Higginbotham v. Fearer Leasing, Inc.

• Decision Date: 23 April 1971
• Docket Number: No. 1,Docket No. 9507,1
• Citation: 32 Mich.App. 664,189 N.W.2d 125
• Parties: John R. HIGGINBOTHAM and Marion Haneline, Plaintiffs-Appellees, v. FEARER LEASING, INC., et al., Defendants, v. Russell CERTO, Third Party Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 125

189 N.W.2d 125

32 Mich.App. 664

John R. HIGGINBOTHAM and Marion Haneline, Plaintiffs-Appellees, v. FEARER LEASING, INC., et al., Defendants, v. Russell CERTO, Third Party Defendant-Appellant.

Docket No. 9507.

Court of Appeals of Michigan, Division No. 1.

April 23, 1971.

Leave to Appeal Denied July 14, 1971.

Released for Publication Aug. 26, 1971.

Aloysius F. Gazdecki, Southfield, for Fearer Leasing Inc., Sanford N. Lakin, Detroit, for Russell Certo.

David H. Fried, Detroit, for John R. Higginbotham.

Before DANHOF, P.J., and HOLBROOK and BRONSON, JJ.

HOLBROOK, Judge.

The auto accident which is the subject matter of this suit occurred on December 28, 1966. On February 23, 1968, plaintiffs brought suit against Fearer Leasing, Inc., and the other principal defendants, I.e., Packaging Corporation of America and John C. Paramenter, in the Wayne County Circuit Court, alleging that plaintiffs were injured in an auto accident when a vehicle owned by the corporate defendants and driven by driver Paramenter rear-ended plaintiffs' vehicle. An answer was filed on behalf of all defendants by their attorney. On May 31, 1968, a third-party complaint and summons was issued against Russell Certo as third-party defendant, by the defendants, acting as third-party plaintiffs.

The third-party complaint and summons were issued pursuant to the provisions of GCR 1963, 204, in which it was claimed that Certo would be a joint tortfeasor contributing to or causing the injuries claimed by plaintiffs. On September 20, 1968, the third-party summons and complaint were served on Russell Certo, and on November 15, 1968, an answer to the third-party complaint was filed on behalf of Russell Certo by his attorney. Subsequent thereto, numerous correspondence, including exchange of pleadings, were submitted between various counsel.

Third-party defendant Russell Certo filed a motion for separate trials on January 12, 1970, as between the claims of the plaintiffs against the defendants, and the third-party plaintiffs (defendants) against Russell Certo as third-party defendant. In paragraph 5 of that motion, it was specifically alleged that the statute of limitations had expired. An answer to Certo's motion was filed on behalf of the principal defendants, third-party plaintiffs, by their attorney. No answer or response was filed on behalf of the principal plaintiffs. The motion was heard by the Honorable Nathan J. Kaufman of the Wayne County Circuit Court on January 30, 1970, and was denied. On April 13, 1970, following a hearing for presentment of an order, the Court entered the order denying separate trials.

On April 27, 1970, at the pretrial hearing before the Honorable Theodore R. Bohn, the plaintiffs for the first time requested an amendment to the pleadings wherein Russell Certo would be added as a principal defendant. Objection was made to the form, time and manner of the motion. The Court granted the motion by including in the pretrial statement its decision that the plaintiffs may file a complaint against Russell Certo as a principal defendant, with an order allowing plaintiffs to file an amended complaint against Russell Certo, as a principal defendant, entered May 14, 1970.

Leave to appeal the trial court ruling was granted by this Court on July 21, 1970.

The trial court, in its decision allowing the addition of the third-party defendant as a principal defendant after the running of the statute of limitations, relied on the case of Bensinger v. Reid (1969), 17 Mich.App. 219, 169 N.W.2d 361. That case stands for the general proposition that pleadings may be amended to add a party defendant after the statute of limitations has run, if the party added knows of the litigation and is not prejudiced by the amendment. That case involved the 'misnomer problem', E.g., serving the right defendant in his wrong capacity; see also Wells v. The Detroit News, Inc. (1960), 360 Mich. 634, 104 N.W.2d 767.

It appears, however, that there was no misnomer problem in the instant case, and therefore Bensinger v. Reid, Supra, is not applicable. We next consider whether the amendment to name the third-party defendant as a principal defendant by plaintiffs may relate back to the date of the original pleadings under the provisions of GCR 1963, 118.4. ¹

The following committee notes and authors' comments appear in 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed.), pp. 409, 414, 415:

'Presently there is much Michigan case authority to the effect that a party cannot set up a new cause of action barred by the statute of limitations at time of amendment. This limitation on amendment lends itself to technical legalistic interpretations as to what is a cause of action, yet a court willing to grant permission to amend is apt to broaden the meaning of a cause in order to do it. The federal provision places the matter on the basis of certainty and fairness. A pleader under this rule will be allowed to amend if the amendment relates back to the conduct, transaction, or occurrence originally set forth. Thus the adverse party is not prejudiced, since he has been given notice of the matter originally pleaded. Once made a party to an action arising from a particular fact situation, he is aware that the original pleadings are subject to amendment, and he ought not be permitted to force his opponent into a legally different statement of the facts for the sole purpose of barring the claim. And too, the statute of limitations is satisfied, since a new set of facts cannot be added by amendment if the statute has already run.

'Rule 118 imposes no subject matter restrictions on amendments to pleadings. Therefore, amendments by leave of court, as well as amendments without leave, may introduce new parties, new matter, or new causes of action or defenses, unless precluded by the rules of joinder or the statute of limitations.

'The stage at which leave to amend is requested, according to the circumstances of each case, is nevertheless a pertinent factor affecting the court's discretion. It will obviously become increasingly difficult to justify leave to amend at each later stage of a proceeding, especially if the circumstances indicate that the same action could have been taken at any earlier stage.'

Since GCR 1963, 118.4 is derived from F.R.Civ.P. 15(c), it is helpful to examine the decisions interpreting the latter with respect to the instant problem. In the case of Hankinson v. Pennsylvania Railroad Company (E.D.Pa.1958), 160 F.Supp. 709, the facts were nearly identical to the instant case, as follows: Plaintiff commenced an action against the Pennsylvania Railroad to recover under the Federal Employers' Liability Act and the railroad then joined the United States as a third-party defendant before the statute of limitations had run on the claim against the United States. Hankinson then sought, after the statute of limitations had run, to amend his original complaint to name the United States, for the first time, as an original defendant. The Federal District Court held that the complaint could not be amended to include the United States as a principal defendant since the statute of limitations had expired. In Hankinson, supra, on p. 710, it is stated in part:

'The plaintiff next insists that, because the defendant railroad impleaded the government as a third-party defendant within two years from the time plaintiff's cause of action accrued, the statute of limitations was tolled. This is an ingenious but untenable contention. Carlisle v. Monongahela Ry. Co., D.C.W.D.Pa.1954, 16 F.R.D. 426; Horan v. Pope & Talbot, Inc., D.C.E.D.Pa.1953, 119 F.Supp. 711; Lommer v. Scranton-Spring Brook Water Service Co., D.C.M.D.Pa.1943, 3 F.R.D. 27. The amended complaint Began the plaintiff's action on His claim against the United States too late. It is of no avail to the plaintiff that the railroad began its action in Its claim against the government in time.'

In Storey v. Garrett Corporation (C.D.Cal.1967), 43 F.R.D. 301, it was decreed that the 'relation back' doctrine does not enable a plaintiff to join entirely new parties as defendants after the statute of limitations has run, and the 1966 amendment liberalizing the Federal Rule (which has not been incorporated in GCR 1963, 118.4) has not changed such a basic premise; see also 1A Barron & Holtzoff, Federal Practice and Procedure, § 448, pp. 768--770 and supplement.

There is, however, a Federal Court decision holding to the contrary and allowing the amendment of the complaint by plaintiff adding a new defendant. Meredith v. United Air Lines (S.D.Cal.1966), 41 F.R.D. 34. In Meredith a passenger was injured when the pilot of a commercial airplane was required to veer off abruptly to avoid a military-type airplane. Suit was commenced by the passenger and her husband against the commercial airline and the United States for her injuries, medical expenses, and loss of services before this action was barred by the one-year California statute of limitations. Subsequently, the passenger and her husband discovered that the military-type airplane may have been oeprated by a manufacturer's test pilot and they filed an amended complaint more than one year after the accident seeking recovery from the manufacturer, which had knowledge of the action when it was filed or soon after it was filed. The manufacturer made a motion to dismiss the amended complaint as to it under the California one-year statute of limitations. The District Court held that the amended complaint related back to the date of filing of the original complaint under the Federal Rule of Civil Procedure 15(c) as the Rule was amended in 1966. The Court stated on p. 38 in part as follows:

'Civil Rule 15(c) as amended by the recent amendments which became effective July 1, 1966, reads as follows:

"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...