Wallis v. United States

• Decision Date: 14 January 1952
• Docket Number: Civ. No. 239.
• Citation: 102 F. Supp. 211
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: WALLIS et al. v. UNITED STATES.

102 F. Supp. 211

WALLIS et al. v. UNITED STATES.

Civ. No. 239.

United States District Court E. D. North Carolina, Fayetteville Division.

January 14, 1952.

Terry Sanford, Fayetteville, N. C., for plaintiff.

Charles P. Green, U. S. Atty., Logan D. Howell, Asst. U. S. Atty., Raleigh, N. C., for defendant.

GILLIAM, District Judge.

This action is brought under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671 et seq., to recover the sum of $1,153.00 alleged to be the total loss of plaintiff Mrs. Severn T. Wallis, caused by defendant's negligence in its storage of certain furniture belonging to her. The damage was discovered on November 8, 1947, and the suit was commenced in the name of Mrs. Wallis on October 29, 1948, subsequent to Mrs. Wallis' having been fully compensated for her loss by her insurance carrier, the plaintiff Security Company of New Haven.

On August 24, 1950, the defendant secured an order making the Security Insurance Company of New Haven a party plaintiff. On September 27, 1951, the Security Insurance Company of New Haven entered the suit by means of an amended complaint. And on October 9, 1951, the defendant filed its amendatory motion to dismiss the action with respect to the Security Insurance Company of New Haven on the ground that the statute of limitations had run prior to the filing of the amended complaint.

From the above facts it is clear that the plaintiff Security Insurance Company of New Haven is the real party in interest, and Mrs. Wallis is merely a nominal plaintiff. My conclusion is that the addition of the said real party to the nominal plaintiff subsequent to the running of the statute of limitations relates back to the commencement of the action and that, therefore, the action is not barred by the statute of limitations.

The rationale of "relation back" is well expressed in McDonald v. Nebraska, 8 Cir., 1900, 101 F. 171, 178. "A defendant has an undoubted right to insist that the person entitled to recover on a cause of action set forth in a petition shall be brought on the record as the plaintiff in the action, to the end that he shall not be compelled to respond twice to the same demand; and that the one suit shall bar all others for the same cause of action. But it has come to be the settled law that where, either by mistake of law or fact, a suit is brought in the name of a wrong party, the real party in interest, entitled to sue upon the cause of action declared on, may be substituted as plaintiff, and the defendant derives no benefit whatever from such mistake; but the substitution of the name of the proper plaintiff has relation to the commencement of the suit, and the same legal effect as if the suit had been originally commenced in the name of the proper plaintiff."

The above rationale is peculiarly suited to the circumstances of the instant case. This action was commenced by the subrogee insurance company in the name of Mrs. Wallis in October of 1948, and at that time there was a decided conflict of decisions in the several federal circuits as to whether or not a subrogee could sue the United States under the Federal Tort Claims Act. The insurance company was proceeding along the line of least resistance, for in prior cases the government had resisted suits in the name of the subrogee on the basis of the Anti-Assignment statute.

More than a year subsequent to the bringing of this action the United States Supreme Court granted certiorari for the express purpose of resolving the aforesaid split of decisions in the federal circuits, and the court held there, United States v. Ætna Casualty & Surety Co., 1949, 338 U.S. 366, 70 S.Ct. 207, 94 L.Ed. 171, that a subrogee that had paid the entire loss of the insured was the...