregoing statement that the defense sought to be made by the amended answer, and the motion to dismiss, was based upon a mere technicality. The plaintiff having fully qualified as administrator before the case was reached for trial every right of the defendants upon the merits of the case was fully preserved, and in no possible aspect could the delay in perfecting the bond and receiving the letters of administration prejudice the defense of the defendants upon the real meritorious question involved in the controversy, which was, whether or not the defendants’ negligence was the cause of the death. The amended answer, by which it was attempted to interpose a denial of their former admission, could not be allowed to be filed as of right but only by leave of the court. The spirit, if not the very letter, of the code (section 5114, Revised Statutes) permits amendments, where it is necessary to appeal to the court, only in furtherance of justice. Manifestly, as the omission to fully qualify worked no prejudice to the rights of the defendants on the merits, the filing of the amended answer might properly have been refused, and with due respect to the learned judge who presided at the special term, we are of opinion that leave should have been refused, and that the granting of leave was not in the exercise of a proper discretion.

But the amended answer having been permitted to be .filed, is a part of the record, afid the question now is what judgment should have been rendered on the motion to dismiss. We are of opinion that it' ought to have been overruled. The defendants had stood for nearly two years on a distinct admission in their answer, duly sworn to, “that plaintiff is the duly appointed and qualified administrator of the estate of John Archdeacon, deceased,” and then when, because of the lapse of the two years limitation prescribed by the death statute, it was too late for plaintiff to begin a new action, they attempt to change front, and, although not asking to withdraw the original answer, but leaving that as a part of the record in the case, seek to defeat the plaintiff’s cause of action by an -attempted contradiction of their own.solemn admission. Had this denial of the plaintiff’s qualification been incorporated in the original answer it is • more than probable that attention would have been called to the condition of the proceeding in the probate court and the defective bond then cured. It would seem that, if there be any virtue in the spirit of the doctrine of estoppel, that which prevents one from denying a fact in consequence of .his own previous allegation of a contrary tenor, an allegation calculated to mislead his opponent, this is a proper situation to make application of it. The rule is well stated in 16 Cyc., 680: “If a person, by his conduct, induces another to believe in the existence of a particular state of facts and the other acts thereon to his prejudice, the former is estopped as against the latter, to deny that that state of facts does in truth exist.” The admission in the answer was an assurance to plaintiff that his right to maintain the action would not thereafter be disputed, on which he had a right to act.

But let us look at the legal effect of the attempted denial. Having sought to escape liability by what we have found to be a mere technicality the defendants ought not to be heard to complain if a strict rule is applied in giving construction to the allegations of their amended answer. With regard to the status of the plaintiff its averment is that “the defendants reaffirm all the defenses and allegations set forth in the separate answers heretofore filed, except that plaintiff was duly qualified as administrator of the estate of John Archdeacon, deceased,” thus leaving to stand, and in effect repeating, the admission that the plaintiff had been duly appointed as administrator, and averring only, as new matter, that he had not been duly qualified, meaning in law that the only change from the former answer was that there was some defect of some character or other in the qualification of the plaintiff, but none whatever in his due appointment. In some jurisdictions the practice in the'probate court is to make an order appointing an administrator, and follow that by an order that a bond be given, and this seems to be contemplated by the statute (section 6006), the language being: “Every administrator shall, before entering on the execution of his trust, give bond,” etc. The statement found later in the amended answer that the plaintiff was on March 10, 1905, duly appointed and qualified, is not so far antagonistic to the earlier paragraph as to destroy or abrogate it, while the statement with which the answer closes to the effect “that plaintiff is without legal capacity to maintain this action” is a mere legal conclusion, proper in a demurrer where the petition discloses the weakness, and not improper in an answer if accompanied with pertinent allegations of fact, but of no force in this amended answer except as a concession that, in the comprehension of the pleader, there was an action pending. It is to be borne in mind, also, that objections to the legal capacity of a plaintiff to sue must be distinctly pleaded (section 5063), or the same are waived. Hoop v. Plummer, 14 Ohio St., 448. A general denial is not sufficient. Surely in the face of an admission of due appointment, and upon these pleadings taken together, it is not reasonable to ask that a defendant have judgment because of a mere denial of the plaintiff’s qualification, in the light of the liberal provisions of our code which permit amendments, even after judgment, in furtherance of justice. This condition of the record should, in our opinion, have been held sufficient ground for the overruling of the motion to dismiss.

It being thus shown by the pleadings that plaintiff was duly appointed, what follows? We think it does not follow that the failure to fully qualify within the two years defeated the action. The qualification, when made, following a general rule that the appointment relates back, related back at least to the time of the filing of the petition, and that was not a void performance, being an act done during the interim which act was for the benefit of the estate. It could not be otherwise, for it was an attempt to enforce a claim which was the only-asset of the estate. This rule .is sustained by a large number of authorities, and seems to be quite generally recognized. It appears, also, to be just and equitable. We think it idle to urge that the rule can not apply in this case because the proceeds of any judgment obtained would go to next of kin only and not in the usual course of administration. There is no valid reason for sustaining the rule in one case and disregarding it in the other. There are. many authorities, also, to the effect that had the petition needed amendment to make it good, leave to amend, even after the two years, should have been given. The courts, in numberless cases, hold that amendments may be allowed, and even new parties made, in order to prevent a failure by the running of the limitation of the statute. In other words, the proceeding was not a nullity. It was, on the other hand, a cause pending in which, by the liberal principles of our code, the party plaintiff, though lame in one particular, might be allowed to cure that defect and proceed to a determination of the merits.

It is urged that no sufficient exception was preserved by plaintiff, and it is true that the record does not disclose any special exception to the leave given defendants to file the amended answer. But there appears adequate and proper exception to the action of the trial court in sustaining the motion to dismiss.

Much discussion was had in argument respecting the proper construction of the sections of the Revised Statutes, 6134 and 5, which authorize actions of this character, The view' we take of the record'makes any discussion of the statute unnecessary. Nor do we find it necessary to multiply authorities. The' curious reader will find plenty of them in the citations given by the learned counsel which appear in the reporter’s notes.

It is urged that no reply was filed to the amended answer. In our judgment none was needed.

The judgment will be reversed and the cause remanded. '

Reversed.

Shauck, C. J., Price, Crew, Summers and Davis, JJ., concur.  