(dissenting).
The original complaint named only the Branstetter Hardware, Inc., as the defendant. The amended complaint added as a defendant the “Hart County Board of Education, composed of D. M. Belt, Carl J. Wilkerson L. D. Branstetter, Jr., Obert Jaggers and H. W. Harlow, in their capacity as Board Members.” The amended complaint and a third-party complaint used exactly the same denomination of the Hart County Board of Education and its board members. The complaint, the third-party complaint and the amendments thereto made no allegation of individual negligence on the part of the board members, but, on the contrary, until the rejected second amendment was offered, the pleadings alleged that the board members were being “sued in their capacity as Board Members.”
The original cause of action which was filed by Smiley’s administrator, who was appointed April 23, 1970, claimed that the plaintiff was injured when he “ * * * fell into an excavation which had been carelessly and negligently made and carelessly and negligently left unprotected and unguarded by the defendant, its agents, servants and employees while acting in the course and scope of said agency.” The rejected second amendment charged that the Hart County school board members “ * * * knew or by the exercise of ordinary care should have known of such dangerous condition and should have warned the public thereof and erected barriers and given warning so as to protect the public, but each negligently and carelessly failed to do so * * It further charged that the board members “ * * * jointly and severally, carelessly and negligently selected and employed incompetent personnel to construct a cistern on the property of the Hart County Board of Education, which was under the jursidiction of the Board of Education, and the excavation work necessary therefor; that each of them knew or ought to have known, jointly and severally, that the personnel was not qualified to perform the work, and carelessly and negligently supervised the County School Superintendent, an employee of the Hart County Board of Education, and the personnel employed to construct said cistern * * * It will thus be seen that new claims were being added after the statute of limitation had barred the action against the individual board members. KRS 413.180(1); Totten v. Loventhal, Ky., 373 S.W.2d 421 (1963).
In City of Danville v. Wilson, Ky., 395 S.W.2d 583 (1965), a remonstrance suit attacking annexation was filed naming the twelve members of the Board of Common Council of Danville as the defendants. The city was not named as a party defendant. After the time within which such a suit could legally be filed (KRS 81.110(1)), the petitioners offered an amended complaint naming the City of Danville as a party. This court held,
“Although CR 15.03 provides that an amendment shall relate back to the date of the original pleading ‘(W)henever the *788claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth * * ⅜ in the original pleading * * * ’ the rule is inapplicable if the amendment substitutes a different party defendant after the statute of limitation has run.”
The accident to Smiley occurred on November 14, 1969, but no claim against the board members individually was made until January 1972, when the second amendment was tendered. It is my opinion that the trial court made no error in rejecting this amendment for the reason that any claim against the board members on the basis of their liability as individuals was barred by the statute of limitations. Cheshire v. Barbour, Ky., 481 S.W.2d 274, 276 (1972). Furthermore, allowing an amendment to a pleading is discretionary. CR 15.01. The trial court did not abuse its discretion in rejecting an amended complaint which was tendered on the trial date, a day 19 months after the action was started and long after a motion for summary judgment had been made. Johnston v. Staples, Ky., 408 S.W.2d 206 (1966).
For the reasons expressed herein, I respectfully dissent.