Williams v. Pennsylvania R. Co.

• Decision Date: 22 June 1950
• Docket Number: Civ. A. No. 1169.
• Parties: WILLIAMS v. PENNSYLVANIA R. CO. et al.
• Court: U.S. District Court — District of Delaware

91 F. Supp. 652

WILLIAMS v. PENNSYLVANIA R. CO. et al.

Civ. A. No. 1169.

United States District Court D. Delaware.

June 22, 1950.

H. Albert Young, of Wilmington, Del., for plaintiff.

William Prickett, of Wilmington, Del., for defendants E. J. Lavino & Company, Mayor and Council of Wilmington, Charles B. Owens, Ralph B. Richardson, Henry P. Scott, Jr., members of the Board of Harbor Commissioners, and Edmund Winston Richardson, manager.

David F. Anderson and James L. Latchum (Southerland, Berl & Potter) of Wilmington, Del., for Pennsylvania R. Co.

RODNEY, District Judge.

This action is before the court upon a motion of plaintiff for leave to amend the complaint so that wherever the name "E. J. Lavino and Company" appears it will read "Lavino Shipping Company."

The cause of action in this case stems from an accident in which the plaintiff was injured and which took place on March 22, 1948. It is alleged that plaintiff was working at the Marine Terminal on that day and that a cargo of ilmenite was then being discharged from the ship William Allen. The accident happened when a gantry crane which was being operated on the dock ran over the plaintiff.

One of the parties originally named as a defendant was "E. J. Lavino and Company," which was alleged in the complaint to have "operated a stevedore company engaged in the business of loading and unloading cargoes from ships anchored at the Marine Terminal, Wilmington, Delaware," at the times mentioned in the complaint. It is further alleged in the complaint that at the time and place in question gantry cranes operated by the employees of defendants "E. J. Lavino and Company, and/or Mayor and Council of Wilmington, and/or the defendants, the Board of Harbor Commissioners" were engaged in unloading The William Allen, and that one of such gantry cranes ran over the plaintiff.

Affidavits have been filed by the parties and some oral testimony has been taken in connection with this motion. From this it clearly appears that the stevedore company which was engaged in the unloading of the William Allen on March 22, 1948, was the "Lavino Shipping Company," and that the "Lavino Shipping Company" and "E. J. Lavino and Company" are two separate and distinct corporations of the State of Delaware. Both corporations are actively engaged in business, but E. J. Lavino and Company is not engaged in the stevedoring business. Both corporations have the same resident agent in Delaware, and both corporations have their principal places of business at the same address in Philadelphia, Pa., and have the same telephone number. Both corporations have the same president; the other officers are substantially the same and the directors are identical. Nothing appears as to the identity of the stockholders.

When the present action was instituted, service of summons was made on the resident agent of E. J. Lavino and Company, which is also the resident agent of Lavino Shipping Company. It is not seriously questioned that the officers of E. J. Lavino and Company and of Lavino Shipping Company, who were largely identical, received notice of the suit. The evidence before the court shows that they realized that the Lavino defendant had been wrongly named and that the mistake was brought to the attention of the representative of their insurance carrier and that the appearance and pleadings in this case were all made in the light of and with knowledge of the error.

E. J. Lavino and Company appeared in the action by counsel and filed its answer. In the answer it denied the allegations that it had been operating a stevedore company at the Wilmington Marine Terminal and that its employees and the employees of the other defendants mentioned above had been operating the gantry cranes. It denied liability in general and by way of further answer set up the defense of contributory negligence.

On February 12, 1949, plaintiff moved for leave to amend its complaint by adding a count for the purpose of setting up a claim against the defendants, E. J. Lavino and Company, the Mayor and Council of Wilmington, the Board of Harbor Commissioners, and Edmund Winston Richardson, the manager of the Marine Terminal, based upon the theory of "res ipsa loquitur." An order granting leave to file the amendment was entered by the court on October 5, 1949. These defendants, including E. J. Lavino and Company, subsequently moved for judgment upon that part of the amended complaint presenting the question of the applicability of the doctrine of "res ipsa loquitur." Arguments on the motion were heard and the court ruled in favor of the moving defendants. D.C., 90 F.Supp. 69.

The case was then set down for trial, but shortly before the date assigned for the trial, that is to say in May, 1950, the present motion to amend the complaint was filed. Under the Delaware statute the period of limitations in a personal injury case, such as this, expires in one year.¹ There is no suggestion that this is not the applicable statute of limitations.

Plaintiff contends that it should be permitted to amend its complaint in the proposed manner, despite the fact that the statute of limitations has run. He argues that the proposed amendment will not bring a new party before the court but will merely correct a misnomer of a party which is, in fact, already before the court and which has had complete notice and knowledge of the suit from its inception, and of the claim of the plaintiff prior to the institution of the suit. The plaintiff does not suggest that he was led to name E. J. Lavino and Company instead of Lavino Shipping Company as a party defendant through any misrepresentations of Lavino or its agents, but he does contend that he knew of only one Lavino corporation and that he was lulled into a false sense of security by reason of the actions of Lavino and by the nature of Lavino's pleadings, more particularly, the assertion of the defense of contributory negligence and by Lavino's participation in the motion for judgment with respect to the added count of the amended complaint. The plaintiff asserts that he only discovered his mistake a very short time before he filed the present motion and that he has acted with the requisite promptness in seeking to rectify his error.

Lavino's contention, briefly, is that the plaintiff, through no misrepresentation of the defendants, has brought suit against the wrong party and that an amendment to bring in a new party defendant after the expiration of the statute of limitations should not be permitted.

The basic question before the court is whether the proposed amendment corrects a misnomer or whether it brings in a new party defendant. If the amendment is granted and its effect is merely to correct a misnomer, there is no doubt that the amendment would relate back in time to the date of the original complaint.² But if its effect is to make a new party to the suit, the amendment would not relate back and the statute of limitations would bar the action as to that party.³ Under the latter circumstances it is, at the least, questionable whether the amendment would be allowed in the first instance.⁴

Both parties have cited to the court an extensive annotation which appears in 8 A.L.R.2d 80, dealing in part with the problem which is presented by this motion. An examination of that annotation and of the many cases cited by the parties makes it clear that the courts have frequently reached different conclusions upon substantially similar factual bases. These authorities show that the courts have in many instances taken into consideration not only the technical effect of the amendment, but also the circumstances connected with the erroneous naming of the corporate defendant and the extent of the prejudice, if any, which may result to the real party defendant if the amendment is allowed.

In the present case there is no question that the stevedoring company which was engaged in the unloading of The William Allen was the Lavino Shipping Company and not E. J. Lavino and Company. It is asserted and not denied that the officers of Lavino Shipping Company knew of the plaintiff's possible claim against it from the first. Service of summons was upon the resident agent, which was the resident agent of both corporations alike, and the corporate officers and the representatives of the corporations were aware of the plaintiff's mistake in naming E. J. Lavino and Company as a defendant. Despite this knowledge, E. J. Lavino and Company filed an answer not only denying liability, but also asserting the affirmative defense of contributory negligence. It also participated in further preliminary proceedings with which, as a complete stranger to the incident which gave rise to the plaintiff's claim, it could have had no concern. Under these circumstances, I am of the opinion that the stevedoring corporation, Lavino Shipping Company, which the plaintiff intended to sue, is in fact before the court, and that the effect of the proposed amendment is merely to correct a misnomer. This is not a matter of piercing the corporate veil, but of looking at the realties of the case. The defendant which the plaintiff intended to sue is in reality before the court.

If the plaintiff, being uncertain of the exact name of the defendant, had simply sued the "Lavino Company" and subsequently discovered that the word "Shipping" had been omitted from the correct name, it is scarcely to be doubted that an amendment would have been allowed correcting the misnomer. The mere fact that the plaintiff erroneously gave to the supposed defendant a name which was the name of an existing corporation cannot affect this conclusion when regard is had to all the circumstances of the case.

The material facts may be epitomized as follows. The plaintiff claims to have been injured by the negligence of Lavino Company, a stevedoring company; only one Lavino Company was known to the plaintiff as concerned with the subject matter; suit was started against a...