Dotson v. E. W. Bacharach, Inc., 46840

• Decision Date: 13 July 1959
• Docket Number: No. 46840,No. 2,46840,2
• Citation: 325 S.W.2d 737
• Parties: Floyd DOTSON, Plaintiff-Respondent, v. E. W. BACHARACH, INC. Defendant and Third-Party Plaintiff, Willard W. Starr, Third-Party Defendant and appellant
• Court: Missouri Supreme Court

Page 737

325 S.W.2d 737

Floyd DOTSON, Plaintiff-Respondent, v. E. W. BACHARACH, INC. Defendant and Third-Party Plaintiff Willard W. Starr, Third-Party Defendant and appellant.

No. 46840.

Supreme Court of Missouri, Division No. 2.

July 13, 1959.

Wm. F. Milligan, of Knipmeyer, Milligan, McCann & Millett, Kansas City, John E. Lancelot, McDonald, Tinker, Skaer, Quinn & Porter, Wichita, Kan., for appellant.

Arthur C. Popham, Arthur C. Popham, Jr., Kansas City, Popham, Thompson, Popham, Mandell & Trusty, Kansas City, of counsel, for respondent.

EAGER, Judge.

Plaintiff, Floyd Dotson, a resident of Kansas, filed suit in Jackson County on February 26, 1957, for personal injuries arising from an automobile collision. The collision occurred near Ft. Scott, Kansas, on June 30, 1956. Plaintiff alleged specific, primary negligence in several respects. The named defendant was E. W. Bacharach, Inc., a Missouri corporation, and service was duly had upon it. The driver of the other car was Willard W. Starr, also a resident of Kansas, who was alleged in plaintiff's petition to have been acting at the time within the scope of his employment for, and as agent of, the named defendant. Before answer was filed defendant Bacharach was granted leave to file, and it did file, a third-party petition against Starr; therein it alleged that if defendant was liable (or held liable) to plaintiff, then Starr was liable to defendant by way of indemnity, because defendant's liability, if any, would only result from Starr's negligent acts as its agent and upon the theory of respondeat superior. Apparently summons was issued for Starr, but neither a copy nor the specific order therefor is shown in the record; it could not be served because of his nonresidence. Defendant thereafter filed answer, consisting largely of denials, with a plea of contributory negligence. In due time Willard Starr, the third-party defendant, filed his entry of appearance and was given time to plead. Thereafter he filed an answer 'to all pleadings,' combined with a counterclaim against plaintiff Dotson. In the counterclaim Starr alleged the circumstances of the collision and sundry claims of specific, primary negligence on plaintiff's part, praying damages, both to his person and automobile, in the total amount of $50,000. Thereafter plaintiff filed various motions, including one to quash the order authorizing the filing of the third-party petition. This was overruled. The motion with which we are concerned was a motion of plaintiff to dismiss Starr's counterclaim for want of jurisdiction and venue. In this plaintiff alleged, generally, the foregoing facts, the fact that Starr had liability insurance coverage, that this policy afforded additional coverage to Bacharach and that the insurer's attorneys were defending for Bacharach, that the latter's claim of a right to indemnity was therefore fraudulent, and that Starr's attorneys and defendant's attorneys had conspired 'for the filing of said counterclaim'; also, that plaintiff refused to accept Starr as a defendant and had made no claims against him, that Starr had not been served with summons but had voluntarily entered his appearance, and that no proper venue or jurisdiction of the counterclaim existed in the Missouri Court. On February 19, 1958, the court sustained this motion to dismiss and ordered that Starr's counterclaim 'be and the same is hereby dismissed at said party's costs and that execution issue therefor.' Within ten days Starr, the third-party defendant, filed his notice of appeal from that order.

We are met first by the contention in respondent-plaintiff's brief that the appeal is premature because this order did not constitute a final judgment. We would be required to determine this as a matter of jurisdiction even were the point not raised. Deeds v. Foster, Mo., 235 S.W.2d 262, 265. In many cases our courts have held that a judgment, in order to be final and thus appealable under Section 512.020 RSMo 1949, V.A.M.S., must dispose of all parties and all issues in the case. Bays v. Lueth, Mo., 323 S.W.2d 236; Bennett v. Wood, Mo., 239 S.W.2d 325; Wicker v. Knox Glass Associates, 362 Mo. 614, 242 S.W.2d 566, 571; S. S. Kresge Co. v. Shankman, Mo.App., 194 S.W.2d 716, 717; Deeds v. Foster, Mo., 235 S.W.2d 262, 265. The principle has been held to preclude appeals from orders dismissing cross-claims, leaving other issues undisposed of. Kidd v. Katz Drug Co., Mo.App., 244 S.W.2d 605, 606; Stout Co. v. Inter-City Mfg. Co., Mo.App., 251 S.W.2d 978. Rule 3.29 (adopted Jan. 17, 1945) constitutes a modification of the doctrine to the extent therein provided; that Rule deals generally with the ordering and holding of separate jury trials on specific claims, and with...