Holmes v. CAPITAL TRANSIT COMPANY, 148 A.2d 788

Holmes v. CAPITAL TRANSIT COMPANY

148 A.2d 788

D.C.

1959

Check Treatment

ROVER, Chief Judge.

Allеging that she sustained injuries when the streetcar on which she was a passenger collided with an automobile, plaintiff brought suit against Capital Transit. After answering, the transit company filed a third-party cоmplaint against Dimitrios Kalesis, the operator of the automobile, asserting that plaintiff’s injuries were caused in whole or in part by his negligence. Kal-esis denied he was negligent in his answer to the third-party complaint and alleged that plaintiff’s injuries were solely attributable to the negligence of Capital Transit. Plaintiff’s complaint contained no allegations of negligence on the part of Kalesis, nor was the complaint amended to assert a claim against him.

The cаse was submitted to the jury on special interrogatories. With the jury’s answers, these were:

“1. Do you find that D. C. Transit ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍System, Inc. was negligent? No.

* * * * * *

“2. Do you find that Dimitrios Kal-esis was negligent? Yes.

“3. If your answer to question 1 or 2 is in the affirmative, in what amount do you find that Evelyn Holmеs has been damaged? $1900.00.”

The court thereupon entered the finding in favor of Capital Transit and dismissеd the third-party action.

A few days later and before judgment was formally entered, plaintiff filed a mоtion to amend her complaint to include Kalesis as a co-defendant. The ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍motion was opposed on the ground that plaintiff’s claim against him was barred by the three-year statute'of limitations, D.C. Code 1951, § 12-201. 1 Plaintiff’s motion to amend was denied and judgment was entered on the jury’s verdict. Plaintiff now aрpeals the ruling on her motion.

If we understand plaintiff’s contentions correctly, she first challenges the necessity of formal amendment under Rule 14 (a) and argues in substance that she is not barred by the stаtute of limitations because plaintiff and the third party are opposing parties without amendment. This issue has been raised on several occasions in the United States District Courts and inasmuch as Municipal Court Civil Rule 14(a) is the same as its counterpart in the Federal Rules of Civil Procedure, 28 U.S.C.A., we may look to these decisions as authority.

The short answer to this contention is that plaintiff and thе third ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍party are not opposing parties in the case until plaintiff asserts a direct claim against the third-party defendant. 2 If the plaintiff attempts *790 to accomplish this hy meаns of amendment, the amended complaint begins a new action and the motion to amend should рroperly he denied if at the time it is made the statute has run on the plaintiff’s claim against the third party. Carlise v. Monongahela Railway Co., D.C.W.D.Pa., 16 F.R.D. 426; Horan v. Pope & Talbot, Inc., D.C.E.D.Pa., 119 F.Supp. 711; M.V.M., Inc. v. St. Paul Fire & Marine Insurance Co., D.C.S.D.N.Y., 156 F.Supp. 879. See also 3 Moore’s Federal Practice, Pаra. 14.09 (Supp.1958). It is of no consequence that the defendant im-pleaded the third party ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍prior tо the time the statute ran on the plaintiff’s claim against him. Hankinson v. Pennsylvania Railroad Co., D.C.E.D.Pa., 160 F.Supp. 709.

We аre of the view that this is dispositive of the issue raised on this appeal. However, citing the dissenting opinion in Brotman v. McNamara, 181 Md. 224, 29 A.2d 264, plaintiff further argues that under Rule 15 an amendment or new pleading mаy he waived where the third-party defendant’s liability to the plaintiff has been accepted by thе parties as an issue in the case. The only federal court which has passed directly on this point appears to be in accord with the views expressed in the Brotman dissent. See Falls Industries, Inc.” v. Consolidated Chem. Indus., Inc., 5 Cir., 258 F.2d 277. 3 We do not think it necessary to discuss the soundness or unsoundness of the holding in Fаlls Industries ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍because it is not applicable to the circumstances of the present cаse for several reasons.

In urging the application of Rule 15, plaintiff erroneously proceeds on the supposition that the jury returned a verdict in favor of the plaintiff against the third-pаrty defendant. While question 3 of the interrogatories is improperly phrased and somewhat misleаding, it is nevertheless clear that the liability of the third-party defendant to plaintiff was not submitted to the jury, nоr does it appear that the parties accepted it as an issue.

The third-party defendant did not assert any defenses against the plaintiff, although he might properly have done so under Rule 14(a) since he might have been bound in the third-party action by an adjudication of defendant’s liаbility to the plaintiff. Moreover, counsel for the plaintiff in both his opening and closing statements аlleged negligence only on the part of Capital Transit and did not offer proof of Kalesis’ negligence. Finally, when jury instructions were discussed in a conference at the bench, the trial judge indicated that the third-party action would be dismissed if a verdict were returned in favor of Capital Transit. This conference took place after the special interrogatories were submitted to the jury and no objection was made by counsel for the plaintiff. It is obvious therefore the question of waiver is not in issue in this case.

The ruling of the trial court is accordingly.

Affirmed.

Notes

. The accident which gave rise to the suit occurred on May 6, 1955. Plaintiff’s motion to amend the complaint was filed May 30. 305S.

. The plaintiff may assert the claim either by amendment or by a new pleading. See notes of the Advisory Committee, Committee Note of 1946 to Rule 14.

. A similar result is suggested in Patton v. Baltimore & O. R. Oo., 3 Cir., 197 F.2d 732, 743. But see United States v. Lushbough, 8 Cir., 200 F.2d 717.