Opinion
No. 37166.
August 31, 1976. Motion for Rehearing and for Transfer to Supreme Court Denied September 30, 1976.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, WILLIAM E. BUDER, J.
Shaw, Howlett Schwartz, Clayton, for plaintiff-appellant.
Robert F. Ritter, St. Louis, for defendant-respondent.
Plaintiff appeals from an order sustaining defendant's motion to dismiss on the basis that plaintiff's suit is barred by limitations. We affirm.
The automobile accident giving rise to the litigation occurred on July 7, 1969. Suit was filed on May 30, 1973, against Donald L. Dutton. Service was attempted on "Donald L. Dutton" on four occasions through February 28, 1975. All were unsuccessful. On April 9, 1975, plaintiff amended his petition changing defendant's name from "Donald E. Dutton" to "Donald E. Button." Donald L. Button was served on April 23, 1975.
We find this case to fall squarely within the cases of Western Casualty and Surety Co. v. Lamping, 507 S.W.2d 38 (Mo.App. 1974); Elrod v. Lafayette Elevator Co., 379 S.W.2d 852 (Mo.App. 1974); Bruun v. Katz Drug Co. Inc., 359 Mo. 334, 221 S.W.2d 717 (1949); Daiprai v. Moberly Fuel Transfer Co., 359 Mo. 789, 223 S.W.2d 474 (1949).
We do not find this a mere misnomer case as plaintiff contends. Defendant was never served until after the statute of limitations had run on July 7, 1974. This is not a case where the correct defendant is timely served under the wrong name and subsequent amendment is made. While plaintiff may have intended to sue Button as the driver of the car, the petition and summons directed to Dutton does not properly distinguish the legal entity plaintiff intended to sue sufficiently to put Button on notice of the fact of suit. The subsequent amendment, therefore, was not the mere correction of a misnomer but was the introduction of a new defendant to the suit. In that situation the rule stated in Bruun v. Katz Drug Co. Inc., supra, is applicable:
In Maddux v. Gardner, 239 Mo.App. 289, 192 S.W.2d 14 (1945), relied on by plaintiff, the proper name of the train engineer was substituted for "John Doe" after the Statute of Limitations had run. The petition, however, made clear the legal entity intended to be sued and that "John Doe" was a fictitious name for a person whose name was unknown.
"Where a plaintiff files an amended petition bringing into the case new defendants, and if between the time of the commencement of an action and the time when new defendants are brought into the case the period of limitation prescribed by law for such an action has expired, the new parties may plead the statute as a bar of their liability, although the defense may not be available to the original defendants." (l.c. 718).
The judgment is affirmed.
NORWIN D. HOUSER and ALDEN A. STOCKARD, Special Judges, concur.