Daiprai v. Moberly Fuel & Transfer Co.

• Decision Date: 10 October 1949
• Docket Number: 41146
• Citation: 223 S.W.2d 474,359 Mo. 789
• Parties: Mrs. Fred Daiprai, Appellant, v. Moberly Fuel & Transfer Company, a Corporation, Respondent
• Court: Missouri Supreme Court

223 S.W.2d 474

359 Mo. 789

Mrs. Fred Daiprai, Appellant, v. Moberly Fuel & Transfer Company, a Corporation, Respondent

No. 41146

Supreme Court of Missouri

October 10, 1949

Appeal from Randolph Circuit Court; Hon. Lawrence Holman Judge.

Affirmed.

SYLLABUS

The facts and holding of the opinion are adequately summarized in the headnote.

Don C. Carter, Raymond L. Falzone and Wilbur F. Daniels for appellant.

(1) The court erred in holding that it had no discretion to permit the amendment. General Code for Civil Procedure, Laws 1943, sec. 17, p. 361; General Code for Civil Procedure, Laws 1943, sec. 18, p. 378; 39 Am. Jur., sec. 126, p. 1005; 47 C.J., sec. 298, p. 162; Hackett v. Van Frank, 119 Mo.App. 648; Cytron v. St. Louis Transit Co., 205 Mo. 692; Kelly v. Carson Petroleum Co., 123 Misc. 918, 206 N.Y.S. 590; San Antonio & A.P.R. Co. v. D. M. Picton & Co., 111 S.W.2d 842. (2) Amendments are permitted to change the description of a party defendant from that of a co-partnership to a corporation and such amendment does not permit the invoking of the statute of limitations. 74 A.L.R., p. 1281; 121 A.L.R., pp. 1324, 1329, 1339, 1346; 17 R.C.L. 815; Bush v. Serat, 217 S.W. 865; Hackett v. Van Frank, 119 Mo.App. 648; Hirsch v. Hirsch, 273 S.W. 151; Blair v. Hall, 201 S.W. 945; Glover & Son Comm. Co. v. Abilene Milling Co., 136 Mo.App. 365; Stookey v. St. Louis-S.F.R. Co., 215 Mo.App. 411, 249 S.W. 141; Maddux v. Gardner, 192 S.W.2d 14; Pickering Mfg. Co. v. Gordon, 168 S.W. 14; Evans v. List, 193 Ark. 13, 97 S.W.2d 73; Youngblood v. Daily & Weekly Signal Tribune, 15 La. App. 379, 131 So. 604; Markel v. Dowling & Co., 5 Pa. D. & C. 403; Grand Lodge A.P.V.W. v. Bollman, 22 Tex. Civ. App. 106, 53 S.W. 828; Goldstein v. Peter Fox Sons Co., 22 N.D. 636; Needham v. Washburn, 4 Cliff. 254, Fed. Case No. 10,082; Lewis Lumber Co. v. Camody, 137 Ala. 578, 35 So. 126; Birmingham Iron & Dev. Co. v. Hood, 19 Ala.App. 4, 94 So. 835; C. H. Fargo & Co. v. Cutshaw, 12 Ind.App. 392, 39 N.E. 532; Prairie Lodge No. 87, A.F.A.M. v. Smith, 58 Miss. 301; Remick v. J. Spaulding & Sons Co., 82 N.H. 182, 131 A. 608. (3) The courts have repeatedly permitted amendments on behalf of plaintiffs even though such amendments would toll the statute of limitations. Cytron v. St. Louis Transit Co., supra; Kelly v. Carson Petroleum Co., supra; San Antonio & A.P.R. Co. v. D. M. Picton & Co., supra; Drakopulos v. Biddle, 288 Mo. 424, 231 S.W. 924; Pyle v. University City, 279 S.W. 217; Ohio I & K Heater Co. v. Shafer, 19 Ohio App. 399.

C. M. Hulen for respondent.

(1) The cause of action pleaded in the original petition, as well as in the so-called "amended petition," is based upon Section 3672, Missouri Annotated Statutes, and the parties entitled to maintain such action are set forth in Section 3677, Missouri Annotated Statutes. (2) The so-called "amended petition" is not an amendment of the original petition, but a substitution of parties defendant and cause of action. Sec. 847.17-A, Mo. Annotated Stat.; 2 F.R.D. 167; 28 F.Supp. 899; Fair v. Augen, 133 S.W.2d 402; Meyer v. Oregon Ry. Co., 271 S.W. 865; Webster v. Joplin Water Works, 177 S.W.2d 447; Thompson v. Allen, 86 Mo. 85; Bank of Mountain View v. Winebrenner, 195 S.W.2d 486; Anderson v. Doran, 211 S.W. 80; 47 C.J., Chap. 297.

OPINION

Leedy, J.

Action under §§ 3672-3677, R.S. '39, and Mo. R.S.A., to recover $ 10,000 damages for negligently causing the death of plaintiff's husband, Fred Daiprai, a coal miner. Brought one day short of the running of the statute of limitations against A. M. Bradley, Joe Donatti, and Edwin W. Carter as copartners doing business as Moberly Fuel & Transfer Company, these individuals, after having been duly served with process, appeared and filed a joint motion to make the petition more definite and certain or for a bill of particulars. More than a year later, and while this motion was still pending and undisposed of, plaintiff, without asking leave of court, filed an amended petition making Moberly Fuel & Transfer Company the sole defendant, and alleging it to be a corporation. The original and amended petitions differed only in these respects: The amended petition omitted all references to the individuals sued as copartners in the original petition; alleged "Moberly Fuel & Transfer Company" to be a corporation, and substituted the word "defendant" for "defendants" wherever the latter had appeared in the original.

It is stipulated that "service was had on said Moberly Fuel & Transfer Company, a corporation, on said amended petition on the 3rd day of July, 1947, in Randolph County, Missouri." The corporation filed its answer and also a motion to dismiss, the grounds of the latter being that the amended petition "constitutes an entire substitution of parties defendant," and for the further reason that the same "fails to state a claim on which relief can be granted." On the hearing of the motion to dismiss, it was stipulated that "at the time of the filing of the original petition that the three named parties who were joined as partners owned the corporation that was subsequently sued, and that the same three parties owned the corporation at the time of the filing of the purported amended petition." The motion to dismiss was sustained and plaintiff appealed.

The question presented is whether the amendment was permissible in the discretion of the court after the statute of limitations had become a bar to a new action. Plaintiff contends the amendment merely corrected a misnomer "by changing the description of the party defendant from that of a copartnership to a corporation." Amendments correcting misnomers, even after the running of the statute of limitations, are almost universally upheld. However, we are constrained to hold that the facts here involved do not present that sort of situation, nor call for the application of that rule. "'The fact that the name of the corporation was the same as that of the [partnership] firm, and that the stockholders therein were the members of the firm, can make no difference. In the eye of the law, the firm and the corporation are two different persons.' 73 Mo. 694." Thompson v. Allen, 86 Mo. 85, 88. We think it is plain that there was a substitution of a new party defendant (the corporation) for and in the place of the individuals originally sued. Where the amendment is deemed a substitution or entire change of parties, it will not be allowed. 39 Am. Jur., Parties, § 126. In one of the latest Missouri cases involving this question, Haney v. Thomson, 339 Mo. 505, 98 S.W. 2d 639, the court in banc thus stated the applicable rule: "The general rule is well settled that, where new parties are brought in by amendment, and by process issued thereon, the statute of limitations continues to run in their favor until thus made parties. 37 C.J., pp. 1066, 1067, § 502. Jaicks v. Sullivan, 128 Mo. 177, 30 S.W. 890; Hiller v. Schulte, 184 Mo.App. 42, 167 S.W. 461; Gresham v. Talbot, 326 Mo. 517, 31 S.W. 2d 766; Cytron v. Transit Co., 205 Mo. 692, 702, 104 S.W. 109; Lilly v. Tobbein, 103 Mo. 477, 15 S.W. 618, 23 Am. St. Rep. 887." See, also, Anderson v. Doran, (Mo. App.) 211 S.W. 80; Meyer v. Oregon Interurban Railway Co., 219 Mo.App. 360, 271 S.W. 865; Campbell v. Webb, 356 Mo. 466, 202 S.W. 2d 35.

Haney...