Feinstein v. Edward Livingston & Sons, Inc.

• Decision Date: 14 September 1970
• Docket Number: No. 2,No. 54388,54388,2
• Citation: 457 S.W.2d 789
• Parties: Benton S. FEINSTEIN, Plaintiff, v. EDWARD LIVINGSTON & SONS, INC., Appellant-Defendant and Third Party Plaintiff, v. GREER HYDRAULICS, INC., Respondent and Third Party Defendant, v. W. B. REALTY CORP., Third Party Defendant
• Court: Missouri Supreme Court

Page 789

457 S.W.2d 789

Benton S. FEINSTEIN, Plaintiff, v. EDWARD LIVINGSTON & SONS, INC., Appellant-Defendant and Third Party Plaintiff, v. GREER HYDRAULICS, INC., Respondent and Third Party Defendant, v. W. B. REALTY CORP., Third Party Defendant.

No. 54388.

Supreme Court of Missouri, Division No. 2.

Sept. 14, 1970.

William H. Sanders, Larry L. McMullen, David C. Trowbridge, Kansas City, for appellant, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, of counsel.

James W. Benjamin, Cecil L. Caulkins, Rogers, Field, Gentry, Benjamin & Robertson, Kansas City, for respondent.

DREW W. LUTEN, Jr., Special Judge.

This action was brought by the plaintiff, Benton S. Feinstein (hereinafter referred to as 'Feinstein'), seeking from the defendant, Edward Livingston & Sons, Inc. (hereinafter referred to as 'Livingston'), damages of $10,000.00 for allegedly being injured while a business invitee upon the premises of a car-wash establishment, owned and operated by one De Cesare, as the result of the explosion of a component, described as the 'accumulator,' of a carwash system in operation there. His petition was in three counts, one count charging negligence of Livingston in the design, manufacture, assembly, inspection and supplying of the car-wash system and its component parts, including the accumulator thereof, another count charging negligence of Livingston in supplying a defective, dangerous and unsafe car-wash system, in that it included as one of its component parts a defective accumulator, with Livingston knowing that it would be purchased and used without inspection, and a third count charging Livingston with breach of warranty.

Livingston filed an answer to Feinstein's petition, and later, upon motion therefor being granted, filed a third-party petition (which shall later be discussed in more detail) against the third-party defendant, Greer Hydraulics, Inc. (hereinafter referred to as 'Greer'), seeking indemnity upon the ground that Greer negligently, and in breach of warranty, manufactured and supplied to Livingston the part of the car-wash system, the accumulator, which exploded.

Greer filed a motion to dismiss the third-party petition of Livingston, upon the grounds (1) that such petition failed to state a claim upon which relief could be granted, and (2) that the plaintiff Feinstein's petition having charged the defendant Livingston with primary and active negligence, and breach of warranty, Livingston had no right of indemnity against Greer.

Greer's motion to dismiss Livingston's third-party petition was overruled on July 11, 1968. Greer then filed an answer, and, some six weeks later, filed a motion for summary judgment, supported by affidavit and certified record documents to the effect that Feinstein had previously filed against Greer a similar lawsuit in the Superior Court of Los Angeles County, California, which had resulted in a verdict and final judgment in favor of Greer and against Feinstein, and that plaintiff Feinstein, having once failed in his claim, should not under the law be permitted to again raise the same issues in this proceeding. That motion alternatively prayed for dismissal of this action, for a summary judgment in favor of the movant (Greer) upon all issues, or for a summary judgment in favor of the movant (Greer) upon such part of the issues as the court below might determine to have been finally adjudicated in the California suit.

Subsequently, Greer filed an application (motion) seeking, as an alternative to its motion for summary judgment, reconsideration of the action of the court in overruling its motion to dimiss.

Thereafter, on December 4, 1968, the court below entered the following order.

'Now on this 4th day of December, 1968, the court having fully considered the application of the defendant, Greer Hydraulics, Inc., for reconsideration of its motion to dismiss, in the alternative to its motion for summary judgment and after considering all of the matters which have been filed by all of the parties in connection with the application, motions and suggestions, the court finds that it erred in originally overruling the third-party defendant, Greer Hydraulics, Inc.'s, motion to dismiss the third-party plaintiff's first amended petition in its order dated July 11, 1968, and finds that the motion of Greer Hydraulics, Inc., dismissing the third-party plaintiff's first amended petition as to defendant, Greer Hydraulics, Inc., should be sustained.

'NOW, THEREFORE, IT IS HEREBY ORDERED that the order of July 11, 1968, in which 'third-party defendant's motion to dismiss third-party plaintiff's first amended petition' was overruled, is hereby set aside and the court hereby sustains the motion of third-party defendant, Greer Hydraulics, Inc., to dismiss third-party plaintiff's petition and first amended petition as to defendant, Greet (sic) Hydraulics, Inc., for reason that said third-party petition and first amended petition fail to state a cause of action or claim upon which relief can be granted against third-party defendant.

'The motion of defendant, Greet (sic) Hydraulics, Inc., for summary judgment has become moot as a result of the foregoing above order of this court; however, the court does find that said motion for summary judgment has merit and that the plaintiff in this cause would be estopped upon the record and the principles of res adjudicata from re-asserting or re-litigating the issues which were decided in favor of defendant, Greer Hydraulics, Inc., arising out of this same subject matter in an action in the Superior Court of the State of California for the County of Los Angeles in Cause No. 869158.

'Now, therefore, the third-party defendant, Greer Hydraulics, Inc., is hereby dismissed from this action with its costs taxed against and to be paid by the third-party plaintiff, Edward Livingston & Sons, Inc.

'This order is hereby designated a final judgment dismissing the claim against third-party defendant for failure to state a cause of action against third-party defendant.' Livingston duly appealed to this Court.

Ordinarily, the ruling on a motion to dismiss is confined to the face of the petition. Hall v. Smith, Mo., 355 S.W.2d 52, 55(1); Pogue v. Smallen, Mo., 285 S.W.2d 915, 916(1); Baysinger v. Hanser, 355 Mo. 1042, 199 S.W.2d 644, 645--646(1); Section 509.300, RSMo V.A.M.S. In this case, however, since Livingston's third-party petition is one seeking indemnity, it is appropriate for us to consider, and the parties to this appeal in their briefs are in agreement that we should consider, both Feinstein's petition, as plaintiff, and Livingston's third-party petition, to determine whether a cause of action is stated on the part of Livingston. State ex rel. Siegel v. McLaughlin, Mo.App., 315 S.W.2d 499, 502(1). We consider only the facts properly pleaded in those petitions, assuming such facts as true, and giving to those facts all reasonable intendments in favor of a sufficient statement of a claim upon which relief can be granted. Hall v. Smith, supra.

This Court has repeatedly stated the doctrine that, 'It is the general rule, where one person has been exposed to liability and compelled to pay damages on account of the negligence of another, the first has a right of action against the other for indemnity when the parties are not in pari delicto. In cases where one party creates the condition which causes injury and the other does not join therein, but is exposed to liability on account of it, the rule that one of two joint tort-feasors cannot maintain an action against the other for indemnity does not apply.' Barb v. Farmers Insurance Exchange (1959, Div. 1), Mo., 281 S.W.2d 297, 304(11); Kansas City Southern Ry. Co. v. Payway Feed Mills, Inc. (1960, Div. 1), Mo., 338 S.W.2d 1, 5(1, 2). See, also, Woods v. Juvenile Shoe Corporation of America (1962, Div. 1), Mo., 361 S.W.2d 694, 697(4--5); McDonnel Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co. (1959, Div. 1), Mo., 323 S.W.2d 788, 794--795(6); Crouch v. Tourtelot (1961, Banc), Mo., 350 S.W.2d 799, 805--806(10); Busch & Latta Paint Co. v. Woermann Const. Co. (1925, Div. 2), 310 Mo. 419, 276 S.W. 614; Restatement of the Law of Restitution, § 95. And, under the rules laid down in the Woods, Kansas City Southern, McDonnell and Crouch cases, Livingston was not in...