Murrell v. Springdale Mem'l Hosp.

Melvin David MURRELL as Successor
Administrator of the Estate of Bonnie Marie
Murrell, Deceased; Melvin David Murrell, as
Special Administrator of the Estate of Melvin
Dale Murrell, Deceased, as Surviving Spouse
of Bonnie Marie Murrell, Deceased; and Melvin
David Murrell, Belinda Gail Burke, and Marie
Sue Murrell, Surviving Children of Bonnie
Marie Murrell, Deceased, and Melvin Dale
Murrell, Deceased v. 
SPRINGDALE MEMORIAL HOSPITAL; John Power,
M.D.; and Teryl Ortego, M.D.

97-91                                              ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered October 9, 1997


1.   Action -- wrongful death -- deceased surviving spouse's action did not
     survive his death. -- The deceased surviving spouse's action for
     the wrongful death of his wife did not survive his death; the
     supreme court has consistently held that a wrongful-death
     claimant does not suffer an "injury to his person or property"
     as those terms are used in the survival statute.

2.   Action -- wrongful death -- survival -- claims barred because parties' suit
     was untimely. -- The wrongful-death claims of the children of the
     deceased, who died in 1990, and the survival claim of the
     estate of the deceased were barred because the parties did not
     file suit prior to 1995; the savings statute, Ark. Code Ann.
      16-56-126 (1987), which provides that if þthe plaintiff
     therein suffers a nonsuitþ then þthe plaintiff may commence a
     new action within one (1) year,þ could not save their claims
     because the children were not parties to the first action.

3.   Action -- wrongful death -- second action brought by deceased surviving
     spouse as administrator filed too late. -- The second action brought
     by the deceased surviving spouse as administrator of the
     estate of the deceased was simply filed too late; a wrongful-
     death action brought by a plaintiff in his individual capacity
     pursuant to Ark. Code Ann.  16-62-102 (Supp. 1995) involves
     neither the same action nor the same plaintiff as a survival
     action brought by the plaintiff in his representative capacity
     on behalf of the decedentþs estate pursuant to Ark. Code Ann.
      16-62-101 (1987).

4.   Action -- parties -- no authority for argument that complaint brought in
     name of one party is automatically converted into complaint on behalf of
     others. -- Although Ark. R. Civ. P. 17(a) requires that actions
     be brought in the name or names of the real parties in
     interest, the supreme court noted that it had been cited to no
     authority in which it has been held that a complaint brought
     in the name of one party is automatically converted into a
     complaint on behalf of others as a result of the rule. 


     Appeal from Washington Circuit Court; Kim Smith, Judge;
affirmed.
     Bob Estes and Raymond C. Smith, for appellants.
     Bassett Law Firm, by: Dale Garrett and James M. Graves, for
appellee Springdale Memorial Hospital.
     Ledbetter, Hornberger, Cogbill, Arnold & Harrison, by: Charles
Ledbetter and Virginia C. Trammell, for appellee John Power, M.D.
     Davis, Cox & Wright, by: Constance G. Clark, for appellee
Teryl Ortego, M.D.

     David Newbern, Justice.
     This is an appeal of a dismissal of one wrongful-death action
and a summary judgment in a second wrongful-death and survival
action.  The dismissal and summary judgment favored Springdale
Memorial Hospital and Doctors John Power and Teryl Ortego.  The
claims arose from the death of Bonnie Marie Murrell who died
November 26, 1990, while at Springdale Memorial Hospital for
treatment of a bleeding gastrointestinal tract.  We hold that a
claim brought by Ms. Murrell's widower, Melvin Dale Murrell, prior
to proceedings in probate, did not survive his death and that a
subsequent claim brought by Melvin Dale Murrell as Ms. Murrell's
personal representative and the claims of her children were barred
by the statute of limitations.
     On November 23, 1992, Melvin Dale Murrell, as surviving spouse
of Ms. Murrell, filed an action pursuant to Ark. Code Ann.  16-62-
102 (Supp. 1995) alleging malpractice on the part of Dr. Power, Dr.
Ortego, and the Hospital resulting in Ms. Murrell's death.  The
lawsuit was styled Melvin Murrell, as Surviving Spouse of Bonnie
Marie Murrell, Deceased v. Springdale Memorial Hospital; John
Power, M.D., and Teryl Ortego, M.D.  Mr. Murrell sought damages for
medical expenses, funeral expenses, conscious pain and suffering of
the decedent prior to her death, loss of services and companionship
of the decedent, loss of earnings of the decedent, and mental
anguish of the surviving spouse and children of the decedent.  Mr.
Murrell also sought punitive damages.  The complaint listed as
statutory beneficiaries Melvin Murrell, Melvin David Murrell,
Belinda Gail Burke, and Marie Sue Murrell.  When the complaint was
filed, there was no estate opened for the decedent; consequently,
there was no administrator.  On December 28, 1993, the Hospital
moved to strike the part of the complaint alleging damages on
behalf of the decedent and the children of the decedent who were
not named as plaintiffs.  On February 17, 1994, Melvin Dale Murrell
opened an estate for his deceased wife and was appointed
administrator.  He moved to be substituted in his new status as
administrator in the original suit he had filed personally. 
Pursuant to Ark. R. Civ. P. 41, Mr. Murrell took a voluntary
nonsuit of that claim on March 4, 1994, without any ruling having
been entered on the motion to substitute.
     On February 28, 1995, a second complaint was filed by Melvin
Murrell as administrator of the estate of Bonnie Marie Murrell,
deceased, and as surviving spouse of Bonnie Marie Murrell,
deceased, and David Murrell, Belinda Gail Burke, and Marie Sue
Murrell as the surviving children of Bonnie Marie Murrell,
deceased.  It repeated the allegations of the earlier complaint.
     In September, 1995, the Hospital and the doctors moved for
partial summary judgment.  They argued that, although the statute
of limitations was tolled for Melvin Dale Murrellþs claim when he
nonsuited, the claims of the estate and the other heirs at law were
time barred.  The Trial Court denied the motions on the basis that
the body of the first complaint sought damages on behalf of the
surviving children, the surviving spouse, and the damages that
could be recovered by the estate of the deceased, and thus the
defendants were put on notice that these damages were sought and
the action was filed by an heir of the deceased. 
     On August 22, 1996, Melvin Dale Murrell died.  His son, Melvin
David Murrell, was appointed successor administrator for the estate
of Bonnie Marie Murrell.  He was also appointed special
administrator of the estate of Melvin Dale Murrell to perform all
acts as necessary to pursue the claim of Melvin Dale Murrell in the
action.
     The Hospital and the doctors then moved to dismiss the
complaint, arguing that the claim of Melvin Dale Murrell, as the
surviving spouse of Bonnie Murrell, did not survive his death. 
They also moved the Trial Court to reconsider their summary
judgment motions.  In response, the Trial Court dismissed Melvin
Dale Murrell's complaint and granted the summary judgment motions.
     Melvin David Murrell and the other surviving children of
Bonnie Marie Murrell contend that the Trial Court erred in granting
summary judgment and dismissal as to the claims of (1) Melvin Dale
Murrell, (2) the children of Bonnie Murrell, and (3) the estate of
Bonnie Murrell.  They argue that the 1992 complaint alleged two
separate causes of action:  (1) an action on behalf of the heirs,
including the surviving spouse of Bonnie Murrell and the children
of Bonnie Murrell, pursuant to the Wrongful Death Act, Ark. Code
Ann.  16-62-102 (1987 and Supp. 1995), and (2) an action on behalf
of the estate pursuant to Ark. Code Ann.  16-62-101 (Repl. 1994).

                 1.  Melvin Dale Murrell's claim
     Melvin Dale Murrell's initial complaint, filed prior to the
opening of Bonnie Marie Murrell's estate, was appropriately brought
according to  16-62-102(b) and it was within the applicable two-
year statute of limitations.  See Ark. Code Ann.  16-114-203(a)
(Supp. 1995); Pastchol v. St. Paul Fire & Marine Ins., 326 Ark.
140, 929 S.W.2d 713 (1996); Hertlein v. St. Paul Fire & Marine Ins.
Co., 323 Ark. 283, 914 S.W.2d 303 (1996).  When he took a voluntary
nonsuit on March 4, 1994, pursuant to Ark. R. Civ. Pro. 41, he had
one year from that date to refile.  Ark. Code Ann.  16-56-126
(1987).  Melvin Dale Murrell filed the second action on February
28, 1995, which was within the one-year period.  When Melvin Dale
Murrell died on August 22, 1996, the issue arose as to whether his
wrongful-death claim survived his death.  
     The statutory provision for the survival of actions beyond the
death of a claimant is  16-62-101 which provides: 

          For wrongs done to the person or property of another, an
     action may be maintained against the wrongdoers, and the
     action may be brought by the person injured or, after his
     death, by his executor or administrator against the wrongdoer
     or, after his death, against his executor or administrator, in
     the same manner and with like effect in all respects as
     actions founded on contracts.

     Melvin Dale Murrellþs action for the wrongful death of his
wife did not survive his death.  We have consistently held that a
wrongful-death claimant does not suffer an "injury to his person or
property" as those terms are used in the survival statute.   White
v. Maddux, Special Admr., 227 Ark. 163, 296 S.W.2d 679 (1956);
Jenkins, Admr. v. Midland Valley Rd. Co., 134 Ark. 1, 203 S.W. 1 (1918).

      2.  The children and estate of Bonnie Marie Murrell 
     The wrongful-death claims of the children of Bonnie Murrell
and the survival claim of the estate of Bonnie Murrell are barred
because the parties did not file suit prior to 1995.  The savings
statute,  16-56-126, cannot save their claims because the children
were not parties to the first action.  It provides that if þthe
plaintiff therein suffers a nonsuitþ then þthe plaintiff may
commence a new action within one (1) year ....þ (Emphasis
supplied.)  See Rogers v. Williams, Larson, Voss, et al., 777 P.2d 836, 839 (Kan. 1989).    
     The second action brought by Melvin Dale Murrell as
administrator of the estate of Bonnie Marie Murrell was simply
filed too late.  The fact that Mr. Murrell's first claim might have
been the beneficiary of the savings statute, at least until his
death, is not relevant to the timliness or untimliness of the
second action.  A wrongful-death action brought by a plaintiff in
his individual capacity pursuant to  16-62-102 involves neither
the same action nor the same plaintiff as a survival action brought
by the plaintiff in his representative capacity on behalf of the
decedentþs estate pursuant to  16-62-101.  See Smith v. Tang, 926 S.W.2d 716, 719 (Mo. App. E.D. 1996).
     It is argued that, because a personal representative bringing
a wrongful-death action is no more than a trustee for the
beneficiaries, Reed v. Blevins, 222 Ark. 202, 258 S.W.2d 564 (1953)
(George Rose Smith, J., dissenting), the beneficiaries of Bonnie
Marie Murrell were the "real parties in interest" in the first
action in accordance with Ark. R. Civ. P. 17(a).  While that rule
requires that actions be brought in the name or names of the real
parties in interest, we have been cited to no authority in which it
has been held that a complaint brought in the name of one party is
automatically converted into a complaint on behalf of others as a
result of the rule.  
     Affirmed.