3 F.R.D. 27 | M.D. Penn. | 1943
This action was brought to recover damages for the wrongful death of the husband of the plaintiff. Prior to the expiration of the period of the statute of limitations, the American Oil Company was served by the defendant, Scranton-Spring Brook Water Service Company, with a third-party complaint, wherein it is alleged that the American Oil Company is alone and solely liable for the damages claimed by the plaintiff. Approximately forty days after the one-year period of the statute of limitations had expired the plaintiff filed a motion for leave to amend the complaint to charge the American Oil Company with liability. The American Oil Company opposes the granting of the motion on the ground that the claim is barred by the statute of limitations.
Only one case has been found which deals with the question here under consideration. Gray v. Hartford Acc. & Indem. Co., D.C., 36 F.Supp. 780. This case was decided in Louisiana where the rule prevails that an action brought against one of two or more joint tort feasors tolls the running of the statute of limitations as to the other joint tort feasors. Such is not the law of Pennsylvania. Bowers v. Gladstein et al., 317 Pa. 520, 178 A. 44; Murray v. Pittsburgh Athletic Co. et al., 324 Pa. 486, 188 A. 190. Consequently, the Gray case is not applicable here.
The plaintiff’s motion is filed pursuant to the provisions of Rule 14 of the Federal Rules of Civil Procedure, 28 U.S. C.A. following section 723c, which provides in part: “The plaintiff may amend his
The plaintiff contends that the motion to amend should be granted, for the reason that the object of third-party procedure is to avoid circuity of action and to adjust in one proceeding various phases of a single controversy. _ The fallacy of this contention lies in the fact that there can be no further proceedings on the cause of action which she desires to allege against the American Oil Company unless her amendment is allowed. Hence, refusal of plaintiff's motion will not result in the institution of additional actions.
The plaintiff has advanced additional arguments in support of the motion which arguments are based upon an apparent contention that the third-party procedure is not controlled by the statute of limitations. I find no justification for such contention either in Rule 14 or in the decided cases.
It is ordered that the motion of the plaintiff filed December 29, 1942, to amend ‘ the complaint be, and it is hereby denied.