John Paris v. Dr. James W. Braden, M.D., Casualty Hospital, and Travelers Insurance Company

234 F.2d 40

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 16, 1956
• Docket: 18-1115
• Status: Published

Opinions

PER CURIAM.

This casé arose in the District Court on a complaint for wrongful death filed under § 16-1201, D.C.Code 1951, by the surviving children of the deceased. The defendants moved to dismiss on the ground that the suit was not brought in the name of the “personal representative” of the deceased, as required by § 16-1202, D.C.Code 1951. The motion was granted. The court also denied an application of the plaintiffs for additional time to qualify. The purport of this application apparently was that the court withhold actual dismissal of the complaint until a personal representative could be appointed and could seek to be substituted as plaintiff.

Appellants, the surviving children, contend in the first place that as next of kin they are personal representatives within the meaning of the statute. This contention is contrary to the decision of this court in Harris v. Embrey, 70 App.D.C. 232, 105 F.2d 111. It is there held that a wrongful death action must fail if not brought by the “personal representative,” and that the deceased’s mother, who was his next of kin but had not been appointed personal representative by the court, could not maintain the action. See, also, Thomas v. Doyle, 88 U.S.App.D.C. 95, 97-98, 187 F.2d 207, 209-210. Rule 17(a), Fed.Rules Civ. Proc. 28 U.S.C.A., is not to be construed as modifying or repealing specification in our statute of the party authorized to bring an action for wrongful death.

As to the application for additional time, we find no basis in the present record for holding that the District Court abused its discretion in denying it.

Affirmed.