Citations
- 4 Ohio App. 2d 15
Full opinion text
Lynch, J.
This appeal is on questions of law from an order of the Common Pleas Court overruling the motion of plaintiff-appellant to substitute the name “The Isaly Dairy Company” for the name of “The Isaly Dairy Company of Pittsburgh” as party defendant.
It is a personal injury case in which plaintiff alleges in her petition that she was injured on or about September 28, 1962, by a truck owned by the defendant and driven by its agent, which truck backed into her automobile while she was parked in a private parking lot and that as a result of this accident she sustained medical expenses amounting to $3,625.85 and had to incur expense amounting to $615 to hire persons to perform work that she was unable to do because of her injuries.
She filed her petition on August 20, 1964, against “The Isaly Dairy Company of Pittsburgh, a corporation authorized to do business in the State of Ohio, with Walter H. Paulo of 1033 Mahoning Avenue, Youngstown, Ohio, as its statutory agent for the purpose of service.” To her petition, she attached interrogatories asking whether one of the defendant’s trucks was involved in an automobile accident with plaintiff at the time and place alleged in the petition and, if so, whether the driver of the truck involved in the accident was operating within the scope and course of his employment.
On August 20, 1964, service was made on Walter Paulo, statutory agent of The Isaly Dairy Company of Pittsburgh. Answer day for the defendant in this petition was September 19, 1964, but nothing was done by defendant until September 28, 1964, when the attorney of defendant obtained leave of court to move or plead by October 19, 1964. Defendant still did not file anything until October 20, 1964, when it obtained leave of court to file its answer instanter. The answer admitted the corporate existence of defendant and made a general denial to the petition.
On November 6, 1964, defendant obtained leave of court to file its answer to interrogatories annexed to plaintiff’s petition, in which it denied that any of its trucks was involved in an accident with plaintiff.
On December 5, 1964, plaintiff moved to substitute the name “The isaly Dairy Company” for the name “The Isaly Dairy Company of Pittsburgh” in the petition, praecipe, summons and return of summons. The trial court overruled this motion, because The Isaly Dairy Company of Pittsburgh and The Isaly Dairy Company are two separate and distinct corporations, and the statute of limitations had run on the action against The Isaly Dairy Company. The trial judge cited the case of Hennon v. Bernard Construction Co., 120 Ohio App. 157, as authority for his decision.
The attorney who represented The Isaly Dairy Company of Pittsburgh in filing its answer is the same one who is representing the defendant-appellee in this appeal.
There was no bill of exceptions filed in this case, so that we must decide this case on the basis of the transcript of the record. We will take judicial notice of the fact that the current City Directory lists The Isaly Dairy Co., 1033 Mahoning Avenue, with Walter H. Paulo as President, Secretary and General Manager.
There is nothing in the transcript of the record to show how the plaintiff obtained the name of “The Isaly Dairy Company of Pittsburgh,” which she mistakenly named as defendant. Plaintiff’s counsel in his argument before this court stated that he obtained this information by inquiry from the Secretary of State. However, since this does not appear in the record of this case, we cannot consider it.
Plaintiff contends that she intended to sue the Isaly Dairy Company, that the Isaly Dairy Company was served through one of its officers and thus had actual notice of this suit, that the designation of “The Isaly Dairy Company” as “The Isaly Dairy Company of Pittsburgh” was an error that she should be permitted to correct, that it was a coincidence that there was another corporation named “The Isaly Dairy Company of Pittsburgh” at the same address with its statutory agent being an officer of “The Isaly Dairy Company,” and that substantial justice would be done to plaintiff by the permission of this substitution, while no harm would be done to “The Isaly Dairy Company,” which at all times had notice of this claim.
The fact situation in this case concerns two intermingled corporations whose main offices are located in the same building at the same address. The person served with summons is an officer of both the corporation that is the party defendant and the corporation which is the subject of a motion to substitute as a party defendant. Both corporations have as part or all of their names the identical characteristic words “Isaly Dairy Company.” The plaintiff was correct in the address of the corporation which she intended to sue and was correct in the name of the person who was served as a representative of the corporation that she intended to sue, but she was mistaken as to the correct name of the corporation.
Cases similar to this case are relatively few, and the decisions of comparable cases are in conflict.
We concede that Hennon v. Bernard Construction Co., 120 Ohio App. 157, is a comparable case and is authority for the decision of the trial court. However, we strongly disagree with the decision in the Ilennon case and feel that it results in an injustice to the plaintiff.
Furthermore, we feel that the Ilennon case is contrary to the decision of the Ohio Supreme Court in the case of Limbaugh v. Western Ohio Rd. Co., 94 Ohio St. 12, as well as the decision in the case of Spence, Admx., v. Commercial Motor Freight, Inc., of Indiana, 99 Ohio App. 143. We prefer to follow the latter two eases in our decision on this case.
The conflict in the decisions of the cases revolves around the question whether such fact situations can be distinguished from similar ones involving two separate and distinct corporations having no connection with each other. We feel that such a distinction should be made. We further feel that the situation in the present case is a type of situation which should be made an exception to a general principle of law, rather than being forced to fit into a general principle of law developed for more common fact situations.
We will discuss the Hennon, Limbaugh and Spence cases in more detail later in this opinion, but first we want to cite the general principles of law that are pertinent to this case.
Section 2309.58, Revised Code, provides in part as follows:
“Before or after judgment, in furtherance of justice and on such terms as it deems proper, the court may amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party or a mistake in any other respect, * *
Section 1.11, Revised Code, provides in part as follows:
“Remedial laws and all proceedings under them shall be liberally construed in order to promote their object and assist the parties in obtaining justice. * *
There is a good summary of law applicable to this case stated in 34 Ohio Jurisprudence 2d 620-621, Limitation of Actions, Section 143, as follows:
“A question frequently before the courts is whether and under what circumstances a corporation may be effectively substituted as party defendant after the statute of limitations has run, for another corporation originally named as defendant. In theory, the answer to this question is fairly simple: If the substitution in effect amounts to not more than the rectification of a misnomer, the statute of limitations is not a bar; where, however, 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. In practice, however, this distinction is not easily applied, and the courts have reached different results on identical or similar facts. The real test by which the courts seem to be guided appears to be whether or not plaintiff actually has a cause of action against the legal entity which he attempts to substitute, and whether his fault in bringing action against a legal entity bearing a different name is only slight. In accordance with these principles it has been held that where an action is brought against a named 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. But the correction of the name of a corporation defendant, without any actual substitution of one corporate entity for another, does not constitute the substitution of a new party as defendant. That is to say, where the substitution amounts merely to a correction of a mistake in the name of the original corporate defendant without a change in its identity, no new cause of action is introduced and the substitution is permissible even after the statute of limitations has run.”
See 8 A. L. R. 2d 156-157, 161.
A leading case in Ohio is Beach v. Union Gas & Electric Co., 130 Ohio St. 280, of which the third paragraph of the syllabus is as follows:
“A court cannot, by permitting an amendment to a pleading making or substituting a new party defendant to an action, forestall the right of such party to invoke the statutory period of limitation as a bar to the action against him. The general rule is that, when an amendment is permitted introducing a new party defendant, where the period of limitation has expired between the suit’s commencement and the time the new party is brought in, such party may plead the limitation statute in bar of his liability.”
However, it must be noted that in the Beach case the plaintiff first filed an action against the Industrial Commission for workmen’s compensation because of an injury sustained while employed with The Union Cas & Electric Co., which was a self-insurer and not subject to the Workmen’s Compensation Act. A demurrer to plaintiff’s attempt to amend his petition to add The Union Cas & Electric Co. after the statutory time for commencing an action was sustained.
But where a corporation was made aware of the filing of an action by the service of summons on one of its officers and the name of a corporation that did not exist was designated as party defendant, courts have permitted the substitution of the correct name of the corporation which was the real party in interest, even after the statute of limitations has run, on the basis that this would be a correction in the name of the corporate defendant rather than the substitution of one corporate entity for another The mistake in the name of the defendant is called a misnomer. Morgan v. Bayview Hospital, 82 Ohio Law Abs. 499; Bloom v. Holzhauer, 119 Ohio App. 139; State, ex rel. American Union Telegraph Co., v. Bell Telephone Co., 36 Ohio St. 296; Boehmke v. Northern Ohio Traction Co., 88 Ohio St. 156; Maloney v. Callahan, 127 Ohio St. 387; 8 A. L. R. 2d 161.
If the corporation named as a defendant formerly conducted the business operation out of which a tort action arose, but had transferred its business to another corporation, which is now liable in the tort action, and summons has been served on the real party in interest, the courts have held that under Section 2309.58, Revised Code, the plaintiff may amend his petition to correct the mistake in the name of the defendant corporation. Boehmke v. Northern Ohio Traction Co., 88 Ohio St. 156; Grooms v. Greyhound Corp., 16 Ohio Opinions 2d 201.
Hennon v. Bernard Construction Co., 120 Ohio App. 157, concerned two corporations named Bernard Construction Company and the Bernard Pipe Line Company, whose offices were located in the same building but were separate, and whose executive officers were the same men, though serving each company in a different capacity. The claimed tort was committed while a house was being repaired by the Bernard Construction Company, but the operator of the machine committing the alleged tort was employed by the Bernard Pipe Line Company. Suit was filed against the Bernard Construction Company and service of summons was made upon its comptroller, who also was the comptroller of the Bernard Pipe Line Company. At the time of trial, which was after the statute of limitations had run against the Pipe Line Company, plaintiff moved to substitute the name of Bernard Pipe Line Company as party defendant in place of Bernard Construction Company. Over the objection of counsel for Bernard Pipe Line Company, who also represented the Bernard Construction Company, the trial court granted this motion. The case proceeded to trial, and judgment was entered against the Bernard Pipe Line Company. On appeal, the judgment was reversed on the basis that the trial judge should have denied the request for substitution of defendants.
In Limbaugh v. Western Ohio Rd. Co., 94 Ohio St. 12, the plaintiff filed suit against The Western Ohio Railway Company and service was made on that defendant. At the trial it developed that the negligent acts were committed by The Western Ohio Railroad Company. The plaintiff called one F. D. Carpenter as a witness who testified that he was president of The Western Ohio Railway Company and was also general manager and vice president of The Western Ohio Railroad Company; and that the attorneys appearing for the Railway Company were also attorneys for the Railroad Company. The trial court sustained a motion of the plaintiff to substitute the name of The Western Ohio Railroad Company in place of The Western Ohio Railway Company. Counsel for defendant excepted and asked the court to direct a verdict for defendant. This request was refused. The trial of the case continued, and a verdict and judgment was rendered against the substituted defendant. The Court of Appeals reversed this judgment for the reason that the trial court “erred in substituting plaintiff in error as defendant below.” The Supreme Court reversed the Court of Appeals and affirmed the decision of the Common Pleas Court. The first paragraph of the syllabus of this case is as follows:
“When the actual wrongdoer, who is not served or made a party defendant in an action, has been substituted for another mistakenly sued, and, after such substitution, appears by counsel and contests the merits, it cannot afterwards question the jurisdiction of the court over it.”
It is submitted that the facts of the Uennon case are identical to the facts of the Limbaugh case, and that, therefore, the decision of the Uennon case is inconsistent with the law of Ohio as pronounced by the Ohio Supreme Court in the Limbaugh case.
Spence v. Commercial Motor Freight, Inc., of Indiana, 99 Ohio App. 143, was an action for damages for the wrongful death of plaintiff’s decedent. Action was instituted against Commercial Freight Lines, Inc., Indianapolis, Indiana, and service of summons was obtained by registered mail through the Secretary of State under the provisions of Section 2703.20, Revised Code. The receipt of the registered mail was signed “Com. Motor by O. K. Riggle.” Thereafter, Commercial Motor Freight, Inc., of Indiana, moved to quash service, because Commercial Freight Lines, Inc., the defendant named in the petition, is a different corporation organized under the laws of Ohio and located in Ohio, whereas the Commercial Motor Freight, Inc., is an Indiana Corporation. Following this motion, plaintiff moved for leave to amend her petition, praecipe for summons, summons, and return of summons, by correcting and changing the name of defendant to read “Commercial Motor Freight, Inc., of Indiana.” The trial court sustained plaintiff’s motion and overruled the defendant’s motion to quash. The appellate court affirmed the decision of the trial court. The pertinent paragraphs of the syllabus of this case are as follows:
“1. Under Section 2309.58, Revised Code, a misnomer of defendant in the petition may be changed by amending such petition.
“2. Under Section 1.11, Revised Code, the provisions of Section 2309.58, Revised Code, are to be liberally construed, and are to be exercised in the furtherance of and not for the purpose of defeating justice.
“3. Where it is manifest that the entity sought to be reached in the petition, praecipe, and by the service, was actually apprised of the action and was notified in regular manner and by registered letter, subject only to the disparity in name, the intent of the service of process is accomplished, and a court may order such defective summons amended without requiring an amended summons to be served, if it be shown that the party served will not be prejudiced thereby. (Section 2309.58, Revised Code.)”
McDonald v. Nebraska (C. C. A. 8th, Neb.), 101 F. 171, concerned the substitution of a party plaintiff after the expiration of the statute of limitations, but at page 182 the effect of statutes similar to Ohio on the question whether an amendment which makes a substitution of parties relates back to the commencement of the action so far as the operation of the statute of limitations is concerned was well expressed as follows :
“There are in the history of the jurisprudence of every country certain epochs which mark the beginning of distinct trains of legal ideas and judicial conceptions of justice. There was a time in England and in this country when the fundamental principles of right and justice which courts were created to uphold and enforce were esteemed of minor importance compared to the quibbles, refinements, and technicalities of special pleading. In that period the great fundamentals of the law seemed little, and the trifling things great. The courts were not concerned with the merits of a case, but with the mode of stating it. And they adopted so many subtle, artificial, and technical rules governing the statement of actions and defenses — for the entire system of special pleading was built up by the judges without the sanction of any written law — that in many cases the whole contention was whether these rules had been observed, and the merits of the case were never reached, and frequntly never thought of. Happily for mankind, and for the law itself, that epoch is past in England and in this country, and we now have an epoch in which substance is more considered than form, in which the justice and right of the cause determines its decision, and not some technical error or mistake in the pleadings. In England today the amendment complained of in this case would be allowed quite as a matter of course, and the suggestion that the defendant had gained some advantage by the mistake would not be entertained for a moment. There, as here, every error or mistake in the pleadings which does not affect the substantial rights of the adverse party may be cured by amendment; and what is meant by substantial right is a right going to the actual merits of the case. Such a right is not acquired by a mistake or error in pleadings which has not misled the other party to his prejudice. And the prejudice must be actual and irreparable, and not merely theoretical. At this day the party who seeks to profit by an error or mistake in pleading must be able to invoke the principle upon which the law of estoppel is founded. * *
In Western Union Tel. Co. of Baltimore City v. State, for Use of Nelson, 82 Md. 293, 33 A. 763, 31 L. R. A. 572, 51 Am. St. Rep. 464, an action was brought against the “Western Union Telegraph Company” to recover damages for the death of a child, and in the bill of particulars the words ‘ ‘ a corporation of the state of New York” were appended to the corporate name. The summons was served on its manager. After the statute of limitations had run, it appeared from the evidence in the trial that there were two corporations, one whose name was the “Western Union Telegraph Company,” a corporation of the state of New York, and another whose name was the “Western Union Telegraph Company of Baltimore City.” The same person was the general manager of the former and the president of the latter. It also appeared that the alleged negligent acts were committed by the Maryland corporation. The court held that the substitution of the Maryland corporation for the original defendant was proper since this did not bring in a new party. The court said, at page 306: