Matthews, Fritz and Botter. The opinion of the court was delivered by Botter, J.A.D.
Plaintiffs appeal from a summary judgment dismissing their amended complaint on the ground that their claims are barred by the statute of limitations.
Plaintiffs' amended complaint alleges that on March 9, 1970 plaintiff Louis D. Aruta (Aruta) was injured during the course of his employment by an automatic round steel rod fabricating machine manufactured by defendants Filigranbau Stefan Keller K.G. and Julius Stefan Keller, also known as Stefan Keller, also known as Julius George Stefan Keller. The complaint asserts claims for damages for personal injuries to Aruta and loss of consortium for his wife. Breach of warranty, negligence and strict liability are the asserted grounds for liability.
On March 9, 1972 plaintiff filed a complaint in the Superior Court, Law Division, against George [Georg] Keller and X-Trager Keller K.G. asserting the same claims. Plaintiffs' attorneys had been advised by the insurance company of Aruta's employer that the machine in question had been purchased "directly from the manufacturer, X-Trager Keller Company, Munich, Germany."*fn1 By their answer said defendants denied that they had manufactured and sold the machine to Aruta's employer.
During the course of discovery plaintiffs learned that they had named and served the wrong parties. On motion, leave was granted to plaintiffs to amend their complaint substituting the proper parties, and the discovery period was enlarged. The original defendants were released from the case on their cross-motion for summary judgment. In February 1973 plaintiffs' amended complaint was served by mail upon the present defendants.
In 1960 Aruta's employer contracted with the present defendants for the manufacture and sale of the machine. In
that written agreement the individual defendant was named as "Julius Stefan Keller, also known as Stefan Keller, also known as Julius Georg Stefan Keller." The machine was used until sometime in 1972 when it was replaced by a machine manufactured by the original defendant, X-Trager Keller K.G.
Discovery further disclosed that the machine on which plaintiff was injured was designed by defendant Julius Georg Stefan Keller and a Mr. Fischer. Defendant Julius Georg Stefan Keller is the brother of the original defendant, Georg Keller. In answers to interrogatories the present defendants denied that they had received knowledge of the original action in March or April 1972, but stated that they first became aware of the action when they received the summons in early 1973 and were "then informed by Georg Keller that the man injured had not been hurt on his machine." Defendants assert that the two firms had no relationship until 1973.*fn2
The trial judge dismissed the action on the ground that the amendment "brings in a completely different defendant." The trial judge noted that the amendment went beyond a mere correction of the name of a proper party who had been served within time. The trial judge also found merit in defendants' contentions that they were prejudiced by the delay since the machine is no longer available for inspection,
apparently having been disassembled when replaced by the new machine in 1972. In his letter opinion of April 1974, however, the trial judge neither cited nor discussed the effect of Farrell v. Votator Div. of Chematron Corp., 62 N.J. 111 (1973).
The Farrell case dealt with a similar claim brought against the maufacturer and seller of a machine which caused injury to a factory worker. It was alleged that the machine was not equipped with a suitable guard. Not knowing the name of the manufacturer, and being close to the expiration of the two-year limitation period, a complaint was filed which included "John Doe and/or John Doe, Inc." as the fictitious name of the alleged "assembler, supplier or seller" of the ...