Glick v. Ballentine Produce Inc., 51298

• Decision Date: 08 November 1965
• Docket Number: No. 2,No. 51298,51298,2
• Citation: 396 S.W.2d 609
• Parties: Wallace GLICK, by his Guardian and Curator, Bessie McGinty, and Bessie McGinty, individually, Appellants, v. BALLENTINE PRODUCE INCORPORATED, Charles James Harris, C. J. Harris, Alice J. Reed, Administratrix of the Estate of William Claire Reed, Deceased, Tom Joseph Jones, and Miller Chevrolet Company, Respondents
• Court: Missouri Supreme Court

Page 609

396 S.W.2d 609

Wallace GLICK, by his Guardian and Curator, Bessie McGinty, and Bessie McGinty, individually, Appellants, v. BALLENTINE PRODUCE INCORPORATED, Charles James Harris, C. J.

Harris, Alice J. Reed, Administratrix of the Estate of

William Claire Reed, Deceased, Tom Joseph Jones, and Miller

Chevrolet Company, Respondents.

No. 51298.

Supreme Court of Missouri, Division No. 2.

Nov. 8, 1965.

Motion for Rehearing or to Transfer to Court En Banc Denied

Dec. 13, 1965.

Elwyn L. Cady, Jr., Kansas City, for appellants.

John R. Caslavka, Kansas City, for respondents, Charles James Harris and C. J. Harris, Shughart, Thomson & Kilroy, Kansas City, of counsel.

E. E. Thompson, Kansas City, for respondent Alice J. Reed, Admx. of Estate of William Claire Reed, Decd., Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.

Morris H. Kross, Rogers, Field & Gentry, Kansas City, for respondent, Ballentine Produce Inc.

EAGER, Presiding Judge.

In this rather unusual action Wallace Glick, a minor, sues for the death of his father, Marvin Glick, and Bessie McGinty, his mother, sues for the deaths of two other minor sons, Philip Glick and Robert Glick. We shall disregard entirely one unrelated claim against Allstate Insurance Company stated in Count II of the amended petition; that is not shown to have been disposed of, but the judgment was rendered without a jury and it was expressly made a final judgment for the purpose of appeal. See Rule 82.06, V.A.M.R. In Count I the minor plaintiff and his mother seek recovery, respectively, for the deaths as at common law, the minor praying a recovery of $162,000 damages for his pecuniary loss, and his mother asking $100,000 for the death of each of her two deceased minor sons. Bessie McGinty, as guardian and curator, was substituted in this count for the next friend who initially sued for Wallace Glick. In Count III Wallace Glick, adopting the facts stated in Count I (to be related), seeks recovery under Sec. 537.080 of our death statute for the death of his father (the widow obviously not having sued within six months) but prays a recovery of $162,000 as compensatory damages and $100,000 as exemplary damages. In Count IV Bessie McGinty, likewise, seeks recovery under that statute for the deaths of each of her deceased minor sons, but prays a recovery of $100,000 plus $100,000 as 'exemplary' damages for the death of each son. In each of the last two counts it is alleged that the negligence of the defendants was of an 'aggravated nature amounting to wanton disregard for life or limb.'

The appeal has been dismissed by stipulation as to two of the original defendants, Joseph Jones and Miller Chevrolet Company. The claims of Bessie McGinty for the death of her sons, common law and statutory, include Ballentine Produce Incorporated, as a defendant; those of Wallace Glick do not. All such claims, however, include defendants Charles James Harris, C. J. Harris, and Alice J. Reed as Administratrix of the estate of William Claire Reed.

The facts alleged in the petition are, as briefly as they may be recited: that Marvin Glick and his three sons were driving south on U. S. 71 By-Pass on October 14, 1962, at a point about 1.3 miles south of the Clay-Jackson County line; that their car was struck by a truck of Ballentine Produce Incorporated, driven by one William Riley Mason, and that sundry specified negligence of that driver (primary and humanitarian) 'contributed' to the cause of the collision; that as a direct result of this collision the father and two of the sons (now deceased) were thrown to the pavement of the highway being 'mortally wounded by impact to each and every tissue and cell of their bodies'; that 'following in time by a few minutes' the defendant Charles James Harris (as agent for C. J. Harris), defendant Tom Joseph Jones (as agent of Miller Chevrolet Company), and (original) defendant William Claire Reed, all traveling north, collided with the persons of the three Glicks 'as they lay on the roadway,' and that the negligence of each such driver, primary and humanitarian, stated in sundry specified particulars, 'contributed to the cause of said collisions' and that as a direct result of the collisions by such subsequent (following) drivers with the three persons 'each and every tissue and cell of the bodies of said persons sustained injury which contributed to their respective deaths * * *.' It was also alleged that defendant Reed was a resident of Clay County; he subsequently died and his Administratrix was substituted. Ballentine is an Arkansas corporation; the Harrises were residents of Kansas. Reed was served personally, Ballentine and the Harrises under the 'Long-Arm' statutes (Secs. 506.200-506.320, RSMo 1959, V.A.M.S. ¹ ).

All defendants attacked the petition by motions: Ballentine by motions to dismiss for lack of jurisdiction and improper venue, and because the amended petition failed to state a claim on which relief could be granted to either plaintiff with respect to any of the claims; the Harrises by motions to quash and to dismiss because of lack of jurisdiction and improper venue; defendant Reed, Administratrix, by motion to dismiss for failure to state a claim against her in any count upon which relief could be granted. Jones and Miller Chevrolet also filed motions which need not be specifically described. The grounds of the motions attacking jurisdiction and venue were that no valid, joint cause of action was stated against Reed, the only resident defendant, that the claim against him (and his Administratrix) was colorable, and that he was fraudulently joined for the purpose of establishing jurisdiction and venue under Sec. 508.010(3). On October 12, 1964, the court sustained the motions to dismiss of all such defendants and entered an order dismissing the first amended petition as to each such defendant; it was also provided in the order that it should be deemed a final judgment as to such parties for the purpose of appeal. The order did not state the ground or grounds upon which the motions were sustained,--i. e., whether on the merits for failure to state a cause of action against each defendant, or for lack of jurisdiction and improper venue. Normally, we would thus assume that the order was on the merits, but since the Harrises only raised the questions of jurisdiction and venue the contrary seems to be indicated here.

We first inquire therefore whether, on this record, the court had jurisdiction of the persons of the defendants and if the venue was proper under Sec. 508.010(3). In order to establish the venue the plaintiff must, or course, state a cause of action against the resident defendant, but nevertheless if it appears to be clear from the records, pleadings, and facts adduced that the resident defendant cannot be held liable on any reasonable ground or theory, and that plaintiff must be presumed to have known this, the joinder cannot be justified and the cause should be dismissed. Diehr v. Carey, 238 Mo.App. 889, 191 S.W.2d 296; Lichterman v. Crockett, Mo., 331 S.W.2d 607. On the other hand, if it appears that plaintiff had reason honestly to believe on the facts that he had a joint cause of action against the resident defendant, along with the others, and if he has stated such a cause of action, the case should not be dismissed as based upon a fraudulent joinder. Such motions are presented (or should be) under Rule 55.31; the movant carries the burden of persuasion and, if proof be necessary, the burden of proof. The cases last cited recognize that a plaintiff may not succeed merely by stating a paper case against the resident defendant and that the court may and should, if need be, look into the facts. If this can be accomplished by affidavits, well and good; if not, the court may hear evidence.

The real gist of the contention concerning jurisdiction and venue boils down to the effect of the allegation of the amended petition, stated or adopted in all three counts, that after the first collision with Ballentine the father and the two sons, thrown to the pavement by that impact, were 'mortally wounded.' This, defendants argue, means that they were dead and that Reed, the resident defendant (and presumably the others), could not have been liable even for contributing to cause any of the deaths; also that plaintiffs are bound by the allegations of their petition. Baysinger v. Hanser, 355 Mo. 1042, 199 S.W.2d 644; M.F.A. Mutual Ins. Co. v. Hill, Mo., 320 S.W.2d 559. Counsel also say that the allegation just mentioned is so inconsistent with the later allegations regarding contribution to the deaths, that it nullifies the later allegations. While, from the standpoint of the plaintiff, the use of the term 'mortally wounded' would seem to have been very inept, we do not construe it as the equivalent of 'dead.' We do construe it to mean that these persons had been injured to such an extent that they would eventually die from the injuries; but, even so, if life still existed there remained a right not to be injured further (with an immediate termination of life) by others. Herke v. St. Louis & S. F. R. Co., 141 Mo.App. 613, 125 S.W. 822. In this we do not infer the actual existence of any negligence on the part of the subsequent drivers; but such negligence is alleged. The law recognizes that where "the concurrent or successive negligence of two persons, combined together, results in an injury to a third person, he may recover damages of either or both and neither can interpose the defense that the prior or concurrent negligence of the other contributed to the injury.' 1 Thompson on Negligence, Sec. 75.' Berryman v. People's Motorbus Co. of St. Louis, 228 Mo.App. 1032, 54 S.W.2d 747, loc. cit. 749. See also: Willey v. Fyrogas Co., 363 Mo. 406, 251 S.W.2d 635; Layton v. Palmer, Mo., 309 S.W.2d 561, 66 A.L.R.2d 1242; Domitz v. Springfield Bottlers, 359 Mo. 412, 221 S.W.2d 831; Brantley v. Couch, Mo.App., 383 S.W.2d...