No. 85-474 

TN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

ALLEN KELLER , 

Plaintiff and Appellant, 

STEMBRIDGE GUN RENTALS, and ABC 

IJIANUFACTURING , 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Michael Keedy, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Anderson, Edwards & Molloy; Donald W. Molloy argued, 

Billings, Montana 

For Respondent: 

Murphy, Robinson, Heckathorn & Phillips; Debra D. 

Parker argued, Kalispell, Montana 

Beaudry & Brown; Don F. Reaudry, Los Angeles, 

California 

Submitted: April 1, 1986 

Decided: June 3, 1986 

Clerk 
Mr. Justice John C. Harrison, delivered the opinion of the 

Court. 

This is an appeal from an order of the District Court of 

the Eleventh Judicial District in and for Flathead County, 

Montana, granting d.efendant summary judgment. The court held 

plaintiff's claim was barred because the relation back rule 

did not apply and the statute of limitations is not tolled. 

We affirm. 

The question on appeal is whether the statute of 

limitations is tolled on the date the original complaint was 

filed. when the complaint incorrectly names the defendant and 

his true name is discovered later and submitted by amendment. 

We hold it is not. 

The plaintiff, Keller, sustained personal injuries 

during the filming of the movie Heaven's Gate in August, 

1.979. He was issued a Sharps Buffalo Rifle which exploded 

while he was using it in the performance of his role. The 

gun wa.s in one piece and ostensibly safe when it was issued 

to him, but was blown apart and in many pieces after he fired 

blanks from it. 

Section 27-2-204, MCA, the three year statute of 

limitations for tort actions, had nearly run when Keller 

filed his original complaint in August, 1982, naming Ellis 

Rental a/k/a Ellis Mercantile. Keller believed Ellis had 

supplied the gun which exploded. ABC Manufacturing, a 

fictitious party defendant, also was named. 

Interrogatories served on Ellis with the complaint 

revealed Ellis did not supply the weapon. The affidavit of 

one Robert Visciglia, the film crew's property manager, whose 

duties included accounting for and distributing weapons, 
supported this fact, and Ellis' motion for summary judgment 

was granted October 11, 1983. 

An amended complaint, filed June 25, 1983, naming 

Stembridge Gun Rentals as defendant, was served March 29, 

1984. Stembridge appeared and moved for summary judgment, 

arguing the statute had run. The District Court, relying on 

LaForest v. Texaco, Inc. (1978), 179 Mont. 42, 585 P.2d 1318, 

granted the motion, reasoning the relation back rule did not 

apply. Keller appeals. 

The issue can be resolved by analyzing Rule 15(c), 

Rule 15(c) provides in pertinent part: 

Relation back of amendments. 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. An amendment changing the 

party against whom a claim is asserted relates back 

if the foregoing provision is satisfied and, within 

the period provided by law for commencing the 

action against him, the party to be brought in by 

amendment (1) has received such notice of the 

institution of the action that he will not be 

prejudiced in maintaining his defense on the 

merits, and (2) knew or should have known that, but 

for a mistake concerning the identity of the proper 

party, the action would have been brought against 

him. 

The critical language in this instance is in the second 

sentence of the rule. There is no evidence Stembridge 

received notice of the institution of the action or that it 

knew or should have known that but for a mistake concerning 

the identity of the proper party, the action would have been 

brought against it. It is agreed the party against whom the 

claim is made is changed. When Keller discovered Ellis had 

not supplied the gun which exploded, he amended the 

complaint, naming Stembridge. The crux of the problem is 

whether Stembridge is a new party to the action. 
This is not a case that falls under the "misnomer" rule 

where a plaintiff sues and serves the correct party but 

merely mistakenly uses the wrong name of the defendant. 

LaForest, supra, 179 Mont. at 47, 585 P.2d at 1320. Rather, 

this situation is governed by 5 25-5-103, MCA: 

Flhen a plaintiff is ignorant of the name of the 

defendant, such defendant may be designated in any 

pleading or proceeding by any name; and when his 

true name is discovered, the pleadings or 

proceedings may be amended accordingly. 

These circumstances present more than mere ignorance of 

the names of the proper defendant. Keller original-ly sued 

the wrong entity. The caption on the complaint indicates the 

designation of a fictitious party relates only to the unknown 

manufacturer: 

ALLEN KELLER, 

Plaintiff, 

ELLIS RENTAL, a/k/a 

ELLIS MERCANTILE, and 

ABC YANUFACTURING, 

Defendant No. 1 is the correct 

designation of the entity that 

provided the "Sharps Buffalo 

Gun" herein, on the occasion 

of its explosion; Defendant No. 2 

represents an entity that 

manufactured or sold the gun 

to Ellis Rental. Plaintiff 

affirms that the actual name of 

the fictitious party designated 

herein is unknown to him at this 

time but will be a.dded by amendment 

when ascertained. 

Defendants. 

Keller is attempting to bring a completely new party 

before the Court after the statute of limitations has run. 

The caption makes it clear he was satisfied Ellis Rental had 

supplied the Buffalo gun. The use of a fictitious name in 
the caption was specifically in.tended for the unknown 

manufacturer of the gun. 

Both LaForest, supra, and S 25-5-103, MCA, allow the 

statute of limitations to be tolled as to a fictitious party 

on the date of the original complaint. A fictitiously named 

defendant is notice that plaintiff is ignorant of the true 

name and is attempting to discover the true name. Neither S 

25-5-103 nor LaForest allows substitution of the proper 

defendant after discovering the wrong defendant was sued. 

The addition or substitution of parties who had no 

notice of the original act is allowed. 

Substitution of a completely new defendant creates 

a new cause of action. Permitting such a procedure 

would. undermine the policy upon which the statute 

of limitations is based. (Citations omitted. ) 

LaForest, supra, 585 P.2d at 1320, 179 Mont. at 46. citing 

Munez v. Eaton and Tov,~ne, Inc. (E.D. Pa. 1973), 57 F.R.D. 

Keller cannot meet the standard for the relation back of 

the amended complaint, pursuant to Rule 15(c), M.R.Civ.P. nor 

is he in compliance with S 25-5-103. He cannot sue 

Stembridge by naming Ellis as a defendant. Ellis is an 

entity in its own right and not a fictitious name for 

Stembridge. Stembridge is a new party to the action. 

Consequently the action is barred because Stembridge was not 

named until July 25, 1983--after the statute of limitations 

had run. The District Court properly granted summary 

judgment and we affirm. 

We Concur: 
Justices