Ex parte Huguley Water System

• Decision Date: 26 August 1968
• Docket Number: 5 Div. 866
• Citation: 282 Ala. 633,213 So.2d 799
• Parties: Ex parte HUGULEY WATER SYSTEM et al.
• Court: Alabama Supreme Court

Page 799

213 So.2d 799

282 Ala. 633

Ex parte HUGULEY WATER SYSTEM et al.

5 Div. 866.

Supreme Court of Alabama.

Aug. 26, 1968.

London, Yancey, Clark & Allen and Thos. R. Elliott, Jr., Birmingham, and Ball & Ball, Montgomery, for petitioners.

Samford, Torbert & Denson, John V. Denson, II, and W. F. Horsley, Opelika, for respondent.

KOHN, Justice.

The Petitioners, Huguley Water System, a corporation, and Boan Contracting Company, Inc., a corporation, ask for writ of mandamus in a suit styled Olen B. Rice v. City of Lanett, Alabama; Huguley Water System, a corporation, Boan Contracting Company, Inc., a corporation; which was filed and is now pending in the Circuit Court of Chambers County, Alabama. Petitioner Huguley Water System, a corporation, filed a third party complaint against Troy E. Watford and Associates, Inc. in accordance with Title 7, Section 259(2) of the Code of Alabama. On January 26, 1968, Huguley Water System, a corporation, one of the original defendants, filed a cross claim against co-defendant Boan Contracting Co., Inc., a corporation, in accordance with Title 7, Section 259(1) of the Code of Alabama. On February 5, 1968, Boan Contracting Co., Inc. filed a plea of the general issue in short by consent to the cross complaint filed against it by Huguley Water System. On February 21, 1968, Boan Contracting Co., Inc., a corporation, filed a cross claim against Huguley Water System, a corporation, in accordance with Title 7, Section 259(1)(a) of the Code of Alabama. On March 20, 1968, Huguley Water System, a corporation, filed a demurrer to the cross complaint of Boan Contracting Co., Inc., which had been filed against it. On July 15, 1968, the plaintiff in the original action filed a motion to strike the third party complaint of Huguley Water System v. Troy E. Watford and Associates, Inc. The court granted the motion to strike on July 15, 1968, and it is the claim of the petitioners that said order was contrary to the law of the State of Alabama and Title 7, Section 259(2) of the Code of Alabama, and that mandamus was the only adequate remedy available to petitioners. On July 15, 1968, Plaintiffs in the original action filed a motion to strike the cross claim filed by defendants (Petitioners), Boan Contracting Co., Inc., a corporation, and Huguley Water System, a corporation. Troy E. Watford and Associates, Inc., a corporation, is not a party to this mandamus nor was it an original defendant. The court granted the motion to strike on July 15, 1968, and petitioners claim said order was contrary to the laws of the State of Alabama and Title 7, Section 259(1)(a) and that mandamus was the only adequate remedy available to petitioners. Petitioners further allege that the trial of the original case of Olen B. Rice v. Huguley Water System and Boan Contracting Co. et al is set for September 2, 1968, and that in the present status of the case petitioners will be denied the right to have said cross claims and third party actions litigated in the principal case in accordance with the provisions of Title 7, Section 259(2), Code of Alabama. Petitioners pray for relief in that their contention is that there was no authority for the court to grant the motion to strike the cross claims and third party complaints and there was an abuse of discretion in so doing and that the granting of said motion to strike was not authorized by the laws of Alabama. Petitioners also rely on the same reasons objecting to the court granting the motion to strike the cross claim of Boan Contracting Co. v. Huguley Water System and of the granting of the motion to strike the cross claim of Huguley Water System v. Boan Contracting Co. and that said order should be vacated, annulled and set aside, and the cross complaint should be reinstated in the pleadings formulating the issues in said cause. Hence, the action of the petitioners in seeking an alternative writ of mandamus or rule nisi directed to Honorable L. J. Tyner, as Judge of the Fifth Judicial Circuit of Alabama.

On August 7, 1968, said petition for writ of mandamus was orally argued before this court and the following order was made by this court:

'Let Rule Nisi issue as prayed. The respondent through Counsel in open Court waives the issuance of rule nisi and has filed his answer to the petition for mandamus. By agreement of Counsel, the petitioners shall have ten days from this date to file their briefs; the respondent shall have three days from due service of petitioners' briefs within which to file his brief. Thereupon the Cause shall be submitted on briefs on the Petition for writ of mandamus and on the answer of the Respondent Judge.'

In substance, petitioners complain of the trial court's order dated July 15, 1968, granting motions to strike cross claims of Huguley Water System v. Boan Contracting Company, Boan Contracting Company v. Huguley Water System, and third party complaint filed by Huguley Water System against Troy E. Watford and Associates, Inc., in the cases of Annie K. Rice v. Huguley Water System, a corporation, et al, and Olen B. Rice v. Huguley Water System, et al. There were two cases below: one filed by Annie K. Rice (Mrs. Olen B. Rice), and the other by Olen B. Rice. The instant case involves Olen B. Rice and a companion case, 5 Div. 867, involves Annie K. Rice (Mrs. Olen B. Rice), 282 Ala. 640, 213 So.2d 806. The issues involved in both the Annie K. Rice suit and the Olen B. Rice suit are identical.

To have a proper understanding of this case it is necessary to summarize the facts. The plaintiffs' action in the Circuit Court of Chambers County, Alabama, claimed damages for property destruction resulting from an explosion which occurred on November 26, 1966. The Plaintiff Olen B. Rice originally brought suit against the City of Lanett, Huguley Water System, Boan Contracting Company and various fictitious defendants. Annie K. Rice originally brought suit against Huguley Water System, Boan Contracting Company and various fictitious defendants. It was claimed that the City of Lanett operated a gas line adjacent to the property of plaintiffs and that Huguley Water System and Boan Contracting Company negligently laid a water line so close to the gas line that as a result the gas line broke, causing gas to escape into plaintiff's building and explode. In support of the petition for writ of mandamus the petitioners claim first mandamus is the appropriate remedy to reinstate the third party pleadings. For reasons later appearing in this opinion the question of whether mandamus is the proper remedy is not dispositive of this cause. Whether a motion to strike is a proper remedy as contended is not important for the reasons noted later on in this opinion.

In substance, the respondent claims that a circuit court has the inherent power to strike pleadings and that the Alabama third party and cross claim statutes are borrowed from and modeled after Federal law, and therefore Federal decisions relative to striking third party complaints and cross complaints should be looked to for guidance in applying the Alabama acts. Mainly, the respondent based its right to strike the third party complaints and cross claims on the grounds it was done to avoid prejudice to the plaintiffs' case and assigns as its reasons in its brief that the plaintiffs' case will be irreparably prejudiced if the jury is forced to decide the issues involved in third party actions and cross claims, further claiming that the damage action filed by the plaintiff resulting from an explosion is by its very nature an exceedingly complex and complicated suit, and that the liability involving the various defendants will require proof and supporting testimony of a highly technical nature and that there are numerous potential expert witnesses for both sides. Respondent further is claiming that almost 600 pages of depositions already have been taken in preparation of this case for trial and that the third party action and cross claims will make the jury's task impossible; and that further the third party actions and cross claims will bewilder the jury by the multiplicity of issues submitted to them for decision. Also that if the third party actions and cross claims are reinstated it will work a continuance of the trial because a great deal of further preparation will be necessary to prepare those cases along with the original case. And that petitioners will suffer no damage from the striking of their third party action and cross claims in that they can all file separate suits claiming their rights of indemnity and that the actions of respondent in striking the third party action and cross claims did not serve to deprive any party of its rights or remedies, but merely preserved for the plaintiff his right to a fair trial. Respondent further claimed that the issues involved in the third party action and cross claim could not properly be presented to the jury which tries the original suit for there could be no proper charge or instruction to the jury which the trial court could make regarding their duties in respect to the third party action and cross claim for among other things, there is no apportionment of damages among joint tort feasors allowed under Alabama law. In substance respondent further contends that all the issues involved in the indemnification of the third party plaintiffs and cross complainants cannot be clearly presented to the jury which will try the original suit.

Here the issue may be simply stated as presenting the single question as what is the duty of a trial court when faced with third party and cross claims pursuant to Sections 259(1) and 259(2) of Title 7 of the Code of Alabama (1940) (Recompiled 1958). We think we should first direct our attention to subparagraph (b) of Title 7, Section 259(1), which reads as follows:

'When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a...