Smith v. Baule , 1977 Iowa Sup. LEXIS 977 ( 1977 )

MOORE, Chief Justice.

Plaintiffs appealed trial court’s dismissal of their wrongful death action as to defendant, Illinois Central Gulf Railroad, a Delaware corporation. They contend their amendment making said corporation a defendant should have related back to the date the original petition was filed. Trial court disagreed and held the action against the corporation was barred by Code section 614.1(2), the two-year statute of limitations. We agree and affirm.

On February 11, 1976, plaintiffs filed a petition alleging in pertinent part that plaintiffs’ decedent was killed February 19, 1974 in an automobile accident caused by the negligence of multiple named defendants. Plaintiffs alleged defendant “Illinois Central Railroad, an Illinois Corporation” was negligent in dumping slush and water upon a highway without warning to travelers.

The sheriffs return of service of original notice on defendants included, “I further certify that on the same day [February 13, 1976] I served the same on Illinois Central R. R. Co., and Illinois Corporation, by delivering a copy thereof to Thomas Flynn, Agent for said defendant, in the City of Dubuque, Julien Township, Dubuque County, State of Iowa.”

On March 4, 1976 Illinois' Central Railroad filed a special appearance asserting the district court lacked jurisdiction because this corporate entity had been dissolved pursuant to law and did not exist either at the time of the accident or subsequently thereto. The trial court sustained the special appearance on March 30. No appeal has been taken from that order.

On March 18, plaintiffs amended their petition providing in relevant part:

“1. The Caption should be amended as follows:

“a. Illinois Central Industries, a Delaware Corporation and Illinois Central R. R. Co., an Illinois Corporation shall be deleted as Defendants.

“b. Illinois Central Gulf Railroad, A Delaware Corporation should be added as a Defendant.”

Additionally the amendment substituted as a new defendant, Illinois Central Gulf Railroad for defendants Illinois Central Industries, Inc., and Illinois Central R. R. Co., throughout the petition. For example, plaintiffs in paragraph 8 of their amendment stated:

“In Paragraph 16 of Counts I and II substitute Defendant, Illinois Central Gulf Railroad for Defendants, Illinois Central Industries, Inc., and Illinois Central R. R. Co.”

On May 7, 1976 plaintiffs served notice, with petition and amendment attached, of their action against Illinois Central Gulf Railroad. Service was made on J. W. Dodge, division superintendent, at Waterloo, Iowa.

On May 27, 1976 Illinois Central Gulf Railroad filed a motion to dismiss plaintiffs’ petition on the ground:

“1. That the Petition as amended fails to state a claim upon which the relief sought can be granted for the reason that no action was commenced against this defendant within the applicable period of limitations as provided in 1975 Code of Iowa, Section 614.1(2) in that on the face of the pleadings filed in this cause it affirmatively shows that this defendant was not so named as a defendant until the filing of plaintiffs’ ‘First Amendment to Petition’ on March 18, 1976.”

In resistance plaintiffs asserted their amendment was filed to correct a misnomer in the original petition and relates back to the date of filing, February 11, 1976. They pointed out a merger of Illinois Central Railroad with Illinois Central Gulf Railroad took place on August 10, 1972. The record reveals no evidence or contention that Thomas Flynn was ever an agent or employee of Illinois Central Gulf Railroad, the Delaware corporation.

On June 21,1976 the trial court sustained the motion to dismiss, stating, “It appears to be the better rule that the amendment does not relate back * * * .”

Plaintiffs have appealed from this ruling. As in the trial court they argue “the plaintiffs’ amendment to petition filed after the statute of limitations had run, served only to correct a misnomer in the original petition and relates back to the date of the filing of the original petition.”

Illinois Central Gulf Corporation, the Delaware corporation, maintains it was not named a defendant until plaintiffs amended their petition after the running of the statute of limitations and therefore said amendment should not be construed as relating back to the date the original petition was filed.

I. Plaintiffs-appellants cite and rely on three cases: Hickman v. Hygrade Packing Company, Iowa, 185 N.W.2d 801; Thune v. Hokah Cheese Company, 260 Iowa 347, 149 N.W.2d 176 and Grooms v. Greyhound Corporation, 6 Cir., 287 F.2d 95.

In Hickman, where we reversed the trial court, we held that misnomer in notice of action naming “Hygrade Packing Company, Postville, Iowa” as defendant did not bring “Hygrade Food Products Corporation” into court, and that the notice was void and could not be made valid by amendment.

In Hickman we point out Thune dealt with a different kind of situation. In Thune defendant was sued and served under its trade name rather than in the name of the individual owner, Willard Potter. Potter operated his business and his vehicle referred to in plaintiffs’ petition was registered in his trade name, Hokah Cheese Company. We held the real defendant was actually before the court at all times under his assumed fictitious name and approved amendment correcting the misnomer. We there noted the case did not involve substitution of one party for another after the statute of limitations had run.

The holding in Grooms v. Greyhound Corporation, 6 Cir., 287 F.2d 95, is premised upon a specific and unique provision of the Ohio Rules of Civil Procedure which provide that when an attempt to commence an action is followed by good service within 60 days, the action is deemed to have been timely commenced even though the statute of limitations has run between the date of the summons and the date of actual service. We have no such rule, statute or holding. Here actual service was made almost three months after filing of plaintiffs’ petition.

II. In addition to arguing this is not a case involving correction of a misnomer, defendant, Illinois Central Gulf Railroad, the Delaware corporation, asserts the amendment substitutes one corporation for another after running of the statute of limitations and therefore the trial court was correct in sustaining its motion to dismiss. Much has been written in this area of the law.

After citing and quoting 8 A.L.R.2d, section 81, page 166 and a rather thorough analysis of the prime authorities we state in Shellhorn v. Wiiliams, 244 Iowa 908, 918, 58 N.W.2d 361, 367:

“In the case before us for review entirely new parties were substituted. There was no misnomer or defect in the description or characterization of the defendant but an entire change of parties. We hold this is not proper, particularly after the statute of limitations has run.”

The annotation in 8 A.L.R.2d, section 81, page 166 states:

“ ‘ * * * whether an amendment of process or pleading, or both will be allowed which changes the description or characterization of a party after the statute of limitations has run, from a corporation to an individual, copartnership, or other association * * * seems to depend upon whether the misdescription or mischaracterization is interpreted as merely a misnomer or defect in the description or characterization, or whether it is deemed a substitution or entire change of parties; in the former case an amendment will be held to relate back to the commencement of the action, while in the latter the amendment will be held to amount to institution of a new action.

“ ‘ * * * where an action is brought against a corporation whereas it should have been brought against a partnership, or vice versa, an amendment substituting the proper party defendant after the statute of limitations has run is generally held to be vulnerable to a plea of the statute. And the same rule applies in the case of the substitution of individuals as defendants for the partnership or corporation, or vice versa.’ ”

In 51 Am.Jur.2d, Limitation of Actions, section 294, page 805, the editor writes:

“If the substitution of a corporation as party defendant for another corporation, after the statute of limitations has run, amounts to no more than the rectification of a misnomer, the statute of limitations is not a bar; where, however, the plaintiff sued the wrong party, the mistake cannot be remedied after the period of limitations has elapsed any more than in the case where a wrong individual has been sued. Thus, there are many cases in which it has been held that where an action is brought against a corporation, its commencement within the limitation period is ineffective to stop the running of the statute of limitations against another corporation substituted for it after the statute has run. * * *

The general applicable principles are thus stated in 54 C.J.S. Limitation of Actions, section 277b, page 317:

“For limitation purposes, an amendment substituting a new defendant is regarded as the commencement of a new action or proceeding against such defendant, and does not relate back to the commencement of the original action, where a new cause of action is set up by the amendment, or the- original defendant was dead or otherwise nonexistent at the time of the attempted commencement of the action and therefore no action was commenced against anyone prior to the amendment, or the suit has abated as to the original sole defendant, or the case is one of a mistake as to the identity, rather than a misnomer, of the person liable. * * *(Emphasis added.)

See also 4 Wright and Miller, Federal Practice and Procedure, section 1181.

The facts and stated legal principles in Strauss v. Rex, D.C.Pa., 191 F.Supp. 128, 129 seem particularly applicable here:

“Despite the tendency in our federal courts toward extreme liberality in allowing amendments under Rules 4(h) and 15(a), F.R.Civ.P., 28 U.S.C.A., the court is of the opinion that the effect of the amendment is to substitute for defendant an entirely new party. Unquestionably, plaintiffs attempted to bring suit against the owner of the Howard Johnson Restaurant in Uniontown. However, they named the wrong defendant. Ownership of the particular restaurant in question was not in the named corporate defendant, but in an individual and his wife. Clearly, this is not a case in which a plaintiff seeks to correct a misnomer where the proper party already is in court. See Sechrist v. Palshook, D.C.M.D. Pa.1951, 97 F.Supp. 505. Neither of the individual defendants is in court. To permit this amendment to relate back to the original complaint would deprive the substituted defendants of their defense of the statute of limitations. Davis v. L. L. Cohen & Company, Inc., 1925, 268 U.S. 638, 45 S.Ct. 633, 69 L.Ed. 1129; Jacobsen v. United States, D.C.E.D.Pa.1958, 160 F.Supp. 491; Lomax v. United States, D.C.E.D.Pa.1957, 155 F.Supp. 354; Kernel v. Rackmill, D.C.M.D.Pa.1953, 111 F.Supp. 150; Sanders v. Metzger, D.C.E.D.Pa.1946, 66 F.Supp. 262.

“The court is aware of the great hardship which will result from the granting of defendant’s motion. Nevertheless, this is a ,serious risk which must be appreciated by a plaintiff who delays until the period of limitations has almost run before commencing his action.”

In Kerner v. Rackmill, M.D.Pa., 111 F.Supp. 150, 151, the court states:

“ * * *, if the effect of the amendment is to substitute for the defendant a new party, or add another party, such amendment amounts to a new and independent cause of action and cannot be permitted when the statute of limitations has run. (Citations). * * *

In Munetz v. Eaton Yale and Towne, Inc., E.D.Pa., 57 F.R.D. 476, it was held that when the effect of an amendment of the caption of the complaint or summons to correct the party named is to bring before the court for the first time a completely different entity that had not had notice of suit, the amendment could not be allowed to relate back and avoid the statute of limitations as to the new defendant.

See also Thomas v. Cactus Drilling Corporation of Texas, Tex.Civ.App., 405 S.W.2d 214; Vari v. Food Fair Stores, New Castle, Inc., 57 Del. 257, 199 A.2d 116.

III. As pointed out in Patten v. City of Waterloo, Iowa, 260 N.W.2d 840 (1977) rule 59.1, Rules of Civil Procedure, effective July 1, 1975, is identical to rule 4 (h), Federal Rules of Civil Procedure. Thus we are committed to liberal construction of our rules of civil procedure to insure resolutions of disputes on their merits. See 62 Iowa L.Rev. 192, 229-231. However, at page 230 the author writes:

“ * * *, when the amendment has sought to add a new party after the limitations period has run, it is ordinarily rejected, on the premise that it amounts to an independent cause of action.”

IV. The record before us reveals plaintiffs simply made a mistake in identity of the railroad they intended to sue. It was nonexistent and of course valid service could not be made on it. Jurisdiction of defendant, Illinois Central Gulf Railroad, the Delaware corporation, was first obtained after the amendment making it a defendant. The statute of limitations had run.

We note plaintiffs’ present appeal counsel entered this case after it was prepared and assigned for oral submission to this court.

This is not a case of correction of a misnomer but rather the substitution of a new party after the statute of limitations had run. The ruling of the trial court was correct.

AFFIRMED.

MASON, RAWLINGS, LeGRAND and REES, JJ., concur. UHLENHOPP, HARRIS and McCOR-MICK, JJ., dissent. REYNOLDSON, J., takes no part.