Flenner v. Southwest Missouri R. Co.

• Decision Date: 31 August 1926
• Docket Number: No. 4089.,4089.
• Parties: FLENNER v. SOUTHWEST MISSOURI R. CO. et al.
• Court: Missouri Court of Appeals

290 S.W. 78

FLENNER v. SOUTHWEST MISSOURI R. CO. et al.

No. 4089.

Springfield Court of Appeals. Missouri.

August 31, 1926.

Rehearing Denied January 21, 1927.

Appeal from Circuit Court, Jasper County; S. W. Bates, Judge.

Action for personal injuries by Ruby Flenner against the Southwest Missouri Railroad Company and W. H. Cook. Verdict was rendered for plaintiff against the Southwest Missouri Railroad Company and in favor of W. H. Cook. From the judgment the Southwest Missouri Railroad Company appeals. Affirmed.

McReynolds, McReynolds & Flanigan, of Carthage, for appellant.

Sizer & Gardner, of Monett, for respondent.

COX, P. J.

Action for personal injuries against two defendants, to wit, Southwest Missouri Railroad Company and W. H. Cook. Trial by jury, verdict for plaintiff against the railroad company, and damages assessed at $6,000, and verdict in favor of W. H. Cook. The railroad company appealed.

The plaintiff was a passenger upon the railroad and was injured as a result of a collision at a highway crossing between the car of the railroad company, in which plaintiff was a passenger, and a motor bus owned by defendant Cook. It is conceded that there is sufficient evidence to take the case to the jury against appellant. Error is assigned in the instructions and in the release of defendant Cook.

It is contended by the appellant railroad company that it can avail itself of any error committed in favor of defendant Cook who was released, because they were charged as joint tort-feasors and by reason of that fact appellant would be entitled to contribution from defendant Cook, in case appellant should be required to pay the judgment, and the facts would show that defendant Cook was also liable. That question seems to depend upon the construction to be given section 4223, Stat. 1919, which, as far as pertains here, reads as follows:

"Defendants in a judgment founded on an action for the redress of a private wrong shall be subject to contribution, and all other consequences of such judgment, in the same manner and to the same extent as defendants in a judgment in an action founded on a contract."

The general rule of law, apart from the statute, is, that while all joint tort-feasors are individually and jointly liable to the injured party and he may sue all or only one, yet, aside from the statute, there is no right of contribution between them. There are apparent exceptions to this general rule, resting on the fact in a particular case that one party may not be guilty of any active wrong, and, as between that party and the one whose active wrong caused the injury and who is therefore primarily liable, he may be entitled to reimbursement for the whole amount he may be compelled to pay. There is a wide distinction between a right of reimbursement and the right of contribution. When the right of reimbursement exists, then the fact that both parties may be jointly liable to a third party for injury does not destroy the right of reimbursement. If, however, the facts are such that each may be liable to the party injured by reason of some wrongful act or neglect of his own which has contributed to the injury, and such act has been committed by him jointly with the other party charged with the tort, or is disconnected from any act of the other party but committed in such a way as to make him liable to the injured party independently of any act committed by the other party, then the right of contribution does not exist except by force of the statute. Kilroy v. St. Louis, 242 Mo. 79, 145 S. W. 769.

We are referred to a number of cases in which it has been held that one defendant in a case where two are sued as joint tort-feasors may appeal and in the appellate court take advantage of errors committed as to the other defendant, but an examination of those cases will show that in each case the judgment was against both or the relation between the defendants was such that the appellant, if compelled to pay the judgment, would have the right to reimbursement. There is another statute (section 8949, Stat. 1919) which applies to certain cities only, but which has no application here. We may note, however, that the wording of this latter section of the statute is such as to recognize that but for the statute the right of the city provided for in said section of the statute did not exist prior to its enactment. The statute we are now considering, to wit, section 4223, Stat. 1919, by its own terms applies only after judgment has been rendered against two or more joint tort-feasors. By its own language it applies only to "defendants in a judgment." That means that it does not apply in any case in which judgment goes against one and in favor of another defendant. Moudy v. St. Louis Dressed Beef & Provision Co., 149 Mo. App. 413, 426, 130 S. W. 476; City of Springfield v. Clement, 296 Mo. 150, 156, 246 S. W. 175.

Until after judgment, the plaintiff could control his own case, and could dismiss as to either party at any time and proceed against the other without encroaching upon the right of either. Voelker v. Hill-O'Meara Const. Co., 153 Mo. App. 1, 131 S. W. 907, 911...