DeSantis v. Angelo Merlino & Sons, Inc.
| Decision Date | 11 May 1967 |
| Docket Number | No. 38596,38596 |
| Court | Washington Supreme Court |
| Parties | Mike DeSANTIS, Appellant, v. ANGELO MERLINO AND SONS, INC., a Washington corporation, Respondent. |
Orvin H. Messegee, Seattle, for appellant.
Miracle, Treadwell & Pruzan, Seattle, for respondent.
This is a review of an order dismissing the plaintiff's (appellant's) amended complaint charging liability of Angelo Merlino & Sons, Inc., a Washington corporation, defendant (respondent), for the injuries incurred by the plaintiff in delivering merchandise to the defendant's place of business.
Plaintiff's original complaint denominated, as defendant, Angelo Merlino and his wife, doing business as Merlino Pure Food Products Company, a proprietorship. In fact, Angelo Merlino is only a vice-president and 5 per cent stockholder in the defendant corporation. Merlino, however, accepted service and notified the corporation and its insurance company of the claim. On advice of counsel, obtained by the insurance carrier for Merlino, he elected to await the running of the statute of limitations before notifying the plaintiff of the mistake made in the description of the parties.
An answer to the complaint was thus filed in which every allegation of the complaint was denied, including the averment that the defendant was a proprietorship. The answer also raised two affirmative defenses.
Merlino's attorney thereafter took the deposition of the plaintiff, required his physical examination, and entered into extended settlement negotiations with no satisfactory result.
After the statute of limitations had run on the claim, Angelo Merlino moved to dismiss the complaint against him individually by reason of the defect in parties. The trial court granted the motion to dismiss after a hearing on this matter, and also granted plaintiff's motion for leave to amend. The plaintiff then served an amended summons and complaint on opposing counsel.
The corporation thereafter challenged the jurisdiction of the court, stipulating that it had been served with summons and complaint and asserting the defense of the statute of limitations. The trial court sustained the defense and dismissed the plaintiff's action with prejudice. Plaintiff appeals.
The assignments of error advanced by the plaintiff present the following issue: Under the facts of this case, does a complaint which is amended immediately upon discovering the defendant has been erroneously named, but more than three years following accrual of the cause of action, correcting the designation of the defendant from a d/b/a to a corporation, relate back to the original complaint so as to toll the statute of limitations?
Rule of Pleading, Practice and Procedure 15(c), RCW vol. 0, provides that whenever a claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.
In cases involving an amendment, made after the applicable limitation period has run, the general rule has developed that RPPP 15(c) will not apply to an amendment which substitutes or adds a new party or parties for those brought before the court by the original pleadings--whether plaintiff or defendant. Hill v. Withers, 55 Wash.2d 462, 348 P.2d 218 (1960); 3 Moore, Federal Practice § 15.15, p. 1041. The clear reason for the rule is to prevent prejudice to the added party in exposing it to liability and thus giving the plaintiff a new cause of action after the running of the limitation period. Hill v. Withers, supra.
Because of the harshness of this rule, where the party substituted has actual knowledge of the claim against it, an exception in favor of relation back, both as to plaintiff and defendant, is recognized when the new and old parties have a sufficient identity...
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English v. Buss
... ... Ralph Williams' N.W. Chrysler Plymouth, Inc., 87 ... Wn.2d 327, 335, 553 P.2d 442 (1976), ... (9th Cir. 1984), DeSantis v. Angelo Merlino & Sons, ... Inc., 71 Wn.2d 222, ... ...
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PERRIN v. STENSLAND
...the opposing party will be put to no disadvantage. 10 Our Supreme Court adopted this guiding principle in DeSantis v. Angelo Merlino & Sons, Inc., 71 Wash.2d 222, 427 P.2d 728 (1967), relying on commentary in Moore's Federal Practice concerning the analogous federal rule. The original perso......
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English v. Buss
...9. English also cites to Korn v. Royal Caribbean Cruise Line, Inc., 724 F.2d 1397, 1400 (9th Cir. 1984), DeSantis v. Angelo Merlino & Sons, Inc., 71 Wn.2d 222, 225, 427 P.2d 728 (1967), and Hendrix v. Memorial Hospital of Galveston County, 776 F.2d 1255, 1257-58 (5th Cir. 1985), for the pro......
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North St. Ass'n v. City of Olympia
...the old rule was generally applied only to cases of mistaken capacity, misnomer or oversight. Hill, supra; DeSantis v. Angelo Merlino & Sons, Inc., 71 Wash.2d 222, 427 P.2d 728 (1967). While we have not yet determined the effect of the 1966 amendment, most courts have concluded that new par......
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§15.6 Analysis
...joined beforehand "so that it can be assumed, or proved, that relation back is not prejudicial." DeSantis v. Angelo Merlino & Sons, Inc., 71 Wn.2d 222, 224, 427P.2d728 (1967). When two parties seek the same relief, they may have an identity of interest. See Bunko, 95 Wn.App. at 501. Convers......
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§15.7 Significant Authorities
...88 Wn.2d 1001 (1977) (substitution of personal representative as real party in interest) (citing DeSantis v. Angelo Merlino & Sons, Inc., 71 Wn.2d 222, 427P.2d728 (1967) (pre-CR 15; relying on commentary in Moore's Federal Practice concerning the analogous federal rule), review denied, 88 W......