Funk v. Wagner Machinery, Inc., 85-CA-1593-S
| Decision Date | 17 January 1986 |
| Docket Number | No. 85-CA-1593-S,85-CA-1593-S |
| Citation | 710 S.W.2d 860 |
| Court | Kentucky Court of Appeals |
| Parties | Robin FUNK & Debbie Funk, Appellants, v. WAGNER MACHINERY, INC., Elgin Leach Corporation, Elgin Leach International, Inc., Elgin Leach International and Elgin Sweeper Company, Appellees. |
David B. Sloan, Covington, for appellant.
Thomas C. Smith, Florence, Ronald L. Green, Lexington, Mark Arnzen, Covington, for appellees.
Before CLAYTON, DUNN and McDONALD, JJ.
This is an appeal from the judgment of the Boone Circuit Court which dismissed the claim of the appellant, Robin Funk, a street cleaner, for injuries he sustained from an accident involving an Elgin Pelican, a street sweeper, manufactured by the appellee, Elgin Sweeper Company. The sweeper was purchased by the appellant's employer, the City of Florence. The order was placed through the appellee, Wagner Machinery, Inc., and Elgin Leach Corporation, another middleman who had a contract with Elgin Sweeper to distribute the latter's products.
The appellant incurred his injuries on January 28, 1981. On January 27, 1982, he filed his complaint naming as defendants Wagner, Elgin Leach Corporation and Elgin Leach International, Inc. On March 11, 1982, Funk amended his complaint to include as a defendant, Elgin Sweeper Company. All the defendants were dismissed by the trial court on their respective motions for summary judgment. The trial court ruled that the claim against Elgin Sweeper was barred by the one-year statute of limitations for personal injury actions and that the other defendants were relieved from any liability because the appellant was contributorily negligent as a matter of law and because of the provisions relating to middlemen in products liability cases contained in KRS 411.340.
On appeal, the appellant contends that the trial court erred in not applying CR 15.03 as to provide for his amendment adding Elgin Sweeper as a party to relate back to the date of the original pleading. CR 15.03 provides in relevant part as follows:
(1) Whenever the 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.
(2) An amendment changing the party against whom a claim is asserted relates back if the condition of paragraph (1) is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (a) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (b) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. [Continued]
This rule, and particularly the notice necessary to satisfy section (2) thereof, was discussed by this court in the recent case, Clark v. Young, Ky.App., 692 S.W.2d 285 (1985). Therein it was held that actual notice is not required under CR 15.03(2). We believe this case to be precisely on point and applicable to the instant case. Certainly there is no question that the amended complaint concerned the same occurrence as set forth in the original complaint which was filed within the one-year statute of limitations. Further, while it is inconceivable to us that a sales representative who has been sued because of the defect in a product of a manufacturer it represents or its insurer would not immediately notify the manufacturer of such an event, the ongoing business relationship of the agent and the manufacturer, which encompasses the very item alleged to be defective, is...
To continue reading
Request your trial
-
Schwindel v. Meade County
...that an action might be filed against them, citing Clark v. Young, Ky.App., 692 S.W.2d 285, 288-89 (1985), Funk v. Wagner Machinery, Inc., Ky.App., 710 S.W.2d 860, 861-62 (1986), and Halderman v. Sanderson Forklifts Co., Ltd., Ky.App., 818 S.W.2d 270, 272-73 (1991), in all of which our Cour......
-
Gailor v. Alsabi
...have known about the action brought against him. CR 15.03(2)(b). Actual, formal notice may not be necessary. Cf. Funk v. Wagner Machinery, Inc., Ky.App., 710 S.W.2d 860 (1986). Nevertheless, knowledge of the proceedings against him gained during the statutory period must be attributed to th......
-
Kelter v. Wasp, Inc.
...lessees and lessors; and agents to principals. See, e.g., Clark v. Young, 692 S.W.2d 285 (Ky.App.1985); Funk v. Wagner Machinery, Inc., 710 S.W.2d 860 (Ky.App.1986); Halderman v. Sanderson Forklifts Co., 818 S.W.2d 270 (Ky.App.1991). Unlike those cases, there is no basis for the suggestion ......
-
Kelter v. WASP, Inc.
...lessees and lessors; and agents to principals. See, e.g., Clark v. Young, 692 S.W.2d 285 (Ky. App. 1985); Funk v. Wagner Machinery, Inc., 710 S.W.2d 860 (Ky. App. 1986); Halderman v. Sanderson Forklifts Co., 818 S.W.2d 270 (Ky. App. 1991)). Unlike those cases, there is no basis for the sugg......