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August 13, 1958

William J. FOULKE, Sr., Administrator of the Estate of William J. Foulke, Jr., Deceased,
Raymond F. MEILUTA

The opinion of the court was delivered by: EGAN

This is a diversity action brought against a Pennsylvania citizen by an administrator ad prosequendum who is a New Jersey citizen. The accident which gave rise to this suit happened in New Jersey, the death of plaintiff's decedent being instantaneous.

It occurred about 2:30 on the morning of March 18, 1955. Decedent, a few months short of 21 years of age, was an invited guest in defendant's car which was being driven by the defendant in a westerly direction towards Philadelphia on the westbound ramp at Airport Circle, Pennsauken Township, New Jersey. It was a clear night, the roadway was dry and no other cars were in sight. There were three persons riding in the front seat of the automobile, the defendant-driver, the deceased and another man named Ragen. Ragen was riding in the middle. He was not produced as a witness at the trial, although he was the only eyewitness, with the exception of the defendant.

 Defendant's car went out of control, jumped a 12 or 14 inch curb to its right, struck a guard pole on the boundary of the highway and proceeded along the boundary until it got to the end of the retaining fence and ran off and overturned in a field about 54 feet from the north curb of the highway. Decedent's body was found on the ground near the car. Defendant's car had traveled approximately 476 feet from the point of impact to the point where it came to rest in the field.

 Just prior to the accident, defendant's car was traveling at a speed of about 45 miles per hour, which is posted as the permissible speed limit at the place where it occurred.

 At the beginning of the trial, defendant moved to dismiss the complaint on the ground that the applicable New Jersey statute was cited incorrectly in that plaintiff cited the 1937 statute 'as amended' instead of the superseding 1952 statute. Over the objection of defendant, the Court permitted plaintiff to amend his complaint so as to cure this technical defect. Said amendment was orally made in open Court. *fn1"

 Defendant now asserts this as a ground for judgment notwithstanding the verdict upon the theory that the statute of limitations having run, plaintiff's amendment came too late. The motion for judgment notwithstanding the verdict must be denied.

 Rule 15 of the Federal Rules of Civil Procedure, 28 U.S.C.A., deals with amendments and supplemental pleadings. Under section (a) thereof, certain amendments, not here relevant, may be made as of course, or 'otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.' (Emphasis supplied.)

 Rule 15(c) states:

 'Whenever the claim or defense 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.' (Emphasis supplied.

 We are of the opinion that plaintiff's pleading sufficiently stated a good cause of action under the 1937 Act, as well as under the 1952 Act; that the reference to the Act of 1937 was merely surplusage under the Federal Rules regarding notice pleading, as indeed was the reference to the 1952 Act in the amendment; that failure to permit the amendment, for the reasons advanced, would have put plaintiff out of Court; that the defendant was not prejudiced by the amendment because he had notice of the cause before the statute of limitations ran and that the ends of justice required that the amendment be permitted.

 Professor Moore in his treatise on Federal Practice states:

 Rule 15 is one of the most important of the rules that deal with pleadings. It re-emphasizes and assists in attaining the objective of the rules on pleading; that pleadings are not an end in themselves, but are only a means to the proper presentation of a case; that at all times they are to assist, not to deter the disposition of litigation on the merits. The Rule, when read in conjunction with other rules, clearly bears out the foregoing statement. Rule 1 provides that the Rules 'shall be construed to secure the just, speedy, and inexpensive determination of every action.' Rule 8(f) states the canon of construction: 'All pleadings shall be so construed as to do substantial justice.' *fn2"

 See International Ladies' Garment Workers' Union v. Donnelly Garment Co., 8 Cir., 1941, 121 F.2d 561; 3 Moore, ...

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