Crouch v. Tourtelot

• Citation: 350 S.W.2d 799
• Decision Date: 13 November 1961
• Docket Number: No. 47971,47971
• Parties: Mayma CROUCH, Plaintiff, v. Dale TOURTELOT, Administrator of the Estate of J. S. Brown, deceased, Defendant-Appellant, Virgil H. Crouch, Defendant-Respondent.
• Court: United States State Supreme Court of Missouri

Page 799

350 S.W.2d 799

Mayma CROUCH, Plaintiff, v. Dale TOURTELOT, Administrator of the Estate of J. S. Brown deceased, Defendant-Appellant Virgil H. Crouch, Defendant-Respondent.

No. 47971.

Supreme Court of Missouri, En Banc.

Nov. 13, 1961.

William H. Burden, Joplin, for appellant.

Robert E. Seiler, Joplin, Seiler, Blanchard & Van Fleet, Joplin, of counsel, for respondent.

EAGER, Judge.

This is an appeal from the dismissal of a third-party petition, the order being designated as a final judgment. See Rule 82.06, V.A.M.R. The case arises from an automobile collision occurring in Jasper County on September 25, 1955. We find it necessary to digest the pleadings generally. The original plaintiff, Mayma Crouch, sued the Administrator of J. S. Brown as sole defendant and alleged: that she was a passenger in her husband's car proceeding northerly on Highway 66; that it had collided with another car proceeding ahead of theirs in the same direction, after which her husband had stopped and alighted, leaving his car on the pavement, headed east; that decedent Brown, driving southerly on the highway collided violently with the car in which plaintiff was still seated, due to negligence on his part as alleged in six specified grounds; these were: excessive speed, failing to maintain a vigilant lookout, failure to keep his car properly under control, failure to keep his car as near as practicable to the right hand edge of the pavement, failure to stop, slacken or change course, and running into collision with plaintiff's husband's car when it was stopped in plain view. Plaintiff further alleged that she suffered serious and permanent injuries which 'were directly and proximately caused by the negligent and carelessness' of Brown. She prayed damages of $25,000. Defendant filed an answer in which he denied the substantive allegations of the petition and alleged contributory negligence on plaintiff's part and sole negligence on the part of her husband; he also alleged the existence of a joint undertaking and the applicability of the doctrine of imputed negligence.

Thereafter the defendant filed by leave of court his third-party petition (and amended petition) against Virgil H. Crouch, plaintiff's husband, under Sec. 507.080, RSMo 1949, V.A.M.S. ¹ The record does not show notice to plaintiff but no objection is made on that score. Therein defendant referred to plaintiff's amended petition and attached a copy thereof as 'Exhibit A'; this made plaintiff's amended petition 'for all purposes' a part of the third-party petition. Rule 55.14. Hereafter, for clarity, we shall sometimes refer to the third-party defendant as 'Crouch,' and to the third-party plaintiff as 'Brown' (though actually the latter is Brown's Administrator); the parties have occasionally confused the technical designations, and we merely seek to simplify the continual references. The third-party plaintiff alleged (omitting uncontroverted allegations): that Crouch had collided with the rear of another car proceeding northeasterly on Highway 66 ahead of his; that this occurred after lights were required; that Crouch's right front headlight was damaged so that it would not burn, but that his car was 'operable'; that Crouch alighted but left his car standing in the 'left hand lane' of the pavement at the intersection of a black-topped road and just south of a curve in Highway 66; that Brown, several minutes later, came around this curve, driving southwesterly and, 'blinded by the lights from approaching traffic,' collided with the front end of Crouch's car in which plaintiff was still seated; that the collision was 'directly and proximately caused and occasioned solely' by the negligence of Crouch in that: he created a 'dangerous condition on the highway' by leaving his car unattended in the west lane of the traveled portion of the highway for several minutes, without proper lighting or other warning, and thus obstructed free passage thereon; he knew or should have known of the heavy travel and that lights on other cars might blind approaching motorists or that the one light remaining on his car might mislead approaching drivers; and he negligently failed to drive his car onto the shoulder or onto a black-topped road located nearby. Brown further alleged: that by reason of the collision with the stopped vehicle 'and the mere fact of said collision while plaintiff was seated therein the allegations of said collision in plaintiff's petition stated a cause of action against third-party plaintiff's decedent and compelled the defendant and third-party plaintiff to defend said action' despite the fact that as between Brown and Crouch the collision was caused solely by the negligence of Crouch; that Brown's liability, if any, was 'passive, secondary or constructive and is based on the mere fact that collision occurred * * * and is not based upon any direct, primary or active negligence' of Brown, who had the right to assume that the highway would be free of 'obstructions or dangerous conditions'; that Brown was therefore entitled to be indemnified by Crouch for any and all liability or damages that he might sustain in defending plaintiff's action, plus his expenses, and he prayed judgment over against Crouch therefor.

Crouch, as the third-party defendant, filed his motion to dismiss the third-party petition (and amended petition) for the reasons: that it failed to state a claim upon which relief could be granted; that plaintiff could not legally amend her petition so as to accept Crouch as a defendant because of the husband-wife relationship; that defendant should not be permitted to hold the husband indirectly responsible on a liability for which he, the husband, would not be directly responsible to plaintiff; that no relationship was alleged between Crouch and Brown which would create a liability on the latter for Crouch's acts; that no facts were alleged to show that Brown's liability was derivative or constructive; that on defendant's own allegations Brown and Crouch, if the latter was liable at all, were joint tort-feasors, and that the only basis of any liability of the defendant to the plaintiff would be negligence on Brown's part as alleged in the original petition.

As already indicated, the court sustained the motion to dismiss the third-party petition and entered a final judgment of dismissal. While it is immaterial to the present issues, we note that Brown apparently died sometime later from injuries sustained in the collision.

The parties have raised no question of our jurisdiction, but that question was suggested at the oral argument. More specifically, counsel for appellant was asked whether the amount claimed in the third-party petition did not rest upon a contingency, namely, the uncertain amount which plaintiff might eventually recover from the original defendant, if anything. We have concluded that we do have jurisdiction of the appeal. It is true, of course, that the jurisdiction of this court must affirmatively appear from the record, without speculation or contingency. Missouri Managerial Corp. v. Pasqualino, Mo.App., 323 S.W.2d 244, 247; Cotton v. Iowa Mutual Liability Insurance Co., 363 Mo. 400, 251 S.W.2d 246, 248; Kansas City v. National Engineering & Mfg. Co., Mo., 265 S.W.2d 384, 385; National Surety Corp. v. Burger's Estate, Mo., 183 S.W.2d 93, 95; In re Jackson's Will, Mo.App., 291 S.W.2d 214, 218. But we have also held in many cases that where plaintiff has been finally defeated on the pleadings or by adverse judgment, the amount which he has bona fide claimed in his petition fixes our jurisdiction as the 'amount in dispute' under Section 3, Article 5, Constitution of Missouri, 1945, V.A.M.S. Burroughs v. Lasswell, 336 Mo. 463, 79 S.W.2d 107; Dille v. St. Luke's Hospital, 355 Mo. 436, 196 S.W.2d 615; Nydegger v. Mason, Mo., 315 S.W.2d 816; Page v. Laclede Gas Light Co., Mo., 245 S.W.2d 23; Burke v. Pappas, 316 Mo. 1235, 293 S.W. 142; Harris v. Bates, 364 Mo. 1023, 270 S.W.2d 763. In fact this rule has become so general that in recent years there has been little discussion in the opinions which have applied it. This court does reserve the right to examine the entire record in order to ascertain if a jurisdictional amount has been improperly or fictitiously alleged. Strothkamp v. St. John's Community Bank, Inc., Mo., 329 S.W.2d 718; Daly v. Schaefer, Mo.App., 331 S.W.2d 150; Buddon Realty Co. v. Wallace, Mo., 188 S.W.2d 28, 29. There are no facts of record here to detract from the jurisdictional averments of the pleadings and the plaintiff has specifically alleged very substantial injuries. This case differs from the ordinary one in that the appellant is a third-party plaintiff, and the original plaintiff's claim has not been adjudicated adversely. However, the third-party plaintiff's claim has been so adjudicated and, absent any fact of record which indicates the contrary, we hold that the amount claimed in good faith by plaintiff from defendant, for which the defendant here seeks full indemnity, fixes the amount in dispute for the purpose of our jurisdiction.

Since the case of State ex rel. McClure v. Dinwiddie, 358 Mo. 15, 213 S.W.2d 127, it has been universally recognized that when a third-party petition is filed the acceptance of the third party as a defendant is optional with the plaintiff; if he accepts that party he should amend his petition, so indicating. See also: State ex rel. and to Use of Merino v. Rose, 362 Mo. 181, 240 S.W.2d 705. There has been no such acceptance here, and Crouch says that the original plaintiff could not proceed against him because of the husband-wife relationship, citing Brawner v. Brawner, Mo., 327 S.W.2d 808. He also urges that the court may not require the doing indirectly of what plaintiff may not do directly. In our view of the case we shall not reach that question.

This third-party claim is not one for contribution, but for indemnity in toto. Contribution is not permitted between...