Marr v. Geiger Ready-Mix Co.
| Decision Date | 08 April 1972 |
| Docket Number | No. 46224,READY-MIX,46224 |
| Citation | 495 P.2d 1399,209 Kan. 40 |
| Parties | Eva Marie MARR, Appellee, v. GEIGERCOMPANY, Appellant. |
| Court | Kansas Supreme Court |
1. The plaintiff was injured in an intersection collision by a truck owned and operated by the Geiger Ready-Mix Company. Thereafter the plaintiff filed a negligence action to recover for her injury and damages suing as defendant the Geiger Ready-Mix Company. Summons was served upon the office manager of the Geiger Ready-Mix Company. The Geiger Ready-Mix Company answered, and among the defenses asserted was a motion to dismiss the plaintiff's petition alleging the court had no jurisdiction 'because no summons was properly issued and served herein according to law.' After the statute of limitations had run, the defendant had the motion to dismiss set for hearing and asserted for the first time in an affidavit that he Geiger Ready-Mix Company was a sole proprietorship owned and operated by E. W. Geiger, Jr. The plaintiff immediately moved the court for an order permitting her to amend her original petition by substituting the name of E. W. Geiger, Jr., d/b/a Geiger Ready-Mix Concrete Company, for the Geiger Ready-Mix Company, under the provisions of K.S.A.1971 Supp. 60-215(a) and (c). The trial court, after hearing evidence on the motion, made findings of fact and sustained the plaintiff's motion permitting her to amend her original petition by changing the name of the defendant as requested. On appeal it is held: The prerequisite conditions set forth in K.S.A.1971 Supp. 60-215(c) having been met, as fortified by findings based upon substantial evidence, the trial court did not err in permitting the plaintiff to amend her original petition by changing the name of the defendant.
2. K.S.A. 60-215(c), as amended by the Supreme Court (order dated July 17, 1969) is identical to Federal Rule No. 15(c) of the Federal Rules of Civil Procedure, as amended in 1966, and decisions construing the Federal Rule, as amended, are persuasive in construing 60-215(c), as amended.
3. Under K.S.A.1971 Supp. 60-215(c) an amendment changing the party against whom a claim is asserted relates back, if the amendment satisfies the general requirement of 60-215(c) that 'the claim or defense asserted in the amended pleading arose out of the conduct, . . . set forth in the original pleading,' and if within the applicable period of limitations, the party brought in by amendment (a) has received such notice of the institution of the action-the notice need not be formal-that he would not be prejudiced in defending the action on the merits, and (b) knew or should have known that the action would have been brought against him initially and had there not been a mistake concerning the identity of the proper party.
4. To permite an amendment under K.S.A.1971 Supp. 60-215(a) and (c), in addition to the general requirement in 60-215(c), the new party, within the period of limitations, must receive such notice of the institution of the action that he will not be prejudiced in making his defense on the merits, and further that the new party knew or should have known that, but for a mistake concerning the identity of the proper party, he would have been brought into the proceedings earlier.
5. Under K.S.A.1971 Supp. 60-215(c) the application of the section, relating to an amendment changing a party against whom a claim is asserted, is not dependent upon proper service of summons, because informal notice complies with due process and is sufficient to bring into operation the relation back of the amendment.
6. Under the provisions of K.S.A. 60-209 when a party desires to raise an issue as to the legal existence of any party, or the capacity of any party to sue or be sued, he shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge. Failure of a party to comply with these provisions must be regarded as a waiver by the party of such defense.
James N. Snyder, of Snyder & Snyder, Leavenworth, argued the cause, and James N. Snyder, Jr., Leavenworth, was with him on the brief for appellant.
Charles D. Kugler, of Carson, Mahoney & Fields, Kansas City, argued the cause, and David W. Carson, J. W. Mahoney and John H. Fields, Kansas City, were with him on the brief for appellee.
This is an interlocutory appeal from a judgment of the trial court permitting the plaintiff to substitute a party defendant by amendment after the statute of limitations had run.
The issue on appeal requires a construction of K.S.A. 60-215(c) as amended by the Supreme Court (order dated July 17, 1969).
The facts are not in dispute. On May 25, 1967, Eva Marie Marr (plaintiff-appellee) was operating her Chevrolet automobile when it was involved in an intersection collision with a truck owned and operated by Geiger Ready-Mix Company, when that truck passed through a stop sign and struck the plaintiff's auto broadside. Suit was filed by the plaintiff against Geiger Ready-Mix Company on October 9, 1968. The Geiger Ready-Mix Company was then located at 1411 South Second Street, Leavenworth, Kansas. The petition alleged that the collision in question had occurred, that the plaintiff had suffered grievous injury as a result thereof, and that the truck was owned by Geiger Ready-Mix Company and operated by its agents and employees.
Summons was duly issued on October 9, 1968. The return of service of summons filed October 14, 1968, set out the summons had been served on the 9th day of October, 1968, by serving Bill Munson, general manager, who was in charge of the business office of the Geiger Ready-Mix Company. Bill Munson acknowledged receipt of the summons and did not refuse to accept service.
On the 25th day of October, 1968, the Geiger ready-Mix Company (defendant-appellant) filed its answer. The first paragraph of the answer contained a motion to dismiss because Missouri counsel had failed to associate with a Leavenworth County attorney. The second paragraph reads as follows:
'Defendant moves the Court for an Order dismissing said Petition because this Court has no jurisdiction thereof and because no summons was properly issued and served herein according to law.'
The third paragraph of the answer denied that the defendant was negligent in causing the accident and further asserted that the accident was due to the sole negligence of the plaintiff. It further set out the affirmative defense of last clear chance. Paragraph four contained a general denial.
Further court action did not take place until the 2nd day of June, 1969. During the interim period settlement negotiations were conducted between the Aetna Life Insurance Company, the defendant's insurer, and the plaintiff's counsel. As late as March 3, 1969, the defendant's insurance company made an offer of settlement. Plaintiff's counsel then received a letter dated June 2, 1969. (It will be noted this date is eight days after the two-year statute of limitations had run.) This letter notified the plaintiff that the motion to dismiss would be heard June 9, 1969, and on that date the defendant served personally upon the plaintiff's counsel the affidavit of E. W. Geiger, Jr., which asserted for the first time that Geiger Ready-Mix Company was a sole proprietorship owned and operated by E. W. Geiger, Jr. On the same date plaintiff moved the court for an order permitting her to amend her original petition by substituting the name of E. W. Geiger, Jr., d/b/a Geiger Ready-Mix Concrete Company, for the Geiger Ready-Mix Company under the provisions of K.S.A. 60-215(a) and (c).
The evidence introduced at the hearing on the plaintiff's motion showed that the police report filed in compliance with the Kansas Motor Vehicle Safety Responsibility Act set out the owner of the cement truck involved in the petition as being Geiger Ready-Mix Company, address 1411 South Second Street, Leavenworth, Kansas. The evidence also disclosed police photograph taken at the scene showed the truck with the name 'Geiger Ready-Mix Company' clearly written thereon.
The trial court sustained the defendant's motion to dismiss and a motion for rehearing was subsequently filed, as well as the plaintiff's notice of appeal.
On the 20th day of November, 1969, the motion for rehearing was heard and evidence introduced. The evidence disclosed the general manager of Geiger Ready-Mix Company received the summons and turned the same over to Mr. Geiger after noting that he had forwarded a copy to Mr. Geiger's insurance carrier. Mr. Munson testified the Geiger Ready-Mix Company was an alias or assumed name under which Mr. Geiger did business. Mr. Geiger affirmed Mr. Munson's testimony and further stated that he was well aware that the action had been filed. The trial court again sustained the defendant's position, the the plaintiff at the time undertook to perfect another appeal. In the meantime the plaintiff filed a motion for reconsideration based on the 1969 amendment to 60-215(c). The matter was taken under advisement by the court and on March 2, 1970, it set aside its previous judgment entered and granted the plaintiff's original motion to amend her original petition by changing the name of the defendant from Geiger Ready-Mix Company to E. W. Geiger, Jr., d/b/a Geiger Ready-Mix Concrete Company.
The trial court in reversing its position on the point said in its memorandum opinion:
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