author: PER CURIAM.

text:
    Albert WANT, Plaintiff-Appellant, v. Louis LEVE and Rubin Leve and Century Supply Company, a corporation, Defendants-Respondents.
    No. 38309.
    Missouri Court of Appeals, St. Louis District.
    Oct. 24, 1978.

      Jay R. Burns, Bridgeton, for plaintiff-appellant.
    Stanley E. Goldstein, Clayton, for defendants-respondents.
   PER CURIAM.

Albert Want, the plaintiff in the trial court, appeals from a judgment of the Circuit Court of the City of St. Louis entered after the respondents’ motion for judgment on the pleadings had been sustained on the grounds that the five year statute of limitations, § 516.120 RSMo. 1969 had run and the cause of action was thereby barred. The central issue is whether plaintiff’s Third Amended Petition, filed on March 13, 1975, relates back to the commencement of the cause of action and thereby avoids the limitations bar. For reasons hereinafter stated we hold that it did and the judgment of the trial court must be reversed and the cause remanded.

Mr. Want, the appellant, filed Cause No. 14599-F, a three count petition in the office of the Circuit Clerk for the City of St. Louis on April 9, 1970. In this petition the defendant named in the caption of the petition was “Century Supply Company, c/o Mr. Louis Leve, Registered Agent, 1107 Franklin Avenue, St. Louis, Missouri.” Count I of the petition sought damages for breach of contract; Count II for unjust enrichment; and Count III for breach of a partnership agreement between the plaintiff and “defendant.” According to the allegations of this petition the “defendant company” hired the plaintiff to serve both as a salesman and to take an integral part in the “defendant company’s” business on or about April 5, 1969, and “after seven months of plaintiff’s services” (November, 1969), discharged him. Despite the fact that the term “defendant” was used throughout the petition, in all Counts, there was no allegation whether the “company” was a corporation, a partnership, or a sole proprietorship, nor were there any allegations whatsoever from which one could glean its legal status.

According to the Return of Service of Summons the deputy sheriff certified that he had served a copy of the summons and a copy of the petition on the “Century Supply Co., Mr. Louis Leve, Reg. Agent” in the City of St. Louis on the 13th day of April, 1970. On April 25, 1970, an Answer was filed in the case by the “above alleged defendant Century Supply Company” wherein the defendant denied each and every allegation in the plaintiff’s petition. This Answer bore the signature of C. Marshall Friedman, of the law firm of Gray and Friedman, and a copy of same was forwarded to plaintiff’s attorney of record.

On May 15, 1970, plaintiff filed a motion for the inspection of books and papers. Notice was served on defendant’s attorney of record that the motion would be called up on the 26th day of May, 1970. On May 21, 1970, the defendant’s attorney of record filed a motion to dismiss plaintiff’s petition on the grounds: (1) that the claim was barred by the Statute of Frauds, § 432.010 RSMo. 1969, and (2) that breach of an employment contract for an indefinite term gave rise to no cause of action, and simultaneously filed “Defendant’s Objection to Plaintiff’s Motion for the Inspection of Books and Papers” on the grounds that it was a fishing expedition and exceeded the discovery contemplated by § 510.030 RSMo. 1969. On May 26,1970, the plaintiff retaliated by filing its Motion to Strike Defendant’s Motion to dismiss and to overrule said motion, on the grounds it was not timely filed, and for other reasons not pertinent to the issues before us in this appeal.

Thereafter, on the same day, May 26, 1970, the defendant, by leave of court, amended its Answer by adding to Counts I, II and III an allegation “that Plaintiff’s motion is barred by the Statute of Frauds.” The defendant’s motion to dismiss was argued and time for the filing of briefs by the parties was granted. On May 28,1970, the “Defendant’s” Motion to Dismiss was sustained without prejudice to plaintiff’s filing of an amended petition. No time limitation was set by the trial court within which plaintiff might file his amended petition.

On June 13, 1970, the plaintiff instituted a new cause of action, Cause No. 16058-F, in the Circuit Court of the City of St. Louis. This petition, also in three counts, sought judgment for unjust enrichment, breach of contract, and breach of partnership agreement in Counts I, II and III respectively. In the caption of this petition the defendant was also identified as “Century Supply Company, c/o Mr. Louis Leve” etc. and, as in the prior petition was referred to as the “defendant company” or just as the “defendant.” Except for changing the order in which plaintiff stated his claims in the petition, it was essentially the same as the previous one. The date of the breach of contract or of the wrongful discharge was again alleged to have occurred “seven months” after the plaintiff commenced performing his services under the oral contract entered into on or about April 5,1969. The Sheriff’s return on the summons in this case showed that service was had on “the Century Supply Co., a corp. (a corporation)” on June 17, 1970, by delivering a copy of the “writ and petition” to “Louis Leve, Reg. Agent” of the said defendant corporation, in the usual business office and in charge thereof and recited further that the President or other Chief Officer of the defendant could not be found in the City at the time of service.

On June 22,1970, the “defendant” Century Supply Company, filed a Motion to Dismiss pointing out that the allegations contained in this petition were identical to those previously ruled on in Cause No. 14599-F and that therefore the cause of action was barred by reason of res judicata, by the Statute of Frauds, and further alleged that the plaintiff failed to state a claim upon which relief could be granted. On July 29, 1970, argument on this motion, by agreement of counsel, was reset at an unspecified future date; and on September 11,1970, argument on the motion to dismiss was passed to be reset on request of the attorneys of record because of lack of time to hear. Both parties filed suggestions in support of their respective positions with respect to the motion to dismiss and subsequently on October 28,1970, plaintiff again filed a motion for the inspection of books and papers of the “defendant,” which would shed light on his allegations that by his efforts he caused an increase in the gross income of the “defendant company.” This motion provoked defendant’s objection on the grounds that the order in the prior case was res judicata on this point and that plaintiff’s petition was barred by the Statute of Frauds. Plaintiff thereupon amended his motion to inspect on November 6, 1970, and on November 13, 1970, defendant’s motion to dismiss was argued, submitted and sustained. Plaintiff was granted leave to file an amended petition within ten days.

On November 20, 1970, plaintiff filed his First Amended Petition, this time a single count petition wherein the defendant was referred to as either the “defendant company” or simply the “defendant.” This petition essentially alleged an oral contract entered into between the parties on or about April 5,1969, whereby plaintiff would work as a salesman “and as an integral part of Defendant’s wholesale plumbing supply business, taking a part in the basic operations of said business;” that he would be paid a 5% commission on the business he brought the “Defendant company” and that plaintiff fully performed his part of the contract for seven months when he was unjustly discharged without good cause; that the “defendant” had been unjustly enriched and had failed to make restitution to the plaintiff or to account to him; that plaintiff was without an adequate remedy at law and had been irreparably injured to the extent of $3,600 expenses advanced by plaintiff and by an amount which could not be known to plaintiff unless the court ordered an accounting. The only allegation in this petition which was not present in Count II of the prior petitions — the unjust enrichment count — filed by plaintiff was that he and the “defendant” agreed to publicize the contract between the parties to plaintiff’s business associates, and that, in furtherance of the contract, said notice proclaimed to plaintiff’s associates that he was now affiliated with “defendant company.” The prayer of this petition was for an accounting, that “defendant” be ordered to pay plaintiff 5% commission on all business obtained by the “defendant” from business obtained by the plaintiff together with a lump sum for future commissions on said business; and further that business income of the “defendant” from the date of plaintiff’s wrongful discharge be held in constructive trust for the plaintiff.

The defendant, “Century Supply Company,” on December 22, 1970, retaliated with its Motion to Dismiss based on the same grounds as had been its prior motions to dismiss with respect to the previous petitions filed by plaintiff. On March 1, 1971, Defendant’s Motion to Dismiss was sustained “with prejudice,” because the plaintiff stated no ground for equitable relief and his claim was barred by the Statute of Frauds, § 432.010 RSMo. 1969. On the same date plaintiff filed his Notice of Appeal to the Supreme Court from the “Trial Court Order that ‘Plaintiff states no ground for equitable relief and his claim is barred by Sec. 432.010 V.A.M.S.’ ”

This appeal was transferred to the Missouri Court of Appeals where the judgment of the trial court was reversed because of the possibility that the contract could have been performed within one year and its enforcement was not barred by the Statute of Frauds. The cause was remanded with directions to grant plaintiff leave to amend his petition to state a cause of action for recovery for the reasonable value of the services plaintiff had rendered. Want v. Century Supply Company, 508 S.W.2d 515 (Mo.App.1974).

Upon remand a new group of attorneys entered their appearance on behalf of the plaintiff on May 14, 1974, and leave to file an amended petition was requested and granted. On June 21, 1974, Plaintiff’s Second Amended Petition, a two count petition, was filed. This petition, like the earlier petitions, named “Century Supply Company” as the defendant and did not allege its legal status more particularly. Count I of plaintiff’s petition contained the allegations of the previous petitions except that it further alleged that the “defendant” had unconscionably converted plaintiff’s special property interest by defendant’s wrongful dismissal of plaintiff, and prayed for an accounting for commissions already earned together with a lump sum payment for future commissions on the business produced from a geographical area which had been agreed upon as plaintiff’s area of operations. Count II of this petition sought to recover from the “Defendant” the sum of $3,600 for the value of reasonable expenses incurred by the plaintiff as “agent” for the “Defendant” together with the reasonable value of the services rendered by him to the “defendant,” to be ascertained by an accounting.

On July 2, 1974, “defendant” filed three motions: a Motion to Dismiss on the grounds of the Statute of Frauds and commingling of causes of action, an Alternative Motion to Strike certain paragraphs of plaintiff’s petition, and an Alternative Motion to Make More Definite and Certain. On October 22, 1974, all of these motions were denied.

Thereafter, on November 19, 1974, “defendant,” filed its Answer to Plaintiff’s Second Amended Petition denying all of the allegations contained in both Counts of plaintiff’s Second Amended Petition and, for the first time, pleaded the following:

“3. For further answer said alleged defendant states that it is not a proper party in this lawsuit in that it was not a legal entity, had no registered agent, had no legal existence, nor could it be sued in any representative capacity.”

On March 13, 1975, without obtaining leave of court or written consent of opposing counsel as required by Rule 55.33(a), plaintiff’s counsel filed a Third Amended Petition, changing the caption thereof and, for the first time, inserted in lieu thereof, the following: “William Leve, Bessie Leve, Louis Leve, and Rubin Leve, d.b.a. Century Supply Company, a corporation,” as the defendants. Paragraphs 1 and 2 of this Third Amended Petition read as follows:

“1. That at all times mentioned herein, Defendants William Leve, Bessie Leve, Louis Leve and Rubin Leve, were engaged in the plumbing supply business under the name of Century Supply Company, with the principal office of said business being at 1107 Martin Luther King Drive in the City of St. Louis, Missouri.
“2. That Defendant Century Supply Company, a corporation, is a corporation originating (sic) and existing under the laws of Missouri with its principal office at 1107 Martin Luther King Drive in the City of St. Louis, Missouri.”

The Third Amended Petition alleged two separate causes of action in Two Counts. Paragraphs 1 and 2, aforesaid, were set out in Count I and incorporated by reference into Count II. Count I pleaded a cause of action in conversion, in that the defendants had unconscionably converted plaintiff’s special property interest by wrongfully dismissing him from his contract of employment as a salesman and an integral part of defendants’ wholesale plumbing supply business, sought an accounting for business obtained from his “geographical sales area” and a 5% commission on said business plus a lump sum payment for future commissions on said business. Paragraph 14 of this Count further alleged:

“14. That said business being carried on by Defendants William Leve, Bessie Leve, Louis Leve and Rubin Leve, d/b/a Century Supply Company is now being conducted by Defendant Century Supply Company, a corporation, and said corporation has succeeded to all of the interests, rights and obligations of Defendants William Leve, Bessie Leve, Louis Leve and Rubin Leve d/b/a Century Supply Company in said agreement with Plaintiff, and said Defendants or some of them are the shareholders of said Defendant corporation.”

Count II of Plaintiff’s Third Amended Petition adopted by reference almost all of the paragraphs of Count I of the Petition, including Paragraphs 1, 2 and 14, and alleged a theory of recovery of reasonable expenses incurred as well as the reasonable value of services rendered defendants pursuant to the agreement of April 5, 1969.

A copy of this Third Amended Petition was mailed to the defendant’s attorney of record, Marshall Friedman, on the 14th day of March, 1975. On June 27,1975, plaintiff, by memorandum, amended his Third Amended Petition by deleting the letters “d/b/a” following “Rubin Leve” in the caption and inserted in lieu thereof, the word “and,” so, as amended, the caption read: “William Leve, Bessie Leve, Louis Leve, and Rubin Leve and Century Supply Company, a corporation.” A copy of a summons and of the petition was served on Louis Leve in both his individual capacity and as President of the Century Supply Company, a corporation, on August 4, 1975; service was also had on Rubin Leve by leaving a copy of the summons and the petition at his dwelling place or usual place of abode, with a person of his family over the age of 15 years, on August 4, 1975; Bessie Leve and William Leve could not be served because they could not be found in the City of St. Louis, Missouri, and a non est return was made as to these named defendants on August 5, 1975, stating that both defendants were deceased. On September 3, 1975, the defendants Louis Leve, Rubin Leve and Century Supply Company, a corporation, were granted until October 2, 1975, to file responsive pleadings with leave to reserve the right to raise all matters, by motion or otherwise, which could have been raised on the original return date.

On September 29, 1975, Louis Leve, Rubin Leve and Century Supply Company, a corporation, filed a Motion for Judgment on the Pleadings on the grounds that the cause of action alleged by the plaintiff was founded upon a purported oral contract entered into on or about April 5, 1969 and that he was wrongfully discharged in November, 1969; that an action was not asserted against these defendants nor any existing legal entity until March 14,1975, more than five years after his purported cause of action arose and, therefore, was barred by the Statute of Limitations, § 516.120 RSMo. 1969. On January 30,1976, this motion was called up and the parties were granted time to file memoranda of law. On February 24, 1976, the defendants Louis Leve, Rubin Leve and Century Supply Company, a corporation, filed jointly, a memorandum of law together with an affidavit of Norman I. Leve and a certified copy of the Certificate of Incorporation of the Century Supply Co., 1107 Franklin Avenue, St. Louis, Missouri, 63101, issued by the Office of the Secretary of State of Missouri on December 28, 1970. The affidavit of Norman Leve stated that on the date the affidavit was executed, February 12, 1976, he was the Secretary and Treasurer of Century Supply Co., a corporation, duly organized and existing under and by virtue of the laws of the State of Missouri; that Century Supply Co. was duly and properly incorporated within the State of Missouri on the 28th day of December, 1970, as evidenced by a copy of the Certificate of Incorporation which was attached to and made a part of his affidavit by reference; and that prior to December 28,1970, Century Supply Co. legally existed and conducted business as a Partnership, the individual partners being Louis Leve, Rubin Leve and Norman Leve.

On April 29,1976, defendants’ Motion for judgment on the pleadings was sustained and on May 6, 1976, plaintiff filed his Motion to Set Aside Order of April 29, 1976, and this motion was sustained on May 6, 1976. On May 17, 1976, plaintiff filed his Memorandum in Response to “Defendant’s (sic) Motion for Judgment On the Pleadings.” Attached to the memorandum was a certificate of Corporate Records containing the certificate of Incorporation of the Century Plumbing Supply Company dated August 3, 1938. The stockholders of this corporation were listed in the Articles of Incorporation as William Leve, Bessie Leve, Louis Leve, Clara Leve and Rubin Leve, and the Board of Directors for the first year of operation of the corporation were identified as William Leve, Bessie Leve and Louis Leve. Other attachments to the memorandum were copies of two letters to the Sheriff of the City of St. Louis — one dated September 4,1964 and the other January 15,1965 — on the letterhead of “Century Supply Company formerly Century Plumbing Supply Co.,” signed by Louis Leve, forwarding to the Sheriff certain checks in return to a garnishment action against one of the employees of the business.

On May 24,1976, the trial court sustained defendants’ Motion for Judgment on the Pleadings without specifying any grounds upon which the ruling was based.

On June 8, 1976, plaintiff filed a Motion for Rehearing and on June 29, 1976, this motion was overruled. On the same date counsel for the plaintiff withdrew with leave of court and present counsel entered his appearance on behalf of the plaintiff. On July 2, 1976 a Notice of Appeal and Jurisdictional Statement was filed by counsel for the plaintiff.

On July 14, 1976 the defendants filed documents in the office of the Clerk of the Circuit Court of the City of St. Louis identified as photostatic copies of records of the Secretary of State which, according to the memorandum filed on that date, had been utilized at the hearing on the motion for rehearing on June 29, 1976, for incorporation into the record on appeal. Both of these are documents filed pursuant to the requirements of the Fictitious Names Act. One of these documents, Exhibit B, states the name of the business to be “Century Plumbing Supply Co.” and the persons doing business under that name to be William Leve, Bessie Leve, Louis Leve, Clara Leve, and Rubin Leve. The location of the business was given as 1107-09 Franklin Avenue, St. Louis, Missouri. This registration was filed in the office of the Secretary of State on October 19, 1942. Exhibit A, the other document, listed the name of the business as “Century Supply Co.” and the place of business as 1107 Franklin. Street, St. Louis, Missouri. The names of the parties doing business under this name included William Leve, Bessie Leve, Louis Leve and Rubin Leve. This document was registered in the office of the Secretary of State on May 11, 1949.

The only question presented on appeal is whether the trial court erred in sustaining defendants’ motion for judgment on the pleadings because plaintiff’s cause of action was barred by the five year statute of limitations, § 516.120 RSMo. 1969.

The appellant contends that the judgment of the trial court was prejudicially erroneous because:

1) his Third Amended Petition, filed on March 13, 1975, naming these respondents as party defendants, relates back to the institution of this cause of action on April 9, 1970, pursuant to the provisions of Rule 55.33(c), and the defendants may not interpose the statute of limitations as a defense against his claim;
2) Century Supply Company, a corporation, voluntarily appeared in the case prior to the running of the statute and thereby waived the requirement for service of process upon it prior to the running of the statute;
3) Louis Leve was actually notified of the action before the statute of limitations had run because he had received service of process and a copy of the petition and any mistake in the name of the party defendant in the case was waived by his appearance and his failure to make a timely objection and defending on the merits;
4) respondent Century Supply Company was a corporation de jure or de facto by virtue of its incorporation in 1938, was sua-ble as a legal entity when the claim was originally instituted on April 9, 1970, and therefore the running of the statute of limitations was tolled when the original suit was instituted, or, the Century Supply Company is estopped to deny its corporate status by virtue of its conduct in creating the impression that it was a corporation and by filing its Answer to the plaintiff’s petitions, a general denial, which admits its corporate stature and that it was suable as such;
5) Century Supply Company, even though it was a partnership, was suable as an entity because it is estopped from denying liability on its contracts when it held itself out as capable of contracting as an entity;
6) whatever defect in its legal status was attributable to Century Supply Company prior to December 28,1970, was cured by its incorporation on that date, and since it was the same party which was originally sued, it was already in court prior to the running of the statute of limitations;
7) appellant’s cause of action was a “continuing one” for unjust enrichment and conversion in that each and every sale by the respondents made as a result of his labor or property rights entitles him to remuneration and there is nothing in the pleadings to indicate that all such sales stopped when the appellant’s services were terminated;
8) material issues of fact existed;
9) the running of the statute was tolled as to the partnership because the partners concealed their status until February 24, 1976, when they revealed their existence as a partnership and they failed to timely raise the defense of improper parties, thereby representing that they were the party named and served with process and thereby misleading the appellant so that he was prevented from bringing the suit against the proper parties prior to the running of the statute of limitations.

We initially point out that it is the plaintiff whose duty it is in the institution of a law suit to insure that he or she causes the proper party defendant to be brought before the court in which relief is sought for wrongs allegedly suffered. The plaintiff not only selects the defendant, but by doing so, initiates the service of process upon the said defendant whereby the forum in which the claim has been instituted acquires personal jurisdiction over the defendant to adjudicate the controversy between the parties. When this suit was instituted in April of 1970, Supreme Court Rule 3.09 and § 506.150 RSMo. 1969 (now Rule 54.13) governed personal service on parties defendant. In the case of a domestic corporation personal service shall be made by delivering a copy of the summons and petition to an officer, or managing or general agent, or by leaving the copies at any business office of the defendant with the person having charge thereof, or by delivering copies to its registered agent or to any other agent authorized by appointment or required by law to receive service of Process. In the case of a partnership, delivering a copy of the summons and petition to each partner was required. Van Natta v. Harroun Real Estate Co., 221 Mo. 373, 120 S.W. 738, 740[6] (1909); Davison v. Farr, 273 S.W.2d 500, 502 (Mo.App.1954).

In this case, the initial petition filed in Cause No. 14599-F, was served on “Century Supply Co., Mr. Louis Leve, Reg. Agent” on April 13, 1970. At that time there was no corporation by that name. Nevertheless an attorney entered an appearance for “Century Supply Co.” filed an Answer in the name of said defendant and subsequently filed motions to dismiss and objections to plaintiff’s motion to inspect. Thereafter, when defendant’s motion to dismiss was sustained with leave to plaintiff to file an amended petition, plaintiff, rather than file a pleading amending the petition in Cause No. 14599-F, chose to institute Cause No. 16058-F by the filing of a new petition on June 13, 1970. Again plaintiff identified the defendant as “Century Supply Company” and service of process was had on “the Century Supply Co., a corp. (a corporation)” by serving Louis Leve, as the registered agent of the corporation in the usual business office thereof.

In this state the filing of the petition with the court and issuance of summons forthwith by the clerk of the court is but a conditional halting of the statute of limitations and unless the party thereafter exercises due diligence in obtaining service of process, the statute continues to run. Votaw v. Schmittgens, 538 S.W.2d 884, 886[1] (Mo.App.1976).

It was not until March 13,1975, that the plaintiff amended the caption of the petition and identified the defendants in the case as four individuals “d/b/a Century Supply Company, a corporation” and alleged in paragraphs 1 and 2 of the petition that the named individuals were conducting a plumbing supply company under the name of “Century Supply Company” and that the defendant Century Supply Company was a domestic corporation. If, as plaintiff alleged, the expenses he incurred and the commissions he earned for which he sought damages were earned prior to the date of his discharge, on or about November 5, 1969, the five year statute of limitations would have run unless the provisions of Rule 55.33(c) apply.

Rule 55.33(c), as applicable to this case, provides that whenever a claim asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and if, within the period provided by law for commencing the action against him, the party to be brought in by the amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party the action would have been brought against him.

Although the motion pending before the trial court was a motion for judgment on the pleadings pursuant to the provisions of Rule 55.27(b), it is apparent from the transcript of the record filed in this court that matters outside the pleadings were presented by both parties, and, so far as we can ascertain, may have been considered by the trial court in ruling on the motion.

Among these matters outside the pleadings, i. e. the Third Amended Petition, which the parties presented to the trial court in support of and in opposition to the motion were the following documents attached to memoranda of law filed preliminarily to submission of defendant’s motion:

1) the affidavit of Norman I. Leve referred to hereinabove.
2) a certified copy of a copy of the Certificate of Incorporation of the Century Supply Co., issued by the Secretary of State on December 28, 1970.
3) a Certificate of Corporate Records containing the Certificate of Incorporation of the Century Plumbing Supply Company dated August 3, 1938.
4) photostatic copies of two letters on the letterhead of Century Supply Company, “formerly Century Plumbing Supply Co.” to the Sheriff of the City of St. Louis dated September 4,1964, and January 15, 1965, respectively.

Inasmuch as these documents were not part of the pleadings and were presented to and not excluded by the trial court, we must, as we expect the trial court did, in the absence of any record evidence to the contrary, abide by the Rule and treat the motion as one for summary judgment. Rule 55.27(b).

A trial court in considering a motion for summary judgment utilizes the pleadings, the depositions, and admissions on file, together with the affidavits, if any, to show that there is no genuine issue as to any material fact and whether any party is entitled to a judgment as a matter of law. Rule 74.04(c). An adverse party may not, when a motion for summary judgment is made and supported by affidavit, rest upon the mere allegations or denials in his pleadings. Rule 74.04(e).

The defendant-respondent has not challenged the relation back of the plaintiff’s Third Amended Petition on the grounds that the claim asserted therein did not arise out of the conduct, transaction or occurrence set forth or attempted to be asserted in any of the petitions filed by the plaintiff-appellant during the period prior to November 19, 1974. The challenge to the application of the relation back rule is directed to the failure of the plaintiff-appellant to sue defendant-respondent in its proper legal capacity prior to the running of the five year statute of limitations.

As we understand respondent’s argument, the Century Supply Company, incorporated, did not exist as a corporate entity at any time prior to the date of its incorporation on December 28,1970, when a certificate of incorporation was issued by the Secretary of State of Missouri. Between 1949 and the date of the filing of the petition in this cause on June 13, 1970, “Century Supply Company” was a partnership and this was a matter of public record by reason of the partnership’s filing a report in the office of the Secretary of State of Missouri pursuant to the Fictitious Name Act in 1949; nevertheless, plaintiff sued in the partnership name, and under Missouri law, a partnership may not be sued in its partnership name, but the partners making up the partnership must be sued individually and named as party defendants. Therefore, because plaintiff-appellant did not sue either the partnership or the corporation pri- or to the running of the five year statute of limitations, the filing of plaintiff-appellant’s Third Amended Petition on March 13, 1975, naming the individuals comprising the partnership and/or the corporation as party defendants, cannot relate back to the filing of the original petition in either this cause, or the prior cause, Cause No. 14599-F, and thereby avoid the impact of limitations. We disagree.

Rule 55.02 requires that every pleading shall contain a caption setting forth, among other items, the title of the civil action, and, in the petition, the title of the civil action shall include the names of all the parties. It is sufficient to aver the ultimate fact of the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, or the legal existence of a corporation, or of an organized association of persons that is made a party. Rule 55.13 provides that when a person desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, he shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader’s knowledge. When a party so raises such issue, the burden of proof thereon shall be placed upon the opposite party.

The difficulty with the petitions filed in this case prior to that of March 13, 1975, is that the named defendant in the title of the civil action in the caption is “Century Supply Company.” There is, in the petition proper, no title of the civil action including the names of all of the parties as required by Rule 55.13.

The word “Company” in the name con-. tained in the caption is a generic and comprehensive word which may include individuals, partnerships, and corporations. The term is defined in Ballantine’s Law Dictionary (3rd Ed.) as:

“Usually, but not necessarily, a corporation, since the word is inclusive of natural persons, 18 Am.J.2d Corp. § 4; a union of two or more persons for the carrying on of a joint enterprise or business; a partnership; a corporation.”

From the caption of the petition it is impossible to ascertain whether the Century Supply Company named as the “defendant” is a corporation, a partnership, or in what capacity it is being sued. However, the fact that the caption of the petition contained directions to serve the registered agent of the named defendant might cause one to conclude that that party is a corporation.

The record proves that service was had on Louis Leve as Registered Agent in the usual place of business of the named defendant and in charge of its office. It was in response to this service of process, together with a copy of the petition in the cause, which caused an Answer to be filed by an attorney who also has filed the Motion for Judgment on the Pleadings in behalf of both the partnership and the corporate defendants which was the reason for this appeal.

From our research we have learned that in the past, courts which have permitted relation back of amendments to the denomination of parties defendant after the running of the statute of limitations have proceeded on one or more of three theories: (1) that neglect of the plaintiff or his attorney in suing the wrong party was excusable, (2) that the defendant had misled plaintiff or “lulled” him into the feeling that he had sued the proper defendant when he had not, or (3) that the party actually sued and the party whom plaintiff meant to sue had sufficient “identity of interest” or were so closely connected that notice to one should suffice to inform the other of a pending claim for relief.

Plaintiff has offered no reason for his failure to ascertain the nature of the legal entity he named as defendant in this case, and with the discovery tools available to him it is difficult for us to conclude that he has any such excuse in the absence of what we have determined constituted a “lulling” of the plaintiff into the feeling that he had sued the proper party when he had not.

We do conclude, however, that this case fits into categories 2 and 3 of those theories upon which courts have permitted the relation back of amendments in the denomination of parties defendants, and we so hold.

We have found no Missouri appellate decisions where Rule 55.33(c) has been applied in the context of this case. We believe it is a case of first impression.

Respondent-defendant cites State ex rel. Jewish Hospital of St. Louis v. Buder, 540 S.W.2d 100 (Mo.App.1976) as authority for our denying relief to the plaintiff-appellant. However, this case is distinguishable, both factually and procedurally from the Jewish Hospital case. There, the issue was whether an amended petition seeking damages for wrongful death, filed after the expiration of the two year statute of limitations by a proper party, relates back to an original petition filed prior to the statute of limitations in the name of a party who had no standing to sue. This court held that relation back was barred.

However, in the Jewish Hospital case the capacity to sue issue was raised at the first opportunity by a motion to dismiss directed against the original petition which alleged that the petition contained no allegations sufficient to establish plaintiff’s capacity to sue, that it failed to state specifically that the action was one for wrongful death, and that the claim was barred by the statute of limitations. When the motion was called for hearing plaintiff had no counsel and was given thirty days to file an amended petition, and, after the statute had run, she filed a “first amended petition” alleging that she was the duly appointed administra-trix of her deceased mother’s estate. The Jewish Hospital filed a motion to dismiss directed against this first amended petition, identical in all respects to that it had previously filed against the original petition.

Subsequently, plaintiff filed a second amended petition, this time alleging that she was the duly appointed administratrix of her mother’s estate, that her mother died leaving no husband or minor children, and that she and her adult brother were her mother’s heirs at law. Again the Jewish Hospital raised the capacity of plaintiff to prosecute the wrongful death claim and the statute of frauds by a motion to dismiss. When the respondent judge indicated that he would overrule this motion unless a writ was obtained ordering him not to, Jewish Hospital applied for the writ which this court granted and made absolute for the reason heretofore stated.

However, as one may clearly detect, the capacity issue in Jewish Hospital was raised at the first opportunity as required by Rule 55.13, and the court did not have to consider the process question presented here in arriving at its holding.

Defendant-respondent also relies on Haney v. Thompson, 339 Mo. 505, 98 S.W.2d 639 (banc, 1936), a case involving a factual situation strikingly similar to the one here for decision. In Haney the original petition named the defendant as “Thompson Brothers Rock Company, a corporation,” and after the period of limitations had expired, the petition was amended to allege that the defendants were certain individuals doing business as partners under the name of “Thompson Brothers Rock Company.” The court there held that the statute of limitations was a valid defense and that the amendments did not relate back to the time of the filing of the original petition, because the court acquired no jurisdiction over the individual defendants prior to the time they were brought in by process directed against them individually after the amendment.

However, we are of the opinion that Haney is no longer the law in this state since September 1,1973, when Rule 55.33(c), adopted by the Supreme Court on January 19, 1973, took effect. Prior to the adoption of Rule 55.33(c) the courts of this state had no Rule on “relation back” and the law on this subject was decisional. Hawkins v. Hawkins, 533 S.W.2d 634, 638 (Mo.App.1976). Our Rule 55.33(c) is derived from Rule 15(c), of the Federal Rules of Civil Procedure as amended in 1966. Rule 15(c), as amended, shifted the emphasis in eases involving amendment of a complaint changing a party and whether said amendment might relate back to the filing of the original complaint so as to avoid the bar of the statute of limitations. The emphasis formerly was whether the court had acquired jurisdiction over the newly named parties. With the adoption of the Rule the question became one of whether that party had notice of the institution of the lawsuit prior to the time the limitations period had expired, so that he would not be prejudiced in maintaining his defense on the merits and he knew or should have known, that, but for a mistake concerning the identify of the proper party, the action would have been brought against him. In addition to the foregoing prerequisite, the plaintiff’s complaint, as amended, had also to satisfy the requirement of the Rule as it existed prior to the 1966 amendment, that the claim asserted in the amended complaint must have arisen from the same conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading. Simmons v. Fenton, 480 F.2d 133, 136-137[1, 3] (7th Cir. 1973). The court in Simmons pointed out that while state statutes of limitations are frequently geared to the filing of a complaint, Rule 15(c) is geared to notice.

We believe, that in adopting Rule 55.33(c) in identical phraseology of Rule 15(c), the Supreme Court of this state also intended to shift the emphasis in cases of this nature from the question of when jurisdiction attached to whether the parties brought in by amendment enjoyed the same protection afforded by Rule 15(c) to defendants in the federal judicial system.

Due to the fact we have no Missouri appellate decisions on this question we have referred to cases construing Rule 15(c) of the Federal Rules of Civil Procedure from which our Rule 55.33(c) is derived for some guidance.

A number of cases in both the District Courts and the Circuit Courts of Appeal have had occasion to construe Rule 15(c) F.R.C.P. in this context. See 11 A.L.R. Fed. 269, Anno., sufficiency of notice or knowledge required under Rule 15(c)(l)(2) of Federal Rules of Civil Procedure dealing with relation back of amendments changing parties against whom claim is asserted.

In a number of these cases the court has held that by participating in the proceedings and waiting until the statute of limitations has run, the party sought to be im-pleaded by the amendment to the complaint had, where notice was found, “lulled” the plaintiff into believing it had the proper party in court and no prejudice would flow to the defendant from the granting of the motion to amend. Adams v. Beland Realty Corporation, 187 F.Supp. 680 (E.D.N.Y.1960) [plaintiff sued defendant as a corporation and moved to amend complaint to allege partnership and obtain service of summons on partners]; Milner v. National School of Health Technology, 73 F.R.D. 628 (E.D.Pa.1977) [where, in an employment discrimination action the employee served the statutory notice on a corporate officer which corporation had, subsequent to the employee’s discharge and without the employee’s knowledge, changed from a sole proprietorship to a corporation]; and Wynne v. United States, 382 F.2d 699 (10th Cir. 1967) [suit instituted against defendant as a corporation when, in fact, defendant was a sole proprietorship].

In Slack v. Treadway Inn of Lake Harmony, Inc., 388 F.Supp. 15, 21[7] (M.D.Pa.1974), the court denied plaintiff’s motion to, amend but stated that if the party the plaintiffs sought to name in the amendment under Rule 15(c), or the party named in the original complaint, had knowingly allowed the plaintiffs to think they had sued the proper party defendant, or actually misled them as to the identity of the party who should be held responsible, the party being brought in by the amendment would be estopped from asserting a statute of limitations defense.

Defendant-respondent cites a number of eases where the courts in the federal system have refused to permit an amendment of a complaint to substitute a party defendant and permit the amendment to relate back to the original complaint would deprive the substituted party defendant of a defense of the Statute of Limitations. Among the cases cited by the defendant-respondent are: King v. Udall, 266 F.Supp. 747 (D.C.D.C.1967); Jacobs v. McCloskey and Company, 40 F.R.D. 486 (E.D.Pa.1966); Phillip v. Sam Finley, Inc., 270 F.Supp. 292 (N.D.Va.1967); Strauss v. Rex, 191 F.Supp. 128 (W.D.Pa.1960); Lomax v. United States, 155 F.Supp. 354 (E.D.Pa.1957); and Davis v. L. L. Cohen & Company, Inc., 268 U.S. 638, 45 S.Ct. 633, 69 L.Ed. 1129 (1925). We have researched these cases and find them inap-posite to the facts- of this case. In each of these cases the question whether the party defendant was the proper party was brought to the attention of the trial court promptly; and in Lomax, the trial court commented upon the fact that the plaintiff had waited until nine days before the statute of limitations had run before obtaining service on the defendant and said that had the defendant filed its answer within those nine days prior to the running of the limitations period thereby “lulling” the plaintiff into believing that his action was properly brought, the court would have been more sympathetic to the plaintiff’s appeal.

The Supreme Court of Delaware, in Mergenthaler, Inc. v. Jefferson, 332 A.2d 396 (1975) had occasion to consider “Superior Court Rule 15(c),” a Rule identical to Rule 15(c) F.R.C.P., in a case where the plaintiff instituted a suit for personal injuries sustained on March 15,1969, while a passenger in a bus which was collided with by a bus owned by an individual, Lawrence E. Mer-genthaler, who was doing business as Mer-genthaler’s Bus Service, naming as defendant “Mergenthaler Inc., a Delaware corporation.” The complaint was filed on March 12, 1971, and Mr. Mergenthaler was served with process on March 16, 1971. Sometime after the collision and before the complaint was filed, the sole proprietorship was incorporated. It was undisputed that the corporate entity was not in existence when the complaint was filed. Plaintiff was granted leave to amend the complaint and add the predecessor entity — Mergenthaler’s Bus Service — and Mr. Mergenthaler, individually, as defendants, and to relate back the amendment to the date on which the complaint had been filed. The Delaware statute of limitations in such cases was a two year limitation.

On appeal, the trial court was reversed and the cause was remanded with directions to give the plaintiffs an opportunity to show that the notice requirements were met and, in any event, without prejudice to the plaintiff’s claim that the corporate defendant assumed the obligation of its predecessor.

The same court, in Annone v. Kawasaki Motor Corp., 316 A.2d 209 (1974) applied the same Superior Court Rule 15(c) to a case wherein the plaintiff filed his complaint against a motorcycle manufacturer and “David P. Trainer t/a Delaware Cycle Center” from whom he allegedly purchased a motorcycle which he was operating on May 19, 1970, when he sustained the injuries for which he sought damages by reason of a malfunction of the motorcycle. Plaintiff filed his petition approximately six weeks prior to the running of the statute of limitations. Trainer filed an answer alleging that he did not trade as Delaware Cycle Center and had not sold a motorcycle to the plaintiff; he also filed a motion for summary judgment accompanied by an affidavit stating that at the time of the sale of a motorcycle to the plaintiff he was an officer of the Delaware Cycle Center, Inc., a Delaware corporation, which had been incorporated June 6, 1968, and that at no time since the formation of the corporation had he traded as Delaware Cycle Center, nor sold a motorcycle to the plaintiff. Plaintiff thereupon sought to substitute Delaware Cycle Center, Inc., for David T. Trainer t/a Delaware Cycle Center by amendment of the complaint pursuant to the authority of Superior Court Rule 15(c). He filed an affidavit stating that prior to commencing the action he had contacted the office of the Secretary of State, Corporations Division, and was “erroneously informed” that no corporation by the name of Delaware Cycle Center, Inc., existed at that time. The trial court denied plaintiff’s motion and granted Trainer’s motion for summary judgment.

In reversing the judgment of the trial court, the Delaware Supreme Court held that the prerequisites of Rule 15(c) had been satisfied because (1) the claim asserted in the amended pleading arose out of the “conduct, transaction, or occurrence” alleged in the original complaint and “beyond doubt Delaware Cycle Center, Inc., received such notice of commencement of the action that it will not be prejudiced in defending on the merits, for if the suit had been brought against the corporation, service on Trainer, its president, would have been valid. . . . Further, since Trainer actually received notice of commencement of the action, the corporation ‘knew or should have known, but for a mistake concerning the identity of the proper party, the action would have been brought against’ it.”

The Mergenthaler opinion, written by the same justice who had written the Annone opinion, distinguished the Annone holding on the grounds that in the Mergenthaler case there was nothing in the record to show that notice of institution of the action, “i. e., the finding of the lawsuit,” was given within the statutory period to the “defendants to be brought in.” The basis for this distinction is that in Annone a corporation was in existence at the time the complaint was filed and service was obtained on its president; in Mergenthaler, when the complaint was filed there was no corporation in ■existence and there could be no service on any officer or registered agent of said corporation. The court was unwilling to hold that service on Mr. Mergenthaler on March 16, 1971, for the non-existent corporation was sufficient to satisfy the notice requirements of Rule 15(c) with respect to himself as an individual or the predecessor “entity” under which he was conducting his bus business, “Mergenthaler’s Bus Service.”

As we view this case, inasmuch as the corporate defendant was not in existence at the time this suit was instituted and service obtained on Louis Leve, a partner in the partnership doing business as the named defendant “Century Supply Company,” the entry of appearance by Mr. Friedman on behalf of the named defendant, without any indication on his part as to whom he was representing, constituted a general appearance on behalf of the partnership. It was impossible for him to represent a non-existent corporation. We are cognizant of the absence of any contention by the partnership that Mr. Friedman did not represent them at the time he filed the pleadings in the initial cause of action on the 25th of April, 1970. This charade was continued when plaintiff-appellant instituted this present suit by filing a petition alleging the same cause of action against the Century Supply Company on June 13, 1970, at which time the corporation still had not come into existence. It is a reasonable inference that if Mr. Friedman represented anyone, he represented the partnership doing business under that name. In the absence of any evidence to the contrary, we believe the notice essential to authorize the amendment pursuant to the saving provisions of Rule 55.33(c) have been satisfied.

We further conclude that by his failure to challenge the capacity in which the defendant was sued as required by Rule 55.13 and proceeding through these many months while the statute of limitations would have run, counsel for the defendant-respondents lulled the plaintiff into a feeling that he had sued the proper party defendant. Counsel continued said “lulling” until the running of the statute of limitations would have barred plaintiff-appellant’s claim.

Insofar as bringing in the corporate entity is involved in our holding, we believe that the third theory mentioned above justifies our holding that summary judgment was not a proper remedy in this case in the state of the record. We believe, as we shall hereinafter show, that the “identity of interest” theory is applicable to the facts of this case or at least there is a viable issue of fact whether, as plaintiff-appellant has alleged in his amended petition, the corporate defendant has succeeded to the liabilities, if any, of the partnership.

We discern from the record on appeal that essentially this same group of individuals have conducted this same business, initially under the name Century Plumbing Supply Company after its incorporation in August, 1938, until October 19, 1942. At that time they registered the name Century Supply Company with the office of the Secretary of State pursuant to the requirements of the Fictitious Name Act and conducted the business under that name. Four of the five persons doing business under that name (all but Clara Leve) again registered the name Century Supply Company on May 11,1949; in each instance the place of business was 1107-09 Franklin Avenue, St. Louis, Missouri. The letters to the office of the Sheriff of the City of St. Louis in 1964 and 1965, over the signature of Louis Leve, afford evidence that the Century Supply Company doing business at that time was “formerly known as Century Plumbing Supply Company.” The extant corporation, Century Supply Company, was not incorporated until December 28, 1970, some ten months after the institution of the original suit and approximately six months after the institution of this lawsuit, and after service on Louis Leve as “registered agent” in each case. Despite the fact the defendant-respondents’ counsel of record filed the Certificate of Incorporation of Century Supply Co. with the trial court in support of their motion for judgment on the pleadings, we note that he did not file the Articles of Agreement of said corporation wherein the names of the incorporators would appear so that the trial court could ascertain the persons who incorporated the corporate defendant-respondent and thereby determine if they were the same persons who admittedly conducted the partnership business under the same name.

Plaintiff-appellant has alleged in his Third Amended Petition, Paragraph 14, that the corporate defendant has succeeded to all of the interests, rights, liabilities and obligations of the partnership under his agreement with Century Supply Company. We conclude that these allegations, together with the other items of evidence set out above, present an issue of fact whether the corporate defendant is the successor to the partnership which the defendant-respondents contend was doing business under the name Century Supply Co., and whether the corporation by the same name is a successor in interest which might be subject to any liability under the quantum meruit theory; therefore the trial court erred in sustaining defendant-respondents’ motion. Rule 74.-04(h).

Judgment of the trial court is reversed and the cause is remanded.

All Judges concur.

      . The record does not contain an Answer to this Third Amended Petition nor is there any record entry to the effect that the defendants named therein refiled and joined in the Answer filed by Century Supply Company in response to Appellant’s Second Amended Petition wherein the proper party question first surfaced. A motion in this nature should be filed “After the pleadings are closed.” Since this point was not raised, we do not reach it.

      . At the time plaintiff-appellant’s Third Amended Petition was filed Franklin Avenue had been renamed Martin Luther King Drive.


source: Caselaw Access Project

author: JOSEPH 0. FULLER, Special Chief Justice. JOSEPH 0. FULLER, Special Chief Justice.

license: Public Domain

text:
    Robert L. TAYLOR v. TENNESSEE STATE DEMOCRATIC EXECUTIVE COMMITTEE, etc., and William H. D. Fones, et al.
    Supreme Court of Tennessee.
    July 10, 1978.
    Rehearing Denied Dec. 21, 1978.
    Fyke Farmer, Nashville, for appellant.
    J. 0. Bass, Frank C. Gorrell, Bass, Berry & Sims, George E. Barrett, Barrett, Brandt & Barrett, Robert H. Roberts, Advocate Gen., Nashville, J. Alan Hanover, Hanover, Walsh, Barnes & Jalenak, Thomas R. Prew-itt, Memphis, for appellees.
   OPINION

JOSEPH 0. FULLER, Special Chief Justice.

There are two cases before the Court which have been consolidated for purposes of appeal. Both cases grow out of the nomination on June 1, 1974 of the defendant, William H. D. Fones, as a Democratic candidate for Justice of the Supreme Court. Although Fones was the only nominee named as a defendant in these suits, the allegations, of necessity, are applicable to the four other nominees selected on that date and subsequently elected in the general election of August 1, 1974. Because of their interest in the outcome of these appeals, the members of the Supreme Court recused themselves and, pursuant to Article 6, Section 11 of the Constitution of the State of Tennessee, the present panel was selected by the Governor of the State of Tennessee to hear and determine these matters.

Both cases involve the same parties and allege the same basic facts. The first lawsuit was filed in the Chancery Court of Davidson County on July 26, 1974 and sought to have the nomination of William H. D. Fones as a Democratic candidate for Justice of the Supreme Court declared null and void. The complaint initially alleged that the nomination of Defendant Fones had been obtained by means of a fraudulent conspiracy among certain unnamed persons, some of whom were members of the Tennessee State Democratic Executive Committee, a defendant herein.

The complaint was later amended to allege that under the rules of the State Democratic Party, the Democratic Executive Committee had no power to nominate candidates for Justice of the State Supreme Court, and that the nomination of Defendant Fones by said Committee was void.

The statutory authority by which the Committee acted is found in Tennessee Code Annotated, Section 2-1315, which provides, inter alia, that the Executive Committee

“may nominate their candidates for any office other than those listed in Section 2-1314 by any method authorized under the rules of the party or by primary election under this title. Persons nominated other than by primary shall be immediately certified to the coordinator of elections by the chair[man] of the nominating body.”

The complainant’s amended complaint alleges that the method utilized by the Executive Committee was not authorized under the rules of the Party as required by the foregoing statute. However, it is conceded by the complainant that no appeal from this process was taken to the Democratic Primary Board.

The defendants filed motions to dismiss the complaint on various grounds. Subsequent thereto the Chancellor in a memorandum opinion granted the motions to dismiss as to all defendants, and from the order of dismissal, plaintiff appeals to this Court.

The other lawsuit was filed in the Chancery Court of Shelby County on August 12, 1974, eleven (11) days after Defendant Fones was elected by the popular vote of the citizens of this state to the judicial office, for which he had been nominated. The complaint, as amended, alleged the same facts and circumstances as those in the Davidson County suit, stating however that it was brought pursuant to Tennessee Code Annotated Section 2-1701 as an “election contest”. Again, motions to dismiss were filed by the defendants which were subsequently granted by the Chancellor, and from said ruling plaintiff has appealed.

Plaintiff’s attack in both complaints is directed toward the nomination, not the election, of Defendant Fones. Both lawsuits contest the title to the nomination of the Democratic candidacy for Justice of the Supreme Court of Tennessee from the Western Grand Division. The chancery courts of this state do not have jurisdiction of this subject matter. At common law there existed no right to contest in the courts the title to nomination of a political party for office; and therefore no such right exists unless specifically provided by statute. 29 C.J.S. Elections § 148, p. 421; Heiskell v. Ledgerwood, 144 Tenn. 666, 234 S.W. 1001 (1921). There is no such statute in this state. T.C.A. § 2-1701 confers exclusive jurisdiction on the chancery courts for election contests, not nomination contests.

However, that is not to say that plaintiff was without a remedy. It is the Court’s opinion that under Tennessee Code Annotated § 2-1704, plaintiff had a statutory right to contest the nomination, but that it was the State Primary Board of the Democratic Party, not the chancery courts, which had exclusive jurisdiction to dispose of such a contest.

It is apparent from a reading of the seventeenth chapter of the election code that the legislative intent was that intra-party squabbles over the nominating procedures are to be considered a political matter which are to be resolved by the party itself without judicial intervention. The party machinery is much better equipped than the courts to resolve such a dispute with the speed and finality that is required to preserve the integrity of the democratic, election process.

The complaint filed in Shelby County alleges no irregularities in the general election of August 1, 1974. Likewise, there are not allegations of any constitutional disqualifications on the part of Defendant Fones. Thus, although the complaint terms itself an “election contest”, it is no more than a contest of the nomination and fails to come under the purview of Tennessee Code Annotated § 2-1701.

This Court does not pass upon the method used by the Democratic Party in the selection of its nominees for judicial office. It does hold that, under existing Tennessee statutes, the complainant’s redress, if any, rests with the State Democratic Primary Board rather than the Chancery Court.

In conclusion, it should be stated that even if the chancery courts had jurisdiction to hear plaintiff’s complaints, the defendants could very well rely on the affirmative defense of laches. Plaintiff conceded in oral argument that he now primarily relies on the theory that the Executive Committee had no power to nominate candidates for the Supreme Court. Plaintiff voluntarily and quite actively participated as a candidate in the nominating process which he now alleges was an unlawful procedure. After failing to obtain his party’s nomination, he chose to take no action for a period of eight (8) weeks while the nominee, the Democratic Party, and the entire election machinery of the state prepared for the general election. Plaintiff, by his own conduct created a situation where the doctrine of laches would apply.

The defendant and cross complainant Democratic Executive Committee has sought damages, fees, and its reasonable costs against the plaintiff; the Court finds no just cause for the award of damages therein.

For the reasons heretofore stated the order of dismissal in each of the cases is affirmed. The costs are taxed to the plaintiff.

R. LEE WINCHESTER, Jr., JACK M. IRION, M. WATKINS EWELL, Jr. and JOHN MORGAN, Special Justices, concur.

OPINION ON PETITION TO REHEAR

JOSEPH 0. FULLER, Special Chief Justice.

A Petition to rehear has been filed by the Appellant. After careful consideration of same, the Court is of the opinion that the Petition to rehear does not meet the requirements set forth in Rule 32 of this Court. No new argument has been made, no new authority has been adduced by the Appellant, and no material fact has been overlooked by the Court. Therefore, the Petition to Rehear is denied.

R. LEE WINCHESTER, Jr., JACK M. IRION, M. WATKINS EWELL, Jr. and JOHN MORGAN, Special Justices, concur.


author: COOPER, Justice.

text:
    MFA MUTUAL INSURANCE COMPANY, Petitioner, v. Lyle M. FLINT and wife, Delma Flint and Perry Butler and wife, Sherry Butler, Respondents.
    Supreme Court of Tennessee.
    Dec. 11, 1978.

      Jerry D. Kizer, Jr., Menzies, Rainey & Kizer, Jackson, for petitioner.
    Max D. Lucas, Jr., Tenn. Defense Lawyer’s Assoc., Memphis, amicus curiae.
    Phillip G. Hollis, Peeler & Hollis, Camden, for respondents.
   OPINION

COOPER, Justice.

Certiorari was granted in this case to clarify the duty owed by an insurance company to its insured in settling a claim of its insured under the uninsured motorist provision of an automobile liability insurance policy. There is also the question whether MFA Mutual Insurance Company breached its duty in settling the claims of respondents.

The respondent, Lyle Flint, was issued an automobile liability insurance policy by MFA, which also provided medical payment coverage of $2,000.00 for each person, and uninsured motorist coverage of $25,000.00 for each person and $50,000.00 for each accident.

On March 13, 1975, while driving the insured automobile and with her daughter, Sherry Butler, as a passenger, Mrs. Flint was involved in an automobile collision. Both Mrs. Flint and Mrs. Butler sustained disabling personal injuries.

The driver of the other automobile was an uninsured motorist within the meaning of the policy issued by MFA. Both Delma Flint and Sherry Butler were insureds within the policy definition and were within the uninsured motorist coverage.

On investigating the accident, MFA determined that Delma Flint was guilty of no negligence and that the collision was solely the fault of the driver of the other automobile. An adjuster for MFA then effected a settlement with respondents, paying the wages lost by Mrs. Flint and Mrs. Butler and that part of their medical expenses not paid under other insurance policies owned by respondents.

Thereafter, an action against the Flints was filed by parties in the other automobile. MFA notified the Flints that the exposure of the Flints was in excess of their policy limits. The Flints consulted an attorney, who, upon learning of the basis of settlement of the respondents’ claims, filed actions in the chancery court for rescission or reformation of the releases claiming that the actions of MFA showed bad faith, breach of fiduciary duties, fraud and misrepresentation.

On trial, the chancellor found the MFA had dealt with respondents “in bad faith and in such a way that [its] conduct in the procuring of the releases shocked the conscience of the court.”' The chancellor then entered a decree setting the releases aside.

The Court of Appeals affirmed the chancellor’s action, the majority holding that:

. [A]n insurer, when attempting to settle a claim of its insured under the uninsured motorist coverage, owes the insured a much higher duty than it would owe to a tort claimant when settling a claim against the insured under the liability coverage of the policy. Under the circumstances presented here, the duty owed by the insurer to its insured rises to that of fiduciary. The utmost good faith is required. The facts of coverage, the amount of coverage, the position of the parties and the effect of settlement must be fully revealed to the insured, and the insurer must see that the necessary steps are taken to reveal to the insured complete information as to the nature and extent of the injuries suffered.” (emphasis supplied)

Petitioner insists there can be no fiduciary relationship between the insurer and its insured when the insurance company is settling a claim directly with its insured — that the relationship is merely a contractual one measured by the terms of the insurance contract.

We agree generally that no fiduciary relationship exists between an insurer and its insured when the company is settling a claim directly with its insured, but it does not necessarily follow that the insurer owes no duty that is not specifically spelled out in the contract drawn by the insurer. As noted in Bowler v. Fidelity and Casualty Company of New York, 53 N.J. 313, 250 A.2d 580 (1969), which involved a limitation of time to sue on a policy of disability insurance:

Insurance policies are contracts of the utmost good faith and must be administered and performed as such by the insurer. Good faith “demands that the insurer deal with laymen as laymen and not as experts in the subtleties of law and underwriting.” [Citations omitted]. In all insurance contracts, particularly where the language expressing the extent of the coverage may be deceptive to the ordinary layman, there is an implied covenant of good faith and fair dealing that the insurer will not do anything to injure the right of its policyholder to receive the benefits of his contract. This covenant goes deeper than the mere surface of the writing. When a loss occurs which because of its expertise the insurer knows or should know is within the coverage, and the dealings between the parties reasonably put the company on notice that the insured relies upon its integrity, fairness and honesty of purpose, and expects his right of payment to be considered, the obligation to deal with him takes on the highest burden of good faith. 250 A.2d 580 at 587.

The duty to deal with its insured fairly and in good faith has been imposed upon an insurer settling a claim made by its insured under the uninsured motorist provision of an automobile liability insurance contract, though not universally so. See Craft v. Economy Fire and Casualty Co. (7th Cir., 572 F.2d 565 (1978)); Richardson v. Employer’s Liability Assurance Corp., 25 Cal.App.3d 232, 102 Cal.Rptr. 547 (1972). But see Baxter v. Royal Indemnity Co., 285 So.2d 652 (Fla.App.1973). In opting for the imposition on the insurer of the duty of dealing with its insured “fairly and in good faith,” the court pointed out in Craft v. Economy Fire & Casualty Co., supra, that:

[The] theory that the existence of a good faith duty is totally incompatible with the substituted liability nature of uninsured motorist coverage and the consequent adversary relationship between insurer and insured is not convincing. Uninsured motorist coverage represents substituted liability only in the sense that a determination that the uninsured motorist is legally liable to the insured is a condition precedent to the obligation of the insurer to pay off on the policy. In this determination the insurer stands in the shoes of the uninsured motorist with regard to the question of whether the latter was negligent and with regard to his defenses such as contributory negligence. This does not make the insurance company an insurer in fact of the uninsured motorist. Their relationship is not characterized by the rights and duties normally incident to the relationship between an insured and his insurer under a third party liability policy. Moreover, it does not make the insurer a stranger to its insured. After all, the insured is the one who pays the premiums for the uninsured motorist protection and the “reasonable expectation” that he will be dealt with fairly and in good faith by his insurer is still present.
* * * * * *
. In the uninsured motorist situation there is no element of “control” of the insured’s side of the litigation by the insurance company which would give rise to a “fiduciary” duty. It does not necessarily follow that the insurer is completely free of any obligation of good faith and fair dealing to its insured, since the latter duty is based on the reasonable expectations of the insured and the unequal bargaining positions of the contrac-tants, rather than the insurance company’s “control” of the litigation. 572 F.2d 565, 568-569.

We think the position taken by the court in Craft v. Economy Fire and Casualty Company, supra, more nearly conforms with an insured’s expectations on purchasing uninsured motorist coverage, and more nearly protects the rights of all parties to the insurance contract. We hold, therefore, that an insurer is under the duty of dealing with its insured “fairly and in good faith” in settling a claim by its insured under the uninsured motorist provision of an automobile liability insurance contract.

Did MFA deal fairly and in good faith with respondents in settling their claims? The chancellor expressly found that it did not — that MFA dealt with respondents “in bad faith and in such a way that its conduct in the procuring of the releases shocked the conscience of the court.” We agree with the chancellor’s assessment of MFA’s actions.

The evidence shows that on June 10,1975, Chaimas B. Carpenter, an adjuster with seventeen years experience, but employed by MFA for only one week, went to the home of the Flints. At the time, he knew that MFA had determined that it was liable to respondents under the uninsured motorist coverage of the contract of insurance. He further knew that Mrs. Flint had suffered severe and painful personal injuries, not the least of which was the loss of a knee cap, and that she was permanently disabled. He further knew, or learned soon after arriving at the Flints from questions asked him, that the Flints did not know the extent of the coverage afforded them under the uninsured motorist provision of the policy. Though Mr. Carpenter testified to the contrary, we think it evident from the testimony of the Flints and from the negotiations between the parties that Mr. Carpenter did not tell the Flints that uninsured motorist coverage covered “bodily injury” as well as medical expenses and lost earnings. Though cognizant of the fact that the liability of the uninsured motorist was absolute, Mr. Carpenter told the Flints he would pay the medical expenses of Delma Flint which had not been paid by her group medical coverage and would pay for her lost earnings, plus, he would “give her” an additional month of wages. He made no mention of compensation for past or future pain and suffering, future loss of earning capacity, or past or future loss of enjoyment from restricted activities due to what Mr. Carpenter admittedly knew was a permanent injury. Mr. and Mrs. Flint executed an uninsured motorist receipt and trust agreement in exchange for a draft issued by Mr. Carpenter.

Thereafter, Lyle Flint accompanied Mr. Carpenter to the home of Sherry Butler and was present when settlement of her claim was negotiated. Mr. Carpenter made no explanation to Mrs. Butler as to her rights under the policy, but told her the terms of the settlement with her parents and made an offer to settle her claim on the same basis, that is, to pay the balance of her medical bills and loss of wages. Although the accident was admittedly the fault of the uninsured motorist, payment to the Butlers was made under the liability provisions of the policy, rather than under the uninsured motorist coverage, and a release of the Flints taken, rather than an uninsured motorist receipt and trust agreement.

Mr. Carpenter testified frankly that Mrs. Flint’s claim was worth more money than the Flints’ were paid and that he would have paid more in settlement of the claim, had the Flints asked for more. This testimony is in keeping with the statement made by him in reporting his actions to his immediate supervisor that “under the circumstances of Mrs. Flint being permanently disabled, I feel this [the settlement of the claim by payment of a part of the medical expenses and loss of wages] to be a very reasonable settlement. I therefore proceeded to have them execute a release and issued them a draft payable to both.”

Keeping in mind the fact that there was never any question but that the uninsured motorist was solely responsible for the accident and that MFA was liable to respondents under the uninsured motorist provision of the policy, the duty of MFA to deal with its insured “fairly and in good faith” required Mr. Carpenter to inform respondents as to the extent of coverage afforded them under the MFA policy before negotiating a settlement, especially since it was apparent to Mr. Carpenter that respondents did not know the coverage. This Mr. Carpenter did not do. Instead, he took advantage of respondents’ ignorance to negotiate a settlement for a grossly inadequate consideration. He was able to do this by leaving out of the negotiations damages due to be paid respondents for personal injuries. Under the circumstances of this case, this action by Carpenter is clearly bad faith and overreaching and breaches the duty MFA owed respondents to deal with them fairly and in good faith.

The decree of the chancellor setting aside the releases executed by respondents is affirmed. Costs of the action are adjudged against MFA Mutual Insurance Company and its surety.

HENRY, C. J., and FONES, BROCK and HARBISON, JJ., concur.


author: BROCK, Justice.

text:
    BELLE-AIRE VILLAGE, INC. and Brooks McLemore, Attorney General of the State of Tennessee, Appellants, v. Lowin GHORLEY, Appellee.
    Supreme Court of Tennessee.
    Dec. 15, 1978.

      Higgins, Biddle & Chester, Athens, for appellant Belle-Aire Village, Inc.
    David S. Weed, Asst. Atty. Gen., Nashville, for appellant Brooks McLemore, Jr., Atty. Gen. of Tenn.
    Jerry N. Estes, Athens (Hutchins <& Estes, Athens, of counsel), for appellee.
   OPINION

BROCK, Justice.

Belle-Aire Village, Inc., filed this action under the provisions of T.C.A., § 67-612, to recover from Lowin Ghorley, the sum of $47.85, representing property taxes paid to the City of Athens, in the sum of $17.60, and McMinn County, in the sum of $30.25, for the year 1975. These taxes were assessed against a mobile home owned by Ghorley and located on a lot which Ghorley leased from Belle-Aire Village, Inc., during the taxable year. These taxes had been paid by Belle-Aire Village pursuant to T.C.A, § 67-612, and Belle-Aire Village was seeking reimbursement from Ghorley, the owner of the mobile home, as authorized by that code section. Belle-Aire also sought a first lien on Ghorley’s mobile home as authorized by the same code provision.

The case was filed in the General Sessions Court for McMinn County and, following its dismissal by that court, was appealed by Belle-Aire Village to the Circuit Court for McMinn County. In the circuit court, Belle-Aire sought to amend its complaint to seek a judgment for interest on the delinquent taxes and also a 10 percent attorneys fee for collecting delinquent taxes and for such other relief as it might be entitled to receive under T.C.A., §§ 67-1801 et seq., 67-1901 et seq., and 67-2001 et seq. Ghor-ley answered the complaint, denying that he owed any sum to Belle-Aire, and asserted that T.C.A., §§ 67-612, 67-1801 et seq., 67-1901 et seq. and 67-2001 et seq. were unconstitutional. The case was tried in the circuit court upon a stipulation of the facts and resulted in a judgment in favor of Belle-Aire Village, Inc., for the amount of the 1975 taxes paid on defendant Ghorley’s mobile home. The circuit court, however, denied the plaintiff’s prayer for the fixing of a first lien on the defendant’s mobile home, holding that the portion of T.C.A., § 67-612, which provides for such a lien was unconstitutional because it is too vague, indefinite and ambiguous and would deprive the mobile home owner of property without due process of law. The Attorney General of Tennessee and Belle-Aire Village, Inc., have appealed to this Court and assert that the Circuit Court erred in holding that any portion of T.C.A., § 67-612, was unconstitutional.

T.C.A., § 67-612, represents an attempt by the Legislature to implement Article II, Section 28, of the Constitution of Tennessee which was proposed by the limited Constitutional Convention of 1971, approved by the people in an election on August 3, 1972, and became effective January 1, 1973. That portion of Article II, Section 28, which is pertinent here provides as follows:

“House trailers, mobile homes, and all other similar movable structures, used for commercial, industrial, or residential purposes shall be assessed as real property as an improvement to the land where located.”

The obvious purpose of this provision was to provide an effective manner for taxing mobile homes which had proliferated in the years immediately prior to the convention. The method chosen was to treat them as real property by taxing them as improvements to the land where located, thereby making such land liable for the taxes on the mobile homes. See New York Mobile Homes Association v. Steckel, 9 N.Y.2d 533, 215 N.Y.S.2d 487, 175 N.E.2d 151, 86 A.L. R.2d 270 (1961).

Following the approval of Article II, Section 28, of the Constitution of Tennessee, the Legislature enacted T.C.A., § 67-612, which provides as follows:

“Any movable structure and appurtenance which is attached to real property by virtue of being on a foundation, or being underpinned, or connected with any one utility service such as electricity, natural gas, water, or telephone shall be assessed for tax purposes as real property as an improvement to the land where located; however, in cases where said movable structures are attached to land occupied and used as trailer or mobile home parks where the owner of said land is renting spaces or lots for maintaining said movable structures, the owner of said movable structures shall be responsible for the additional tax imposed by reason of the improvement and the owner of said land shall be granted a lien against said movable structure to secure the payment of said municipal and county taxes. Said lien shall constitute a first lien against said movable structure. Any such tax shall be collectible by the owner of said mobile park on a fiscal year basis, or in the alternative the owner of said mobile park shall have the right to collect said tax by the month on a pro rata share, along with any monthly rents due him . . . ” (Emphasis added.)

One of the arguments advanced in the trial court was that the lien provided for the mobile home park owner against a mobile home was a “tax lien” which could constitutionally be granted only to the state, county or municipal government, not to a private citizen. It is our opinion, however, that the lien granted to the landowner is not a “tax lien.” The lien is not granted to the state, county or municipal government but to the landowner. Neither does it secure the payment of taxes to a governmental entity; instead, it secures the landowner’s claim for reimbursement against the owner of the mobile home for the amount of taxes on the mobile home which the landowner has already paid.

Since the lien in question is not a “tax lien,” it follows that the owner of land used as a mobile home park is not entitled to the remedies and benefits provided by T.C.A., §§ 67-1801 et seq., 67-1901 et seq. and 67-2001 et seq., all of which deal with tax liens. Under the statutory scheme provided by T.C.A., § 67-612, the mobile home park owner is not the tax collector but is the taxpayer for the taxes due on the real property which includes taxes allocable to the mobile homes situated thereon. Only the government may take advantage of the provisions of T.C.A., §§ 67-1801 et seq., 67-1901 et seq. and 67-2001 et seq.

The trial court, in large part, based its decision upon the conclusion that the lien provisions of T.C.A., § 67-612, if considered to be merely a statutory lien in favor of the landowner, as we have herein-above concluded, were too vague to permit enforcement because no provisions were made for recording the lien or for a statute of limitations for enforcement of the lien, and that the uncertainties caused by these defects would severely diminish the value of mobile homes, thereby depriving their owners of due process of law. We do not agree.

Statutes relating to the same subject matter should be construed together. Brundige v. Alexander, Tenn., 547 S.W.2d 232 (1976). We, therefore, should construe T.C.A, § 67-612, insofar as it pertains to a lien, in pari materia with T.C.A., § 64-2101, which provides for the enforcement of liens on personalty when no method of enforcing them is otherwise provided. When so construed, adequate means for enforcing the lien in question are provided. Although the mobile home is treated as real property for tax purposes, it is treated as personal property for purposes of allowing the lien in favor of the landowner, as provided by T.C.A., § 67-612. Therefore, there is no impediment to the employment of T.C.A., § 64-2101, for the enforcement of this lien, although T.C.A., § 64-2101, provides for the enforcement only of liens upon personal property.

The trial court also expressed fear that since the mobile home park owner is under no compulsion to enforce his “first” lien, nor to record it, the value of mobile homes may be adversely affected because of the confusion which will result concerning titles to such property. We do not consider it proper to attempt to foresee and to determine problems of priorities that might arise respecting the lien in question other than to point out that T.C.A., § 64-2101, which we hold herein provides the procedure for enforcement of the lien in question, does give ample protection to innocent purchasers for value.

We affirm the judgment of the trial court insofar as it allowed Belle-Aire Village, Inc., to recover from Lowin Ghorley the taxes paid by it, but, for the reasons hereinabove expressed, we reverse its conclusion that a lien in favor of Belle-Aire Village, Inc., should not be allowed and that the lien provisions of T.C.A., § 67-612, here-inabove quoted, was unconstitutional. Accordingly, this cause is remanded to the trial court for such further proceedings as are consistent with this Opinion. Costs are adjudged against appellee, Lowin Ghorley.

HENRY, C. J., and FONES, COOPER and HARBISON, JJ., concur.

      . A similar procedure in New York state was held to be constitutional against the claim that the procedure denied due process of law to mobile home owners.


author: FONES, Justice.

text:
    Terri W. ROSEBERRY, Petitioner, v. Linda LIPPNER, Respondent.
    Supreme Court of Tennessee.
    Dec. 18, 1978.

      Charles B. Lewis, Morton, Lewis, King & Krieg, Knoxville, for petitioner.
    John D. Lockridge, Ambrose, Wilson, Lockridge & Grimm, Knoxville, for respondent.
   OPINION

FONES, Justice.

This is an action by a guest passenger against her host driver for personal injuries sustained in an automobile accident. The jury returned a verdict for defendant which was approved by the trial judge. The Court of Appeals reversed and remanded for a new trial, sustaining two of plaintiff’s assignments of error complaining of the jury instructions. That Court held that the last clear chance doctrine, as charged, was erroneous and confusing and that the law of contributory negligence was erroneously charged. We granted certiorari because of our disagreement with the intermediate court on both issues.

Plaintiff sued her host, Terri W. Roseber-ry, Carol Ray, driver of the other vehicle involved, and James Glenn Ray. Prior to trial plaintiff dismissed her action against Carol and James Ray. Neither plaintiff nor defendant Roseberry had any recollection of how the collision occurred because of amnesia sustained in the accident. The only witnesses on the issue of liability were Carol Ray, and Arnold Honey. A Tennessee Highway Patrolman testified, but his investigation did not disclose anything of significance.

Plaintiff’s theory was that although Mrs. Ray was negligent in pulling away from the stop sign, that her host, defendant Roseber-ry, should have observed Mrs. Ray’s entry into the intersection, slowed, stopped or otherwise avoided the accident. In short, that if defendant had been keeping a proper look-out ahead, there was time to bring her vehicle under control and avoid the accident. Plaintiff insisted that the doctrine of last clear chance applied.

Defendant’s theory was that Mrs. Ray entered the intersection from the stop street directly in front of her vehicle and when it was in such close proximity to the intersection that a sudden emergency was created; that Mrs. Ray’s negligence was the sole proximate cause of the accident and that the doctrine of last clear chance had no application.

The accident occurred between 6:30 and 7:00 a. m. at the “T” intersection of Alcoa and John Sevier Highways in Knox County. Alcoa Highway has two northbound lanes and two southbound lanes separated by a thirty-foot median strip and John Sevier Highway has one lane each for eastbound and westbound traffic. A body of water runs along the west side of Alcoa Highway, and John Sevier Highway intersects on the east side. A stop sign controls westbound traffic on John Sevier Highway.

Plaintiff and defendant were proceeding north on Alcoa Highway in defendant’s Volkswagen, and Mrs. Ray was driving a Jeep west on John Sevier Highway, intending to turn left into Alcoa Highway and continue southward toward Maryville. Mrs. Ray testified that she stopped at the intersection near the eastern edge of the right-hand lane for northbound traffic on Alcoa Highway, and waited for the northbound cars to clear; that there was a break in the traffic and although looking south she could see a Volkswagen in the passing lane and a truck in the lane nearest her, she “felt that she had quite a bit of time to get across.” Mrs. Ray entered Alcoa Highway in low gear and reached the passing lane when the front of the Volkswagen struck the left side of her Jeep. She declined to estimate distances and time intervals but did mark on a photograph the approximate position of the Volkswagen when she saw it immediately prior to pulling out into the intersection. That mark bears a relative proximity to an advertising sign located some distance east of Alcoa Highway, that cannot be accurately determined from the photograph. There was testimony that the sign was located 720-feet from the intersection.

Mr. Honey testified by deposition, taken in Texas, that the Volkswagen followed him for a long time before the accident but had passed him 300 or more feet before reaching the intersection and was 60 to 80-feet ahead of his truck when the accident occurred. However, another version can be pieced together from his total testimony, to wit: that he first noticed the Volkswagen about one mile south of the intersection, that it pulled up even with him and was just forging ahead of his truck at the point of collision, “[t]hey went around me when they had the accident.” He testified that he saw the Jeep stopped at the John Sevier intersection when he was 300-feet away. At one point he said the Jeep started across the intersection when he was 300-feet away but later said that he was half or less than half that distance. Mr. Honey was asked on direct examination what action he took at that time and replied that he reduced his speed and applied his brakes to slow down. But, on cross examination he said he did not believe he would have collided with the Jeep even if he had not applied his brakes. He testified that he was driving 45 m. p. h. and the speed limit on Aloca Highway was 55 m. p. h. There was no evidence that defendant was driving in excess of the speed limit. Mr. Honey testified that he saw the brake lights of the Volkswagen come on “just immediately before the impact.” No skid marks were found at the scene of the accident.

Defendant assigns as error the denial of her motion for a directed verdict by the trial judge and the Court of Appeals. We will not belabor that close question, as we reach the same result, assuming that the plaintiff was entitled to a submission of the issues to the jury.

The last clear chance doctrine is based upon the theory that a plaintiff should be allowed to recover where his initial negligence has created the risk of accident and resulting injury and defendant has the last reasonable opportunity to avoid the accident and fails to do so. See Street v. Calvert, 541 S.W.2d 576 (Tenn.1976). It is an arbitrary exception to the rule barring recovery for proximate contributory negligence, however slight. See Vaughn v. City of Alcoa, 194 Tenn. 449, 251 S.W.2d 304 (1952). It is obvious that the doctrine cannot be triggered by a guest passenger’s negligence for the reason that a guest passenger’s negligence is always triggered by an actual or anticipatory act of negligence on the part of the host driver.

If Mrs. Ray had remained as a defendant in this lawsuit, it is conceivable that she might have attempted to invoke the doctrine of last clear chance. Her initial negligence might be said to have placed her in a position of danger, that defendant Roseberry had the time and opportunity to observe and avoid colliding with her vehicle. There are a number of reported cases involving suits by guest passengers against the host driver and a second alleged tort-feasor, wherein one of the tortfeasors sought to escape liability by asserting that the other tortfeasor had the last clear chance to avoid the accident. The cases uniformly have held that as against third persons, such as a guest passenger, one tort-feasor cannot defend on the basis that the other tortfeasor had the last clear chance. In such cases it is said that the issues are merely whether both tortfeasors are guilty of concurring proximate negligence or that only one of the alleged tortfeasors was guilty of negligence that was the sole proximate cause of the accident. The determination of those issues is made without any consideration of the doctrine of last clear chance, it being neither applicable nor relevant. E. g., Petition of Kinsman Transit Co., 338 F.2d 708 (2nd Cir. 1964); Lincoln City Lines v. Schmidt, 245 F.2d 600 (8th Cir. 1957); Atlantic Coastline R. R. Co. v. Coxwell, 93 Ga.App. 159, 91 S.E.2d 135 (1955); Evans v. Phoenix Insurance Co., 175 So.2d 425 (La.App.1965); and Fontaine v. Charas, 87 N.H. 424, 181 A. 417 (1935). The principle of non-relevance of the last clear chance doctrine would necessarily be of equal application where plaintiff guest passenger sues only one of two alleged tortfeasors. Thus, the issues in this case were (1) whether or not defendant Roseberry was guilty of any proximate negligence that concurred with the negligence of Mrs. Ray to produce the accident; and if so, (2) whether plaintiff was guilty of any contributory negligence.

The last clear chance instruction given by the trial judge quoted Restatement (Second) of Torts § 479 (1965), verbatim, and in stating its application to the instant case used Mrs. Ray as the initial negligent actor, producing the perilous situation. The confusion was said to have occurred when plaintiff insisted, after the charge had been given, that plaintiff Lippner’s name should have been used in place of Mrs. Ray.

The trial judge committed error in giving the charge. However, it was invited error, and plaintiff will not be heard to complain on appeal of error which she induced the Court to commit. Norris v. Richards, 193 Tenn. 450, 458, 246 S.W.2d 81, 85 (1952).

If the doctrine had been applicable to this case, the trial judge had the parties correctly aligned. Mrs. Ray, not plaintiff Lippner, was the tortfeasor whose negligent act gave rise to the perilous situation that confronted all three parties. Again, the plaintiff introduced the confusion and will not be allowed to complain of action which she herself invoked.

The trial judge instructed the jury correctly on the duty of a guest passenger and clearly stated that the negligence of the host driver was not imputable to the guest. In the Court of Appeals, plaintiff Lippner, as appellant there, assigned error on the part of the trial judge in giving an instruction in regard to the duty of a guest passenger on the grounds that (1) the negligence of the host driver was not imputable to the guest passenger and (2) there was no evidence introduced that would support a finding of any contributory negligence on the part of the plaintiff. The Court of Appeals addressed only the imputed negligence question and apparently being of the opinion that the trial judge had instructed the jury that the host driver’s negligence was imputable to the guest, held that to be reversible error. In this Court the question of whether evidence sufficient to make a jury issue was presented remains for decision.

It is true there was no direct testimony that plaintiff did or did not warn defendant that Mrs. Ray was moving into a position of danger. However, a jury issue as to the contributory negligence of a guest passenger may be established by circumstantial evidence and the legitimate inferences and deductions that may be drawn therefrom. See 30 Am.Jur.2d, Evidence § 1122 (1967). The direct evidence in this case places plaintiff in an equal position with defendant to have seen and appreciated the significance of the position and movement of Mrs. Ray’s Jeep at all relevant times. The photographs clearly show that there were no obstructions whatsoever to a full view of all vehicles involved within the distances relevant to this accident.

Plaintiff’s allegation of negligence against defendant is, in substance, that she failed to see what was there to be seen, in time to avoid the accident. The same direct evidence upon which that charge of negligence is predicated, to wit: that the Volkswagen may have been as much as 720-feet south of the intersection when Mrs. Ray started across, makes a jury issue as to whether or not there was time within which a warning by plaintiff should and could have been given and the accident avoided. See Harrison v. Pittman, 534 S.W.2d 311 (Tenn.1976), wherein this Court held a guest passenger’s contributory negligence was a jury issue in spite of her direct testimony that she did not have time to give a warning, because the jury could have found, from all the circumstances of the accident, that she did have time to warn the driver.

Reversed. Costs are adjudged against plaintiff Lippner.

HENRY, C. J., and COOPER, BROCK and HARBISON, JJ., concur.

      . This does not purport to be a complete statement of the doctrine as applicable in Tennessee.