Frank v. Sinclair Refining Co., 43244
| Decision Date | 13 April 1953 |
| Docket Number | No. 43244,No. 2,43244,2 |
| Citation | 256 S.W.2d 793,363 Mo. 1054 |
| Parties | FRANK v. SINCLAIR REFINING CO. et al. (two cases). FEILICH v. SINCLAIR REFINING CO. et al. (two cases). to 43247 |
| Court | Missouri Supreme Court |
Burnett, Stern & Liberman, Henry H. Stern, Rexford H. Caruthers, St. Louis, for appellants.
Moser, Marsalek, Carpenter, Cleary & Carter, Julian C. Jaeckel, St. Louis, for respondent, Sinclair Refining Co.
Evans & Dixon, John F. Evans, St. Louis, for respondents, J. Russell Ogle and Glenn Shoemaker.
BARRETT, Commissioner.
The four actions consolidated upon this appeal are for damages for personal injuries resulting from a collision between an automobile and a truck. The plaintiffs were riding in the automobile. The collision occurred on U. S. Highway 54, near Louisiana, in Pike County, on September 5, 1951. The truck was a two-ton Ford upon which was mounted a 650 gallon gasoline tank. The truck was owned by J. Russell Ogle, who operates a Sinclair gasoline bulk plant in Louisiana, and was driven by Glenn Shoemaker. Sinclair Refining Company is authorized to transact business in Missouri and has an office and place of business in the City of St. Louis. The suits were instituted in the City of St. Louis and service of process was had upon the Sinclair Refining Company by the service of summonses upon the company in St. Louis. The individual defendants, Ogle and Shoemaker, were served with process in Pike County. The plaintiffs' petitions allege that Ogle 'is and was in the employ of defendant Sinclair Refining Company in the distribution and transportation of the latter company's petroleum products,' and that Ogle employed Shoemaker as a driver of one of the vehicles used to transport Sinclair's petroleum products.
The individual defendants, Ogle and Shoemaker, filed joint motions to quash the summonses and returns and to dismiss the actions. The Sinclair Refining Company filed a separate motion to dismiss. In their joint motions the individual defendants set forth that they were residents of Pike County where the alleged causes of action accrued, and that they were joined with Sinclair Refining Company. As to that company the individuals allege 'that no claim or cause of action for and on account of the damages alleged in plaintiff's petition can or does exist against Sinclair Refining Company, and said defendant is not and cannot be legally liable on the claim and cause of action alleged in plaintiff's petition, and is not a proper or necessary party in this action.' The individual defendants then allege that the suits were instituted in the City of St. Louis against Sinclair Refining Company for the 'sole false and fraudulent purpose' of lodging venue in St. Louis rather than in Pike County. Therefore, it was alleged, the Circuit Court of the City of St. Louis did not acquire jurisdiction of the persons of the individual defendants. Sinclair Refining Company set forth as grounds for dismissing the actions that the petitions did not state claims against it upon which relief could be granted, that Sinclair did not own or have any interest in the truck involved in the collision, that Ogle and Shoemaker were not employees of Sinclair, and that Sinclair was not a proper party to the actions and was not joined in good faith, but solely for the purpose of fixing wenue of the actions in St. Louis against Ogle and Shoemaker who were not residents of St. Louis. There were no affidavits in support of Sinclair's motion to dismiss but Ogle's and Shoemaker's motions were supported by their affidavits which, in substance, stated facts indicating that neither of them were employees of Sinclair. Upon the hearing of the motions Sinclair offered in evidence, in addition to the affidavits, a copy of its contract with Ogle and the certificate of title to the truck involved in the collision. The plaintiffs offered in evidence the depositions of Ogle and Shoemaker and certain documentary evidence which they contend establishes that Ogle was Sinclair's employee and not an independent contractor. At the conclusion of the hearing upon the motions the trial court sustained the individuals's motions to quash and Sinclair's motions to dismiss. Thereafter the plaintiffs filed motions to set aside the orders and those motions were overruled and judgments of dismissal entered. The plaintiffs have appealed from the judgments of dismissal.
At the outset we are confronted with Sinclair's motion to dismiss the appeals for the reason that the orders of dismissal are not final judgments or appealable orders in that they 'deal only with the question of venue.' It is urged that the dismissals were entered upon the oral motions of the plaintiffs and were voluntarily made by the plaintiffs, and for that reason are not appealable. In this connection it is urged that a dismissal for improper venue is, by the terms of the statute, section 510.150 V.A.M.S., without prejudice and that the orders did not finally adjudicate the claims of the plaintiffs against the defendants.
If it were the fact, as Sinclair asserts, that these orders deal only with venue the respondents' position would be well taken because an order quashing the service for lack of venue is not a final appealable order or judgment. Evans v. Barham, Mo.Sup., 184 S.W.2d 424; Tobin Asphalt Products, Inc., v. Henwood, Mo.App., 199 S.W.2d 415; V.A.M.S. section 512.020. Except for the claim of fraudulent joinder, it is of necessity conceded that, under the allegations of the petition, Sinclair is authorized to transact business in Missouri and has an office in St. Louis, (the petition alleges that Sinclair Refining Company is a Missouri corporation), and therefore venue of the action is appropriately in St. Louis. V.A.M.S., Sec. 508.010; State ex rel. O'Keefe v. Brown, 361 Mo. 618, 621, 235 S.W.2d 304, 306. But it is only the motions of the individual defendants that raise the question of venue and those motions also raise the question of Sinclair's fraudulent joinder, and it is urged for that reason that process should be quashed. But Sinclair did not file motions to quash the process, its only motions were to dismiss, and one of the grounds for dismissal was that the petitions did not state claims against the defendants upon which relief could be granted. And, the dismissal of a petition for failure to state a claim upon which relief could be granted is of course a final appealable order. Jones v. Williams, 357 Mo. 531, 209 S.W.2d 907. But the respondents do not claim that the petitions upon their face fail to state causes of action, their claim is that the plaintiffs in fact do not have and could not have a cause of action against the defendant Sinclair Refining Company and, therefore, the joinder of that company was solely for the purpose of establishing venue in the City of St. Louis and was fraudulent. Willey v. Fyrogas Co., Mo.Sup., 251 S.W.2d 635. It is only in this manner and in this respect that Sinclair could or does challenge jurisdiction of the persons and venue. And it is only for this reason that the individual defendants could complain of the venue and that the trial court could have sustained their individual motions to quash the service. So in effect, at least as far as Sinclair is concerned, the trial court disposed of the plaintiffs' causes of action upon their merits. It is assumed that the respondents could and did properly present and raise the question of fraudulent joinder, State ex rel. Thompson v. Terte, 357 Mo. 229, 207 S.W.2d 487; Diehr v. Carey, 238 Mo.App. 889, 191 S.W.2d 296, but we are immediately concerned with whether the orders are final appealable judgments and not with the merits of the appeals. If the joinder of Sinclair was not pretensive and fraudulent the venue of the actions was appropriately in St. Louis and the trial court was in error in dismissing the actions as to the individual defendants. After the trial court sustained the defendants' motions, the plaintiffs filed motions to set aside the orders and those motions were also overruled. It was not until that point in the case that judgments of dismissal were in fact entered, prior to that time the transcript merely recited that the motions were sustained. And even though the judgments of dismissal recite that 'Thereupon comes plaintiff, by attorney, and upon oral motion' the actions are dismissed, that fact does not make the orders 'voluntary acts of these plaintiffs' so that the judgments are therefore dismissals without prejudice and not appealable for that reason. The judgments of dismissal are final for the purposes of these appeals and the motion to dismiss is overruled. State ex rel. Thompson v. Terte, supra; Willey v. Fyrogas Co., supra.
In this connection as well as with respect to the merits of the appeals it should be noted that this is the first instance of an appeal in which the proceedings or actions were terminated upon motion, affidavits and hearing under Section 509.290 of the Civil Code. When the Civil Code of Procedure was adopted the provision relating to summary judgments was rejected. 1 Carr, Civil Procedure, Sec. 7(e), p. 14; 9 Mo.L.R. 47, 63. However, in State ex rel. Thompson v. Terte, 357 Mo., loc.cit. 240, 207 S.W.2d loc.cit. 491-492, the court en banc, as to a claim of fraudulent joinder for the purpose of establishing venue, said, But that case was an original...
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