Ross v. Philip Morris Company

• Decision Date: 24 April 1958
• Docket Number: No. 9494.,9494.
• Citation: 164 F. Supp. 683
• Parties: John T. ROSS, Plaintiff, v. PHILIP MORRIS COMPANY, Ltd., a corporation, Defendant.
• Court: U.S. District Court — Western District of Missouri

164 F. Supp. 683

John T. ROSS, Plaintiff, v. PHILIP MORRIS COMPANY, Ltd., a corporation, Defendant.

No. 9494.

United States District Court W. D. Missouri, W. D.

April 24, 1958.

Rogers, Field, Gentry & Jackson, Charles L. Carr, Kansas City, Mo., for plaintiff.

Watson, Ess, Marshall & Enggas, James C. Wilson, John W. Oliver, Kansas City, Mo., for defendant.

RIDGE, District Judge.

This action, commenced November 23, 1954, in a court of the State of Missouri, was thereafter duly removed to this Court. The original complaint, in a single count, set forth a claim for damages for personal injuries allegedly accruing to plaintiff from a product manufactured by defendant. Various theories of recovery (negligence, willful misrepresentation, breach of warranty, and violation of certain State statutes) were alleged for recovery of actual and punitive damages for the injury claimed. Because that complaint did not comport with modern concepts of pleading, as allowed either by the laws of the State of Missouri, or as conceived in the Federal Rules of Civil Procedure (Rule 8), 28 U.S.C.A. plaintiff was required to re-plead his claim in accordance with federal practice. Rule 8(c), F.R.Civ.P. February 16, 1955, plaintiff filed an amended complaint. That complaint was stricken (on May 12, 1955) on motion of defendant, because it did not comply with the mandate of Rule 8(a), F.R.Civ.P., in that it contained infirmities as a pleading that were evident in the original complaint. Leave was granted plaintiff to file a second amended complaint. Such complaint was subsequently filed on May 18, 1955. In his second amended complaint plaintiff premised his claim against defendant solely on the theory of breach of implied warranty, in that cigarettes manufactured and sold by defendant were unwholesome and not fit for human consumption, because they allegedly contained unwholesome, poisonous, deleterious, irritating, harmful and injurious substances and ingredients. To that complaint, defendant joined issue by answer.

Thereafter, this action was scheduled for pre-trial conference on February 15, 1956. Because of illness of counsel for plaintiff, such conference was postponed indefinitely by agreement of parties, with consent of the Court. It was then generally understood that because of the serious nature of the illness of plaintiff's counsel, new and other counsel would be required to enter their appearance for plaintiff, if this case was to be further prosecuted. February 27, 1957, plaintiff's original counsel informed the Court that he had made arrangements with another law firm "to take over and handle" this case. It was not, however, until October 25, 1957, that such newly-retained counsel formally entered their appearance for plaintiff and that, by filing a "third amended complaint" in three counts, with permission of the Court. In that amended complaint plaintiff sets forth, in count one, a claim for breach of implied warranty; in count two, a claim in tort for negligence; and, in count three, a claim for fraud and deceit; all as a result of the single injury claimed as arising out of the same conduct, transaction, or occurrence as was set forth in his original complaint. The allegations contained in each count of plaintiff's third amended complaint may be read on plaintiff's original complaint, when the latter is liberally construed.

Defendant has now filed motion to set aside the order granting leave to plaintiff to file such "third amended complaint" on the grounds, (1) the order was obtained ex parte, without prior notice to it; (2) counts two and three therein are barred by limitations; and (3) it is not in the interest of justice that plaintiff now be allowed to file a third amended complaint, three years after the filing of the original complaint and two years and five months after the issues in this case were settled by defendant's answer to plaintiff's second amended complaint.

Tersely stated, defendant's contention in respect to counts two and three of the third amended complaint is: that it is not in the interest of justice for the Court now to permit plaintiff to assert a claim against it on the legal theories set forth in such counts, because those matters were abandoned by plaintiff when he filed his second amended complaint; that since such abandonment the controlling Missouri statute of limitation (Section 516.120, V.A.M.S.) has run on plaintiff's cause of action; hence, plaintiff now has no legal right to reinstate any claim against defendant on the theory of claims set forth in said counts; and, defendant will be prejudiced if the third amended complaint is allowed to stand. The only prejudice attempted to be established by defendant is that which defendant asserts it has a legal right to claim now as a bar, by way of limitation. This is based solely on the theory that counts two and three of the third amended complaint set up new and separate causes of action against it that were not commenced within the period prescribed by the Missouri statute of limitation supra.

As an alternative, in the event the above-mentioned motion is denied, defendant has moved for summary judgment on each count of the third amended complaint. The premise of that motion as to count one is that plaintiff, as a remote vendee of goods manufactured by defendant, cannot recover from it on the theory of breach of implied warranty, because privity of contract is essential to the assertion of such a claim under Missouri case law, and no such privity can be legally established by plaintiff; —as to counts two and three, defendant claims right to summary judgment by way of bar by limitation, the same as contended in regard to its motion to set aside the leave order supra.

Although the parties have filed voluminous briefs in respect to the above matters, (plaintiff's briefs, 117 pages; defendant's briefs, 64 pages) we are not constrained to follow them in all the ramifications of their arguments and contentions. As to defendant's motion to set aside the order granting leave to plaintiff to file a third amended complaint, it is sufficient to say that if defendant's motion for summary judgment is well founded no prejudice can possibly ensue to defendant from such action of the Court. The grounds asserted by defendant for setting aside that order are the same as those relied on by it for summary judgment in its favor. We prefer to consider and determine that matter under the latter motion.

As a reason for granting leave to plaintiff on ex parte presentation, we merely state that as a consequence of the serious illness that prevented original counsel for plaintiff from further prosecuting this action, the Court perceived, as it believed all counsel for defendant did likewise, that newly-retained counsel would recast the pleadings in this case before further pre-trial conference would be held herein. Under the circumstances, the Court exercised its discretion, in the interest of justice, and granted leave to plaintiff accordingly.

A proffered amendment to a complaint should not be denied on the ground that it introduces a new cause of action which, but for Rule 15(c), F.R.Civ.P., would be barred by limitations. The proper practice is to allow an amendment to be made, if otherwise proper, and leave the question of relation back for consideration after defendant pleads the defense of limitations. Copeland Motor Co. v. General Motors Corp., 5 Cir., 1952, 199 F.2d 566.

Defendant's motion to set aside order granting leave to file third amended complaint is accordingly overruled.

Motion for Summary Judgment

We shall first consider defendant's motion for summary judgment as addressed to counts two and three of the third amended complaint. If the doctrine of Rule 15(c) of the Federal Rules of Civil Procedure, that:

"Whenever the claim or defense asserted in (an) amended pleading (arises) 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."

is applicable to the theory of claims set forth in counts two and three of plaintiff's third amended complaint, then manifestly defendant's motion for summary judgment in respect to those two counts is without merit. Absent bar by limitation, the issues of fact thereby presented cannot be adjudicated on such a motion.

Many pages of the parties' briefs are devoted to the proposition as to whether the propriety and legal effect of the amendments made in plaintiff's third amended complaint should be determined pursuant to the Federal Rules of Civil Procedure, or by Missouri law. We shall not discuss the rulings and applicability of the numerous cases cited by them in respect to that proposition. It is sufficient to say that we recognize that the limitation period fixed, and as applied, by the substantive law of the State of Missouri is here applicable. Guaranty Trust Co. of New York v. York, 1945, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079; Ragan v. Merchants Transfer & Warehouse Co., 1949, 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520. We are bound to enforce that law, in diversity cases, as we find it; but, as the Supreme Court said, in Levinson v. Deupree, 345 U.S. 648, 652, 73 S.Ct. 914, 916, 97 L.Ed. 1319, we are "not bound beyond that to strive for uniformity of results in procedural niceties with the courts" of the State of Missouri. "Even in diversity cases, when `a right is enforceable in a federal court as well as in a State court,' and the federal court sits as `another court of the State,' we have recognized that `the forms and mode of enforcing the right may at times, naturally enough, vary because the two judicial systems are not identic.'" In other words, the mechanics by which State substantive law may be utilized in the Federal Courts are matters of procedure and governed by the Federal Rules of Civil Procedure. Cf. Kincheloe v. Farmer, 7 Cir., 1954, 214 F.2d 604, 605. As...