Waugh v. Steelton Taxicab Co.

Opinion by

Mr. Justice Musmanno,

The plaintiff, who was injured while riding in a taxicab owned by a “Steelton Taxicab Company”, brought a suit in trespass against the said Steelton Taxicab Company, designating it as a corporation, only to find, after the statute of limitations had run, that the said taxicab “company” was not a corporation but a fictitious name used by Anthony John Kosir in the conduct of his taxicab business.

The plaintiff then obtained a rule on Kosir to show cause why the complaint should not be amended, to substitute as defendant, instead of the designation originally employed, the name of Anthony John Kosir trading and doing business as the Steelton Taxicab Company. The lower court discharged the rule and the plaintiff appealed.

Legal principle and precedent, as well as elemental logic and justice coincide to authorize the filing of the amendment. The sheriff served the complaint at Kosir’s business office and upon Pearl Clark, his employe. There is no doubt, therefore, that the correct agency charged with responsibility for the accident was served even though under a wrong name.

*438 It would be strange indeed if the law would permit a person actually responsible for a civil or criminal act to escape accountability because the summons or warrant served on him named him Richard Roe instead of John Doe. In the case of Wright v. Eureka Tempered Copper Company, 206 Pa. 274, 55 A. 978, the defendant actually served and actually responsible was the Eureka Copper Works, although the defendant was erroneously described as “Eureka Tempered Copper Company.” The lower court there also refused to allow an amendment to correct the name. Upon appeal, this Court said: “In this case there is no dispute as to what was intended and what was actually done in bringing the suit. . . . He [counsel for plaintiff] served the right party, the manager of the copper works, and thus brought that company into court, but under a wrong name. The mistake in bringing the suit was in the name of the party actually summoned, and not in suing the wrong party, and the amendment should have been allowed. The judgment is reversed with a procedendo.”

The same principle is involved where the entity sued is decribed as a corporation but it develops later that the defendant intended and actually served with process is a partnership. In McGinnis v. Valvoline Oil Works, Ltd., 251 Pa. 407, 96 A. 1038, the Court authorized an amendment which changed “The Yalvoline Oil Works, Limited, a corporation,” to “The Yalvoline Oil Works, Limited,” a partnership association. In Gozdonovic v. Pleasant Hills Realty Co., et al., 357 Pa. 23, 53 A. 2d 73, the defendant was named as “Pleasant Hills Realty Company, a corporation.” Subsequently discovering that the company was not a corporation, but a partnership, the plaintiff moved to amend and was permitted to do so although the statute of limitations had then run. On appeal here, this Court said: “The question for determination is whether the right party was *439 sued but under a wrong designation, or whether a wrong party was sued and the amendment was designed to substitute another and distinct party. . . . The defendant newly named under the amendment was merely the partnership entity. . . The amendment as allowed, therefore, did not substitute any new parties upon whom liability could be imposed; the action was still directed against the entity which was Xartub’s employer, and the designation of that entity could properly be changed from that of corporation to partnership.”

The mistake of the plaintiff in this case was a natural one. The word “company”, when used as part of a name of a business enterprise reasonably suggests a corporation, and the public logically assumes, having no notice to the contrary, that it is a corporation. Where a private individual uses “company” as a fictitious name, he may deceive the public whether he intends to do so or not. In the present state of the law, there is nothing to prevent any individual, no matter how meager his resources, from magnifying his prestige by tacking “company” after his name. Whether artificial ballooning of one’s importance should be permitted in this manner is a question for the legislature and not for the courts. Our only province is to permit any innocent person who has been deprived of his day in court as a result of such deception to file the necessary amendment which will bring him back into court.

In refusing the amendment asked for, the lower court said: “. . . if the effect of an amendment will be solely to correct the name under which the right party, who is in court, was sued it should be allowed, if not prejudicial to the other party, even though tbe. statute of limitations has run.” To attach as a condition, in allowing an amendment where the right party is in court, that that party must not be prejudiced, is to produce a condition that devours the grace because the *440 defendant is always bound to be prejudiced. That is the whole purpose of the procedure, namely that the defendant be required to answer for an offense charged against him.

The lower court quotes from Miller, Admrx. v. Jacobs, Admrx., supra, 361 Pa. 492, 497: “. . . While it is true that the name of a party already on the record may be corrected at any time, it is elementary that a new party, or a party in a different capacity, cannot be brought on the record after the statute of limitations has become a bar. . .” But that proposition is not involved here at all because Kosir is not a new party nor is he a party in a different capacity. Although Kosir was wearing the cloak of the Steelton Taxicab Company he was the precise person involved in the accident and he was precisely the person served, through his agent employed in his very business office.

Other decisions relied on by the defendant and by the court below were cases where the plaintiff endeavored to include in the amendment business partners who were not embraced in the scope of action at all since they would not be personally liable for any judgment returned against the company which had been named as the defendant. Nor is an amendment permissible where the suit is first brought against a person as an administrator, executor or trustee and the proposed amendment attempts to bring him on the record in his own individual capacity. In such a situation an estate is being sued in the first instance and in the amended proceedings an individual in his own right is being sued.

In the case at bar no one other than Kosir was ever involved because there was no entity as the Steelton Taxicab Company apart from the personality of Kosir.

The judgment below is reversed with a procedendo.