St. Paul Fire & Marine Ins. Co. v. Spann

• Decision Date: 12 July 1960
• Docket Number: No. 38497,38497
• Citation: 355 P.2d 567
• Parties: SAINT PAUL FIRE AND MARINE INSURANCE COMPANY, a corporation, Plaintiff in Error, v. Orval, SPANN and Wanda C. Spann, a copartnership, d/b/a Spann Motor Company, and Donald Kelly, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 567

355 P.2d 567

1960 OK 167

SAINT PAUL FIRE AND MARINE INSURANCE COMPANY, a corporation Plaintiff in Error, v. Orval, SPANN and Wanda C. Spann, a copartnership, d/b/a Spann Motor Company, and Donald Kelly, Defendants in Error.

No. 38497.

Supreme Court of Oklahoma.

July 12, 1960.

Rehearing Denied Sept. 27, 1960.

Syllabus by the Court

Where a corporation has a legal or beneficial interest in a cause of action and is capable of bringing an action in its own name, but through mistake or inadvertence, brings it in the name of an individual, under Title 12 O.S.1951 § 317, an amendment substituting the real party in interest as plaintiff is permissible where the cause of action remains the same and defendants are deprived of no defense, and such amendment relates back to the commencement of the action and the fact that the time within which an original action could have been filed by the proper party has been barred by limitations furnishes no ground for refusing the amendment.

Appeal from the District Court of Pottawatomie County; J. Knox Byrum, Judge.

Action instituted in the name of Z. O. Edgin, insured, for damages sustained to Dodge truck. Saint Paul Fire and Marine Insurance Company, a corporation, was substituted as party plaintiff. From an order sustaining separate demurrers of defendants, the plaintiff appeals. Reversed and remanded with directions.

Busby, Stanfield, Deaton & West, Ada, for plaintiff in error.

Kerr, Lambert, Conn & Roberts, by R. Burl Harris, Ada, Goode & Henson, by John L. Goode, Shawnee, for defendants in error.

IRWIN, Justice.

On May 22, 1952, Z. O. Edgin owned a truck which was insured by Saint Paul Fire and Marine Insurance Company, a corporation, plaintiff herein. While the truck was in the joint car, custody, control and possession of defendants, Orval Spann and Wanda C. Spann, a copartnership, d/b/a Spann Motor Company, and Donald Kelly, it was destroyed by fire. The plaintiff paid Edgin for the loss sustained under the insurance policy and took a receipt and assignment of each and all claims and demands against all parties responsible, for the destruction of the truck.

On May 21, 1954, Z. O. Edgin, as plaintiff, commenced an action against the defendants for damages occasioned by loss of the truck. On April 23, 1957, and prior to answer by defendants, an amended petition was filed substituting Z. O. Edgin, for the use and benefit of the Saint Paul Fire and Marine Insurance Company, as a party plaintiff. On June 19, 1958, after securing leave of Court, a second amended petition was filed substituting Saint Paul Fire and Marine Insurance Company, a corporation, as party plaintiff. To this amended petition the defendants filed separate demurrers alleging a new cause of action and that the same was barred by the statute of limitations which were sustained by the trial court. From the order sustaining the demurrers, the plaintiff has perfected this appeal. The parties will be referred to as they appeared in the trial court.

Contentions

Plaintiff contends the suit was commenced in the name of Z. O. Edgin, plaintiff's insured, within the period allowed by the statute of limitations; that the substitution of this plaintiff for Z. O. Edgin, as allowed by the trial court, related back to the commencement of the action; that the amendment to the petition states no new cause of action, but merely states, in slightly different form, the cause of action stated in the original petition.

The defendants contend that Z. O. Edgin, having been fully paid for his loss and having assigned his claim to plaintiff, had no cause of action against the defendants at the time he filed his petition; that the plaintiff herein was the real party in interest and the filing of the action by Edgin who had no cause of action will not toll the statute of limitations and the substitution of the real party in interest does not relate back so as to avoid the statute of limitations.

Conclusion

Defendants rely on Title 12 O.S.1951 § 221, which provides:

'Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in this article but this section shall not be deemed to authorize the assignment of a thing in action, not arising out of contract.'

This statute, however, in the instant case, must be considered in conjunction with Title 12 O.S.1951 § 317, which provides:

'The court, may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding by adding or striking out the name of any party, or correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or conform the pleading or proceeding to the facts proved, when such amendment does not change substantially the claim or defense; and when any proceeding fails to conform, in any respect, to the provisions of this code, the court may permit the same to be made conformable thereto by amendment.'

In considering this statute, we said in the case of Mostenbocker v. Shawnee Gas & Electric Co., 49 Okl. 304, 152 P. 82, 85, L.R.A.1916B, 910 '* * * but, keeping in mind the purpose of allowing amendments, and the liberal rule which is evidently prescribed by the statute hereinbefore quoted, courts should be inclined to disregard subleties and answer technical objections to the sufficiency of a pleading in an honest effort to determine the real issues on their merits, and to try and do substantial justice to the litigants before them; and, when this rule is applied, it serves as a complete answer to the contention that a new cause of action is pleaded, to which the statute of limitations may be successfully urged, when a new pleading is filed, curing a defect in the original pleadings, which might have been waived under the terms of our statute, unless urged in the manner pointed out therein. It appears to us that the Legislature has enjoined upon the courts of this state by positive enactment a liberal rule of procedure, authorizing amendments in the furtherance of justice, when same do not substantially change the claim or defense, and we do not think we ought to adopt a policy that would defeat substantial justice by indulging in fine spun theories woven around technical rules of procedure or defects in pleadings that go to the form rather than the substance; * * *'.

We have consistently followed the policy outlined above and have always given a liberal construction to the statute. In Missouri, K. & T. Ry. Co. v. Lenahan, 68 Okl. 73, 171 P. 455, we held where a wife sued personally for the wrongful death of her husband, she could amend after the limitation period so as to sue in her legal capacity as a personal representative of decedent's estate. We said there was no difference in the original and amended petition and no miscarriage of justice resulted. In Haught v. Continental Oil Company, 192 Okl. 345, 136 P.2d 691, a husband brought an action for damages to real property jointly owned by him and his wife. After a demurrer was sustained on the ground that the wife was a necessary party, the husband dismissed his action without prejudice by permission of the Court....