Consolidated Underwriters v. Adams ( 1936 )

I cannot assent to the majority opinion in this case. In the final analysis, the majority holding is grounded solely upon the assumption that the filing of plaintiff's original petition wherein the defendant was incorrectly named was not the beginning of a suit against Consolidated Underwriters, the insurance carrier, to set aside the award of the Industrial Accident Board, and, hence, the amended petition in which the insurance carrier was correctly named was the beginning of a suit "against an entirely different party defendant." To my way of thinking, such holding is clearly wrong. It should be borne in mind that the appellant was, in fact, the liability insurance carrier for the Kirby Lumber Company; that claim had been duly made to it and some payments made by it to the appellee for the injury received by him in the course of his employment; that the matter had been submitted to the Industrial Accident Board where, presumably, the appellant appeared and contested the claim; that the Industrial Accident Board had made an award allowing the appellee compensation for partial incapacity only; that notice of dissatisfaction and intention to file suit to set aside the award had been given appellant in the proper time; that the suit in which the insurer was incorrectly named was filed within the 20 days, and that citation, accompanied by certified copy of the petition, was actually served upon the agent of the appellant, the very same agent upon whom the second citation was served. There is no showing, nor any contention, that there is any such concern as "Consolidated Casualty Underwriters." It cannot be questioned that the appellant knew by the service of the original citation upon it that the appellee intended to sue it. Therefore, the plaintiff did not sue the wrong defendant. Instead, he sued the right defendant by the wrong name. The error in name was a mere inadvertent misnomer, which might be corrected by amendment, the same as any other technical error of pleading.

The long-established and well-recognized rule is thus stated by Mr. Freeman in his work on Judgments, vol. 1, § 154, p. 279, and quoted with approval by Justice Greenwood in Abilene Independent Telephone Telegraph Co. v. Williams, 111 Tex. 102, 229 S.W. 847, 848: "The weight of authority is, that if the writ is served on the party, by a wrong name, intended to be sued, and he fails to appear and plead the misnomer in abatement, and suffers judgment to be obtained, he is concluded, and in all future litigation may be connected with the suit or judgment by proper averments; and when such averments are made and proved, the party intended to be named in the judgment is affected as though he were properly named therein." And the misnomer of a corporation has no different effect than the misnomer of an individual defendant. Abilene Independent Telephone Telegraph Co. v. Williams, supra; Wieser v. Thompson Grocery Co. (Tex. Civ. App.) 8 S.W.2d 1100; Arcola Sugar Mills Co. v. Doherty (Tex. Civ. App.) 254 S.W. 650. The Texas authorities seem to agree that where a defendant is sued by a wrong name but is actually served with citation and thus put on notice that he is the person intended to be sued, the misnomer is a mere matter of abatement on the proper plea, and if he fails to appear and urge the misnomer he is bound by the judgment. In addition to the above-cited authorities, see the following: Anderson v. Zorn, 62 Tex. Civ. App. 547.131 S.W. 835; McGhee v. Rornatka, 92 Tex. 38, 45 S.W. 552; Whittinghill v. Oliver (Tex. Civ. App.) 38 S.W.2d 896, 897.

In this case the defendant might have filed a plea in abatement calling attention to the misnomer. Had it done so, upon its being sustained by the trial court the plaintiff might have filed an amended petition correctly naming the defendant, in which case the amended petition would have related back to the time of the filing of the original petition. Jago v. Indemnity Ins. Co. of North America (Com.App., opinion adopted by Supreme Court) 120 Tex. 204, 36 S.W.2d 980. See, also, Elmo v. James (Tex. Civ. App.) 282 S.W. 835, where it was held that if a suit is founded on a proper cause of action described with such certainty as to apprise the defendant thereof, an amended petition will relate back to the date of the commencement of the suit. And this is so for the obvious reason that an amended petition wherein a misnomer is corrected is in no sense the beginning of a new suit, but merely the correction of a mistake in the original petition.

It is clearly the right of a defendant to have his name correctly stated in the pleadings in order that he may enjoy the benefits of any judgment which may be rendered in the case without the necessity of extrinsic proof. But when given proper notice of the suit and afforded opportunity to appear and defend it, he must claim the right by seasonably calling the misnomer to the attention of the court. Otherwise the misnomer is waived, and he is as truly bound by the judgment as he would be if correctly named in the pleading.

Legislative enactments from time to time, and the opinions of our courts, show that our Legislature and our courts have consistently pursued a policy of liberality with respect to allowing the amendment of pleadings so as to avoid the loss of rights by litigants from the mere technicalities arising out of the filing of amended pleadings. See Vernon's Ann.Civ.St. arts. 2001, 5539a, 5539b; see, also, Cartwright v. Chabert, 3 Tex. 261, 49 Am.Dec. 742; Miszner v. Siter, 23 Tex. 621; Boren v. Billington, 82 Tex. 137, 18 S.W. 101. In Cartwright v. Chabert, supra, Justice Wheeler observed: "There has been no tendency to unnecessary strictness in practice manifested here, to suggest the necessity of further legislation upon the subject. And were we now to give to our laws, upon this subject, a construction and application more restricted and rigid, and to adopt a practice here more technical, and less liberal, than that which at present prevails in the English and American courts, no one at all familiar with the spirit of our legislation, can doubt that we should fail to carry out, in practice, its true spirit and intention. We should certainly depart from what has hitherto been regarded, by the profession and the courts, as the pervading genius and spirit of our system of remedial justice. We should, indeed, it may be apprehended, do something more than `hesitate to do right.'"

In this case the jury found, and the finding is so well supported by the evidence that it is not questioned, that the appellee was injured in the course of his employment and that he is totally and permanently disabled. Yet the majority have held, in effect, that because his attorney, in filing the original petition, inadvertently inserted the word "casualty" when naming the Consolidated Underwriters the insurance carrier, he has lost his right to collect all but a small fraction of the disability benefits which the appellant justly owes him. And this, notwithstanding the insurance company was in no way misled, but in fact appeared in court after its plea in abatement was overruled and contested the case. Its only assignment here is the purely technical one that the appellee lost his right by reason of the misnomer. As I view the authorities, such contention is as devoid of support in law as it is contrary to the principles of justice and natural right.