Andrex Industries Corp. v. Western Carolina Warehousing Co.

MARTIN, Judge. Defendant contends that the substitution of Andrex Industries Corporation as plaintiff in this cause creates a new and independent cause of action and in effect, is an attempt to change the liability sought to be enforced against defendant. With this conclusion, we cannot agree. In Exterminating Co. v. O’Hanlon, 243 N.C. 457, 91 S.E. 2d 222 (1956), our Supreme Court held that a trial court is without authority to permit substitution of parties plaintiff where to do so would create a new cause of action. However, in that same case, the Court also recognized the rule that “one plaintiff may be substituted for another plaintiff, working an entire change of plaintiffs, by amendment, where no substantial change in the nature of the claim demanded in the complaint was involved.” (Emphasis added.) In Gibbs v. Mills, 198 N.C. 417, 151 S.E. 864 (1930), cited in the Exterminating Co. case as authority for the latter rule, the Court allowed the substitution as plaintiff of the actual owner of real property where the suit had been instituted by a nonowner for damages to the real property. The Court in Gibbs held that since the real controversy involved damage done to the property, the cause of action had not been changed and the defendant had not been prejudiced by allowing the true owner — the real party in interest — voluntarily to be substituted as plaintiff. In the instant case, the real controversy involved the damage done to the yarn. Defendant’s liability, if any, for this damage was [124] not changed by the substitution of the parties plaintiff. We can perceive of no prejudice to defendant arising therefrom. The trial court’s order allowing substitution of Andrex Industries Corporation as plaintiff and amendment of the complaint to reflect such substitution was proper. In addition, we note that plaintiff has relied on Rule 17(a) of the Rules of Civil Procedure in support of the trial court’s ruling. Rule 17(a) provides: “No action shall be dismissed on the grounds that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.” Though defendant has not sought dismissal in the instant case, we are of the opinion that the spirit and intent of Rule 17(a) is consistent with and would dictate the result reached herein. See 1 McIntosh § 591 (Phillips Supp. 1970). Affirmed. Chief Judge BROCK and Judge CLARK concur.