the deceased's estate. After both the Delaware and Pennsylvania Statutes of Limitations had expired, the Plaintiff was permitted to amend substituting the parents as plaintiffs, as required by the Pennsylvania Statute. In allowing the amendment the Court said, inter alia, 'Modern authorities favor allowing amendments to prevent failure of justice, especially where the statute of limitations has run. The suggested amendment would not set up a new cause of action or change the legal theory of recovery in any particular. The defendant already has notice of all the pertinent facts as stated in the original declaration.'
In the present proceeding, the Defendants largely rely on that which was held in Rosenzweig, Administratrix v. Heller, 302 Pa. 279, 153 A. 346. In that case, the widow of the deceased instituted an action in the Pennsylvania Courts in her capacity as widow seeking damages for the death of her husband, who was killed in an accident in the State of New Jersey. After the one year Pennsylvania Statute of Limitations had expired the Plaintiff asked for an amendment substituting her name as administratrix ad prosequendum, as required by the New Jersey Statute. The Lower Court allowed the amendment, but the Pennsylvania Supreme Court reversed on the ground that the amendment would introduce a new cause of action after the expiration of the statutory period of one year. The Rosenzweig Case is clearly distinguishable from the present one. The Rosenzweig Case was commenced by the issuing and service of a summons only which informed the Defendant of the capacity of the Plaintiff only as it appeared in the caption. The present action was commenced by filing a complaint, a copy of which was served on the Defendants together with a summons. Although the caption of the summons and of the Complaint refer to the Plaintiff as an individual, the first paragraph of the Complaint reads as follows:
'That prior to the institution of this action, the plaintiff Lee Fierstein, was duly appointed the Executrix of the Last Will and Testament of Stanley C. Fierstein, deceased, by the County Court of the County of Harris, state of Texas, * * * '
In the present action the Defendants had notice, from the beginning, of the legal theory of recovery, and that the Plaintiff is executrix under the Last Will and Testament of the deceased, which notice was entirely lacking in the Rosenzweig case.
In New York Central & Hudson River R.R. Co. v. Kinney, 260 U.S. 340, 43 S. Ct. 122, 123, 67 L. Ed. 294, Justice Holmes, speaking for the Supreme Court, said, inter alia, ' * * * 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 the opinion that a liberal rule should be applied.'
This same distinguishing feature was stressed by the Circuit Court of Appeals, Third Circuit, in Quaker City Cab Co. v. Fixter, 4 F.2d 327, 328, where the plaintiff, who was both widow of the deceased and administratrix of the deceased's estate, instituted an action in her capacity as administratrix, seeking recovery under the Pennsylvania wrongful Death Statute. However, her statement of claim (complaint) did declare that she was the widow of the deceased and was entitled to recover damages as his widow. The District Court, after the Pennsylvania Statute of Limitations had expired, permitted an amendment substituting the widow for the administratrix. The Circuit Court of Appeals, in affirming the order of the District Court, said, inter alia, 'It abundantly appeared in the statement of claim (complaint) that the plaintiff was widow, as well as administratrix, and we think that the amendment was one of form and not of substance, and in such case an amendment may be made under sections 948 and 954 of the Revised Statutes of the United States (28 U.S.C.A. §§ 767, 777). Federal courts are very liberal in allowing amendments to prevent a miscarriage of justice.'
In view of these decisions and of the essential differences between the Rosenzweig case and the present one, it is plain that the Rosenzweig case is not controlling here.
The rule applied by the Federal Courts is that an amendment changing the capacity in which Plaintiff sues does not change the cause of action so as to let in the defense of limitations. Missouri, K. & T.R. v. Wulf, 226 U.S. 570, 33 S. Ct. 135, 57 L. Ed. 355; Quaker City Cab Co. v. Fixter, 3 Cir., 4 F.2d 327; Weldon v. United States, 1 Cir., 65 F.2d 748; Lopez v. United States, 4 Cir., 82 F.2d 982; United States v. Powell, 4 Cir., 93 F.2d 788; Bixler v. Pennsylvania R. Co., D.C.M.D. Pa., 201 F. 553.
Liberal interpretations of the Federal Rules of Civil Procedure, the trend of Federal Courts to treat amendments similar to those sought by the present motion as not instituting a new cause of action, and the requirements of substantial justice all support Plaintiff's motion to amend.
The Plaintiff should be given an opportunity, in accordance with the prayer of her motion, to amend the caption of the summons and Complaint and paragraphs sixteen and twelve of the Complaint.
An appropriate order has heretofore been filed by this Court.
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