Opinion
No. 69343.
November 17, 1987.
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY; WILLIAM W. ELY, JUDGE.
Dennis L. Davis, Kansas City, for appellant.
James F. Duncan, Kansas City, Robert S. Allen, Mark T. Keaney, St. Louis, for respondents.
Appellant seeks to recover for losses resulting from purchase of bonds which went into default.
Appellant filed her Petition for Damages on February 21, 1985, in which breaches of warranties were alleged. Appellant filed a First Amended Petition on February 6, 1986, in which fraud and negligence were alleged. On June 13, 1986, the trial court sustained respondents' Motion for Summary Judgment on Counts I and II "on the grounds that said Counts are barred as a matter of law under the applicable statute of limitations * * *."
The Western District of the Court of Appeals affirmed and the cause was certified to this Court by a dissenting judge. Mo. Const. art. V, § 10.
In Koerper Company, Inc. v. Unitel International, Inc., 739 S.W.2d 705 (Mo. banc 1987) (decided concurrently herewith), we held that when a claim asserted in an amended pleading "arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading," the amended pleading relates back to the original pleading so as to save a plaintiff's cause of action from the bar of a statute of limitations. See Rule 55.33(c). The "same evidence" test articulated in Arpe v. Mesker Brothers Iron Company, 323 Mo. 640, 648, 19 S.W.2d 668, 670 (1929) should no longer be followed.
The cause is reversed and remanded with directions to the trial court to set aside its order of June 13, 1986, and to reconsider and rule again on respondents' Motion for Summary Judgment in a manner not inconsistent with this opinion.
All concur.