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WHARTON v. JONES

May 31, 1968

Preston WHARTON and Lacey Wharton, Administrators of the Estate of Denise Wharton, Deceased, Plaintiffs,
v.
Garland Louis JONES, Teresa Jones, Roger Santacrose, Defendants



The opinion of the court was delivered by: MATTHEWS

 A suit for damages for the wrongful death *fn1" of their minor child, Denise Wharton, has been filed by plaintiffs. They allege that while playing in the front yard of her home the child was injured due to the negligent operation of two automobiles, and that such injury resulted in the child's death. The injury and death occurred on May 23, 1964. Among other things the complaint recites that at the time of her death the child "was eight (8) years of age, in good health and in the possession of all her faculties and her parents were entitled to the services and support of the deceased and are entitled to funeral expenses incurred and have been damaged by her death as aforesaid in the sum of Twenty Thousand Dollars ($20,000.00)."

 The matter now before the Court is a motion by plaintiffs to amend their complaint so as to add a claim under the Survival Act of the District of Columbia. *fn2" Opposition to the motion has been interposed by the defendants. They maintain that the motion to add such claim was not filed until more than three years after the child was injured, and hence that the claim is barred by the statute of limitations. *fn3"

 It is insisted by plaintiffs that the amendment they seek should be permitted, that it would relate back to the beginning of the action and avoid the bar of the statute of limitations. Moreover, plaintiffs contend that the original complaint may be construed to embrace a claim under the Survival Act. However, the complaint itself does not support that contention.

 The Survival Act permits the injured person's own claim to be enforced after his death by his legal representative. The Wrongful Death Act creates a new right of action, upon the death of the injured person, for the benefit of his next of kin.

 Accordingly, the motion of plaintiffs to amend their complaint to include a demand for damages under the Survival Act over and above the initial demand for damages under the Wrongful Death Act should be denied. The attorneys for the defendants ...


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