Camden v. St. Louis Public Service Co.

• Decision Date: 16 December 1947
• Citation: 206 S.W.2d 699,239 Mo.App. 1199
• Parties: Mary Camden, an Infant, by Una M. Camden, Her Next Friend, Plaintiff-Respondent, v. St. Louis Public Service Company, a Corporation, and Isadore Becker and Sarah Becker, Doing Business as Nifty Cleaners & Laundry Company, Defendants, St. Louis Public Service Company, a Corporation, Defendant-Appellant
• Court: Missouri Court of Appeals

206 S.W.2d 699

239 Mo.App. 1199

Mary Camden, an Infant, by Una M. Camden, Her Next Friend, Plaintiff-Respondent, v. St. Louis Public Service Company, a Corporation, and Isadore Becker and Sarah Becker, Doing Business as Nifty Cleaners & Laundry Company, Defendants, St. Louis Public Service Company, a Corporation, Defendant-Appellant

Court of Appeals of Missouri, St. Louis District

December 16, 1947

Appeal from the Circuit Court of the City of St. Louis; Hon. James E. McLaughlin, Judge.

Affirmed.

Charles F. Hamilton for appellant.

(1) A plaintiff who originally joins two defendants and proceeds to trial claiming that they are joint tort-feasors, cannot after a jury verdict against both defendants, dismiss as to that defendant whose motion for a new trial is sustained by the Court. Section 20, Civil Code of Missouri. (a) The Court erred in allowing plaintiff to dismiss as to defendants Becker and in ordering final judgment as against the appellant. (b) The Court erred in failing to order the verdict and judgment against appellant held in abeyance until the determination of the liability of defendants Becker. (2) Having allowed plaintiff to dismiss as to defendants Becker the Court erred in not holding the verdict and judgment against appellant in abeyance so as to give appellant the opportunity to move for leave as a third-party plaintiff to file a petition and serve a summons upon the defendants Becker. Section 20, Civil Code of Missouri. (a) A plaintiff will not be allowed to foreclose the rights of a defendant to bring in a third-party defendant by dismissing as to such party after trial.

Everett Hullverson and Forrest Boecker for respondent.

(1) The trial court did not error in refusing to hold the verdict and judgment against appellant in abeyance beyond the time which the Civil Code provides for a party to make a motion for a new trial and beyond the time provided for the Court to set aside a judgment on its own motion. The trial court has no authority to extend the time for granting a new trial and the verdict and judgment have now become final. Sections 6(b) and 116, Civil Code of Missouri; Federal Rules of Civil Procedure, Rules 6(b) and 59(b); Safeway Stores v Coe, 136 F.2d 771. (2) Appellant had ample opportunity to file a cross-claim against his co-defendant but neglected to do so and it is not error for the trial court to refuse appellant's request to file a third-party complaint at a time when the plaintiff has dismissed his case as to one defendant and the judgment as to the other defendant has become final. Section 77, Civil Code of Missouri; Bohn v American Export Lines Inc., 41 F.Supp. 228. (3) Respondent, as plaintiff in the trial court, had the right to dismiss her cause of action against one defendant after a new trial had been granted to that defendant and before the case had been finally submitted to the jury on a new trial. Section 99(a), Civil Code of Missouri; Argeropoulos v. Kansas City Railways Company 201 App. 287, 292, 212 S.W. 369, 372.

McCullen, P. J. Anderson and Hughes, J. J., concur.

OPINION

McCULLEN

This suit was brought by plaintiff against St. Louis Public Service Company, a corporation, hereinafter called Service Company, and Isadore Becker and Sarah Becker, as defendants. Plaintiff's petition alleged that on January 30, 1946, she was a passenger in an automobile truck owned and operated by defendants Isadore Becker and Sarah Becker, and that said truck and a Jefferson Avenue streetcar, owned and operated by defendant Service Company, through its agents and servants, came into collision at Jefferson and Olive Streets, thereby causing plaintiff to suffer personal injuries for which she prayed $ 5000 damages. Plaintiff's petition alleged that her injuries were the direct result of the negligence and carelessness of all the defendants.

A trial before the court and a jury resulted in a verdict in favor of plaintiff and against all defendants in the sum of $ 2500. The defendants Becker filed a motion for a new trial which was sustained by the court on the ground that the jury was improperly instructed in Instruction No. 2, which was offered by and given on behalf of plaintiff. Said instruction was directed solely to the question of the liability of the defendants Becker. The defendant Service Company did not file any motion for a new trial. Plaintiff then filed a motion dismissing as to the defendants Becker and praying for final judgment against the defendant Service Company. Said Service Company then filed a motion praying that the court enter its order holding in abeyance the verdict and judgment against said company until a retrial of the cause determined the liability of defendants Becker, or, in the alternative, if the court sustained said motion of plaintiff, then to allow defendant Service Company a reasonable time in which to file a third-party petition against the defendants Becker.

The above mentioned motion of plaintiff was sustained and the court ordered the cause dismissed as to the Beckers, and also ordered final judgment against the defendant Service Company. At the same time, defendant Service Company's said motion in the alternative was overruled. Defendant Service Company appealed from the court's orders.

The defendant Service Company contends that the court erred in allowing plaintiff to dismiss as to the defendants Becker and in ordering final judgment against said company. Also, that the court erred in failing to order the verdict and judgment against said company held in abeyance until the determination of the liability of defendants Becker. It is strongly urged by said Service Company that the court, having allowed plaintiff to dismiss as to defendants Becker, committed error in not holding the verdict and judgment against the Service Company in abeyance so as to give it an opportunity to move for leave as a third-party plaintiff to file a petition and serve a summons upon the defendants Becker.

The reason advanced for said Service Company's contention is that a plaintiff will not be allowed to foreclose the right of a defendant to bring in a third-party defendant by dismissing as to such party after trial. In support of these contentions the defendant Service Company relies upon Section 20 of the Civil Code of Missouri. Said section is as follows:

"(a) Before filing his answer, a defendant may move ex parte or, after the filing of his answer, on notice to the plaintiff, for leave as a third-party plaintiff to file a petition and serve a summons upon a person not a party to the action who is or may be liable to him or to the plaintiff for all or part of the plaintiff's claim against him. If the motion is granted and the petition is filed and summons served, the person so served, hereinafter called the third-party defendant, shall make his defenses, counter-claims and cross-claims against the plaintiff, or any other party as provided in this code. The third-party defendant may assert any defenses which the third-party plaintiff has to the plaintiff's claim. The third-party defendant is bound by the adjudication of the third-party plaintiff's liability to the plaintiff, as well as of his own to the plaintiff or to the third-party plaintiff. The plaintiff may amend his pleadings to assert against the third-party defendant any claim which the plaintiff might have asserted against the third-party defendant had be been joined originally as a defendant. A third-party defendant may proceed under this section against any person not a party to the action who is or may be liable to him or to the third-party plaintiff for all or part of the claim made in the action against the third-party defendant.

"(b) When a counterclaim is asserted against a plaintiff, he may cause a third-party to be brought in under circumstances which under this section would entitle a defendant to do so."

Defendant Service Company argues that before the passage of the new Civil Code of Missouri, of which Section 20, supra, is a part, a plaintiff in a negligence action had the right to proceed against any one of two or more joint tort-feasors, and that the choice of defendants lay solely with the plaintiff. Said defendant cites Carr's Missouri Civil Procedure, Volume I, page 205, to the effect that prior to the new Civil Code of Missouri, Laws Missouri, 1943, pp. 353-397, Mo. R. S. A. Sections 847.1-847.145, if a plaintiff sued several joint tort-feasors and a joint judgment was obtained, a joint judgment debtor who paid the judgment was entitled to contribution from the other judgment debtors, and that no contribution was authorized if separate judgments were obtained.

To emphasize the difference between the procedure under the new Civil Code of Missouri, supra, and that under the prior law, defendant Service Company quotes further from Carr's Missouri Civil Procedure, Vol. I, p. 205, as follows:

"The new code qualifies the right of the party injured to select the joint tort-feasors against whom he desires to obtain judgment. He can still sue one or more of them as he desires, but under the code the joint tort-feasor sued may by third-party petition, with leave of the trial court, cause the joinder of additional or all joint tort-feasors as parties in the one action. If joint liability is supported by the evidence, based upon the issues made by plaintiff's petition, the third-party petition and the other pleadings, and a joint judgment is obtained, the joint judgment defendant making payment is entitled to contribution from the other judgment debtors."

Defendant Service Company then argues that, in the case at bar, if plaintiff had brought suit against the Service Company only said Company would have brought the defendants Becker into the case under a third-party petition, and in...