Wells v. Stinson

Supreme Court of Missouri

Wells v. Stinson

739 S.W.2d 706, 1987 Mo. LEXIS 355

CourtSupreme Court of Missouri

DecidedNovember 17, 1987

DocketNo. 69343

StatusPublished

Cited by7 cases

This text of 739 S.W.2d 706 (Wells v. Stinson) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wells v. Stinson, 739 S.W.2d 706, 1987 Mo. LEXIS 355 (Mo. 1987).

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Opinion

DONNELLY, Judge.

Appellant seeks to recover for losses resulting from purchase of bonds which went into default.

Appellant filed her Petition for Damages on February 21, 1985, in which breaches of warranties were alleged. Appellant filed a First Amended Petition on February 6, 1986, in which fraud and negligence were alleged. On June 13, 1986, the trial court sustained respondents’ Motion for Summary Judgment on Counts I and II “on the grounds that said Counts are barred as a matter of law under the applicable statute of limitations * *

[707]*707The Western District of the Court of Appeals affirmed and the cause was certified to this Court by a dissenting judge. Mo. Const, art. V, § 10.

In Koerper & Company, Inc. v. Unitel International, Inc., 739 S.W.2d 705 (Mo. banc 1987) (decided concurrently herewith), we held that when a claim asserted in an amended pleading “arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading,” the amended pleading relates back to the original pleading so as to save a plaintiffs cause of action from the bar of a statute of limitations. See Rule 55.33(c). The “same evidence” test articulated in Arpe v. Mesker Brothers Iron Company, 323 Mo. 640, 648, 19 S.W. 2d 668, 670 (1929) should no longer be followed.

The cause is reversed and remanded with directions to the trial court to set aside its order of June 13, 1986, and to reconsider and rule again on respondents’ Motion for Summary Judgment in a manner not inconsistent with this opinion.

All concur.

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DONNELLY, Judge.

Appellant seeks to recover for losses resulting from purchase of bonds which went into default.

Appellant filed her Petition for Damages on February 21, 1985, in which breaches of warranties were alleged. Appellant filed a First Amended Petition on February 6, 1986, in which fraud and negligence were alleged. On June 13, 1986, the trial court sustained respondents’ Motion for Summary Judgment on Counts I and II “on the grounds that said Counts are barred as a matter of law under the applicable statute of limitations * *

[707]*707The Western District of the Court of Appeals affirmed and the cause was certified to this Court by a dissenting judge. Mo. Const, art. V, § 10.

In Koerper & Company, Inc. v. Unitel International, Inc., 739 S.W.2d 705 (Mo. banc 1987) (decided concurrently herewith), we held that when a claim asserted in an amended pleading “arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading,” the amended pleading relates back to the original pleading so as to save a plaintiffs cause of action from the bar of a statute of limitations. See Rule 55.33(c). The “same evidence” test articulated in Arpe v. Mesker Brothers Iron Company, 323 Mo. 640, 648, 19 S.W. 2d 668, 670 (1929) should no longer be followed.

The cause is reversed and remanded with directions to the trial court to set aside its order of June 13, 1986, and to reconsider and rule again on respondents’ Motion for Summary Judgment in a manner not inconsistent with this opinion.

All concur.

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739 S.W.2d 706, 1987 Mo. LEXIS 355, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wells-v-stinson-mo-1987.

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