its trustee in re-organization. ( Detwiler v. Chicago, R.I. and Pac. Ry. Co., D.C.Minn. 1st Div., 15 F.Supp. 541, 542)'; and see Jakubowski v. Central R. Co. of N.J., D.C.1950, 88 F.Supp. 258.
'A receiver appointed by a court of equity to hold, manage, and operate an insolvent railroad is not the agent of the insolvent railroad corporation, and is not a substitute for the board of directors. He is but the hand of the court appointing him, and holds, manages, and operates the property under the orders and directions of the court as its custodian, and not for or under the control of the directors or shareholders of the corporation. His management is for the benefit of those ultimately entitled under decree of the court. His acts are not the acts of the corporation, and his servants are not the agents or servants of the corporation.' Memphis & C.R. Co. v. Hoechner, 6 Cir., 1895, 67 F. 456, at page 457.
'If the plaintiff had no cause of action against the * * * Railroad Company * * * a suit against that company would not be a suit against the receivers, and could not operate to stop the running of the statutory limitation in favor of the receivers.' Id., 67 F. 459.
'The appointment of receivers * * * was an act of such notoriety * * * that all persons have constructive notice. * * * There was no evidence tending to show any concealment of the facts. Public notices were posted * * * if the plaintiff did not know it, it * * * cannot have the legal effect of suspending the statute of limitations affecting his suit, or estop the receivers from relying upon it.' Id., 67 F. 459, 460.
Assuming the trusteeship was properly before the court by stipulation, motion for summary judgment and accompanying affidavit, or other competent evidence; piercing the allegations of the complaint, in the absence of a dispute as to a material fact,
it would appear that the railroad company was not doing business in this district at the time in question, was not responsible for the conduct of the train crew, was not subject to process herein and is therefore not a party to the record so as to give the court jurisdiction of the person of the defendant.
The trustee, not the railroad company, was the real party in interest. See 11 U.S.C.A. § 205, sub. j.
An examination of the complaint, summons, and return of service indicates plaintiffs' intention to make the railroad company the party defendant. In fact, plaintiffs' brief argues that the railroad company is the proper party defendant, the real in interest, and that under Pennsylvania law suit must be brought against the corporation qua corporation, citing Pennsylvania Rule of Civil Procedure 2177. In this respect they are obviously in error. Although adequate opportunity was afforded, plaintiffs have not by motion spelled out their theory by moving to amend the complaint and summons, F.R.C.P. 15(a), (c), the return of service, Id. Rule 4(h), or in any manner moved to substitute the trustee as the proper party defendant. Plaintiffs' brief suggests that if necessary an amendment may be made correctly stating the name of the defendant, citing Pennsylvania Rules, supra, 1033, contending that since there is no question of identity or as to the real name of the defendant that would be merely a formal correction which does not introduce a new cause of action or change the parties to the action. They are arguing at cross purposes.
Statutes permitting amendments are to be liberally construed to give effect to their intent, i.e., to prevent a defeat of justice through mere mistake as to parties or form of action. Thus if the proper party is actually in court and the effect of the amendment is to correct the name under which it has been sued, an amendment will be allowed. Wright v. Eureka Tempered Copper Co., 1903, 206 Pa. 274, 55 A. 978. It is well settled however that an amendment which brings in a new party will not be permitted after the statute has run. In re Fitzgerald's Estate, 1916, 252 Pa. 568, at page 572, 97 A. 935, at page 936. See and cf. Bahas v. Wilczek, 1936, 324 Pa. 212, 215, 216, 188 A. 139, 140. 'Plaintiff is not seeking to amend under the Act of April 16, 1846, P.L. 353, § 2, 12 P.S. § 532, or the Act of 1852, P.L. 574, 12 P.S. § 533, by changing or correcting the name of the party to the record * * * the purpose is to bring in a new party * * * if the wrong party was sued * * * the right one cannot be brought in by amendment * * *.' And see Thompson v. Peck, 1935, 320 Pa. 27, at page 30, 181 A. 597, at page 598; Coyne v. Lakeside Elec. Ry. Co., 1910, 227 Pa. 496, 76 A. 224. The same rule applies in federal court. See Sanders v. Metzger, D.C.E.D.Pa.1946, 66 F.Supp. 262, at page 263; Schram v. Poole, 9 Cir., 1938, 97 F.2d 566, at page 572; Davis v. L. L. Cohen & Co., 1925, 268 U.S. 638, at page 642, 45 S. Ct. 633, at page 634, 69 L. Ed. 1129; Lindgren v. United States Shipping Board Merchant Fleet Corp., 4 Cir., 1932, 55 F.2d 117, at page 120; Mellon v. Arkansas Land & Lumber Co., 1928, 275 U.S. 460, 463, 48 S. Ct. 150, 151, 72 L.Ed 372, 'The substitution * * * was not the correction of an error in the name of the defendant, but the bringing in of a different defendant, and was in effect the commencement of a new and independent proceeding * * *.' Mellon v. Weiss, 1926, 270 U.S. 565, at pages 567-568, 46 S. Ct. 378, 70 L. Ed. 736; Philadelphia Life Ins. Co. v. Burgess, D.C.E.D.S.C.1927, 18 F.2d 599, at page 604; Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., D.C.Del.1950, 92 F.Supp. 943, at page 947; Kerner v. Rackmill, D.C.M.D.Pa.1953, 111 F.Supp. 150; see and cf. Weldon v. United States, 1 Cir., 1933, 65 F.2d 748, 749; Hammond-Knowlton v. United States, 2 Cir., 1941, 121 F.2d 192, and see Note 8 A.L.R.2d at pages 174, 176.
The principles in themselves relatively simple are obscured by problems which arise in connection with the application thereof to the facts of the individual cases. Do we have here a case of correction of a misnomer or substitution of a new party defendant? As to the impracticability of applying a subjective standard, see Glint Factors, Inc., v. Schnapp, 2 Cir., 1942, 126 F.2d 207, at pages 209, 210; Professor Moore, Vol. II, op. cit. supra, § 4.44, p. 1042, suggests that 'the test should be whether, on the basis of an objective standard, it is reasonable to conclude that plaintiff had in mind a particular entity or person, merely made a mistake as to the name, and actually served the person or entity intended; or whether plaintiff actually meant to serve and sue a different person.' And see Grandey v. Pacific Indemnity Co., 5 Cir., 1954, 217 F.2d 27, at page 29. See United States v. A. H. Fischer Lumber Co., 4 Cir., 1947, 162 F.2d 872, at page 873, 'If it names them in such terms that every intelligent person understands who is meant * * * courts should not put themselves in the position of failing to recognize what is apparent to everyone else.' See Note 8 A.L.R.2d supra, at page 157, as to the measure of neglect or fault.
The court must also consider the admonition that "* * * time has long since gone by when the rights of a litigant are to be measured solely by the skill of the pleader." Smith v. Piper Aircraft Corp., supra, 18 F.R.D. at page 176, citing cases. But general principles do not decide cases.
What of the service upon the trainmaster? New York Cent. & H.R. Co. v. Kinney, 1922, 260 U.S. 340, at page 346, 43 S. Ct. 122, at page 123, 67 L. Ed. 294, teaches that 'when a defendant has had notice from the beginning that the plaintiff sets up and is trying to enforce a claim against it because of specified conduct, the reasons for the statute of limitations do not exist * * *.' But see Miller's Heirs and Devisees v. McIntyre, 1832, 6 Pet. 61, 64, 31 U.S. 61, 64, 8 L. Ed. 320, 'Until the defendants were made parties to the bill, the suit cannot be considered as having been commenced against them. It would be a novel and unjust principle, to make defendants responsible for a proceeding of which they had no notice; and where a final decree in the case could not have prejudiced their rights.'
The company was under no duty to appear and plead until required to do so in a legal manner. It would not be bound by a judgment until it was properly brought upon the record. Barrilo v. Frank, 1935, 116 Pa.Super. 461, at page 463, 177 A. 58, at page 59; City of Pittsburgh v. Eyth, 1902, 201 Pa. 341, 50 A. 769; United States ex rel. Rauch v. Davis, 1925, 56 App.D.C. 46, 8 F.2d 907; Sanders v. Metzger, supra, 66 F.Supp. at page 264.
While notice to the agent when it is the duty of the agent to act upon such notice or communicate it to his principal in the proper discharge of his duty as agent is notice to the principal (St. Louis Fire & Marine Ins. Co. v. Witney, D.C.M.D.Pa.1951, 96 F.Supp. 555, at page 561, and see Id. as to knowledge) Davis v. L. L. COhen & Co., supra, 268 U.S. at page 641, 45 S. Ct. at page 634, and its progeny, teach by analogy that the trustee would not be bound by the service in question.
Ordinarily the train crew would report the accident, the trainmaster the attempted service, to their superiors, the trustees. Plaintiffs no doubt wish to recover from those actually responsible. Suit was however delayed until the last moment; the complaint and summons directed against and service made upon the company, plaintiffs' counsel insisting the company was the proper defendant, the real party in interest, and the one required to be sued by Pennsylvania law. Counsel were obviously mistaken as to the law and the facts. See and cf. Note, 8 A.L.R.2d at 158, citing cases. Having taken that position, how can we find they did not sue the wrong party and that what they now suggest in the alternative is the substitution of a new party?
Granting the trend toward liberality, the desire that cases be decided upon their merits, and that justice be done between the parties, the statute of limitations in aim and purpose is a part of the law and should not be expunged by interpretation from the statute books. See Carr-Consolidated Biscuit Co v. Moore, supra, 125 F.Supp. 423; Anderson v. Brady, D.C. 1946, 7 F.R.D. 84.
Upon proof of the trusteeship, in the absence of countervailing evidence, the complaint will be dismissed.