Goff v. Schlegel, 53050
| Decision Date | 23 February 1988 |
| Docket Number | No. 53050,53050 |
| Citation | 748 S.W.2d 813 |
| Parties | Ronald GOFF and Joyce GOFF, Plaintiffs-Appellants, v. Dennis T. SCHLEGEL, Bonnie Schlegel, and Navistar International Corp., Defendants-Respondents. |
| Court | Missouri Court of Appeals |
Richard E. Schwartz, St. Louis, for plaintiffs-appellants.
John Joseph Hummel, St. Louis, for defendants-respondents.
This appeal follows a dismissal with prejudice of plaintiffs' claim for personal injuries and loss of consortium against defendant Navistar International Transportation Company (formerly International Harvester) as manufacturer of a farm tractor and against Dennis and Bonnie Schlegel, individually and as trustees of Fulton Implement Company, a forfeited Missouri corporation (Fulton), as vendors of replacement parts and accessories for the tractor. The issues on appeal relate to contentions the trial court in St. Charles County erred in dismissing the claims. The petition alleges a design defect product liability claim against Navistar and negligence against the Schlegels. The court dismissed plaintiffs' petition against Navistar on two grounds: (1) plaintiffs' claim is barred by the five year statute of limitations, Section 516.120 RSMo 1986; and, (2) lack of venue in St. Charles County because joinder of the Schlegels was fraudulent. The court dismissed the petition against the Schlegels solely on the ground that venue was improper because of fraudulent joinder.
According to the petition, Ronald Goff was injured on August 9, 1980 while he was operating a farm tractor manufactured by International Harvester, now Navistar. The tractor rolled over Goff, crushing his leg and pinning him under the tractor. While pinned under the tractor, Goff suffered additional injuries when hot engine fluids leaked from the glass oil bath and radiator cap which caused severe leg burns. Shortly before the casualty, Ronald Goff purchased replacement parts and accessories consisting of "metal rims for the two front tires, the oil bath, and the oil breather cap" from Fulton Implement Company Incorporated. Fulton forfeited its Corporate Charter on January 1, 1982.
The Schlegels were members of the last board of directors and were officers of Fulton. They are sued individually and as trustees of the assets of Fulton. The petition alleges that the replacement parts were not properly sold for use on the tractor, were not authorized parts by defendant Navistar for use on the tractor and were not properly designed or manufactured "by reason of which the [product liability defects alleged against defendant Navistar] were created and/or enhanced and/or their propensity to injure was triggered." The petition further alleges that Fulton and defendants Schlegel knew of the intended use on the Navistar tractor, but failed to warn plaintiff of information which they knew or readily had access to, about the dangerous conditions created by use of that tractor with the parts and accessories sold to plaintiff; that Fulton and these individual defendants were thereby negligent and personally liable both directly for their aforesaid negligence and as trustees of the assets of Fulton.
The product liability claim against defendant Navistar is premised upon allegations that at the time of the casualty the tractor was in substantially the same condition as when manufactured and was in a defective, unreasonably dangerous condition because: (a) defective design relating to lateral instability, longitudinal instability, improper placement of the motor, undue height of the center of gravity, failure to incorporate antislip devices on the rear axle, and failed to incorporate roll over protective equipment ("ROPS"); (b) failure to warn of the above characteristics or failures; (c) failure to retrofit said tractor with ROPS and warn of the necessity or to advise of the availability of same; (d) failure to recall said tractor; (e) failure to conduct a proper dealer and public information campaign directed to plaintiff and other users of similar machinery; (f) failure to incorporate, design and manufacture, or to retrofit the tractor with devices to prevent the drainage of hot engine fluids onto the operator in the event of an upset, although same was foreseeable, thus enhancing plaintiff's injuries; (g) failure to perform roll over tests; and, (h) failure to test during and after production to determine feasibility and proper specifications for a suitable ROPS.
From the documents in the legal file we learn the following facts. The casualty occurred in Callaway County, Missouri. At the time of the casualty the Schlegels resided in Callaway County. At the time the subject lawsuit was filed in St. Charles County the Schlegels resided in St. Charles County. Navistar is a foreign corporation with a registered agent in the City of St. Louis, but with no office for the conduct of business in the City of St. Louis or in St. Charles County.
Plaintiff, Ronald E. Goff, alleges personal injuries resulting from a casualty which occurred on August 9, 1980. Plaintiff filed suit in St. Charles County on September 11, 1986, six years and one month after the casualty. Navistar moved to dismiss the cause of action on the authority of Section 516.120(4) RSMo 1978 which prescribes a five year limitation. Plaintiffs rely on Section 516.230 RSMo 1978, the "savings statute". This section provides that a plaintiff may commence a new action after a non-suit [or under circumstances not here relevant] within one year after such non-suit, "[i]f any action shall have been commenced within the times respectively prescribed in Sections 516.010 to 516.370...."
The tortured factual setting for plaintiffs' position follows. On December 31, 1980 plaintiffs filed the original complaint against International Harvester Company only in the Federal District Court for the Eastern District of Missouri. This suit was dismissed without prejudice by plaintiffs in early 1984. On February 15, 1984 plaintiffs filed suit on the same cause of action in the same Federal Court against International Harvester Company and a second corporation. On November 16, 1984 plaintiffs filed a third suit on the same cause of action in the Circuit Court of the City of St. Louis against International Harvester Company, Dennis T. Schlegel, Bonnie Schlegel and Russell Forsee, the registered agents of Fulton Implement Company, a forfeited Missouri corporation. This suit named the Schlegels in their capacity as trustees of the assets of Fulton. On November 29, 1984 the second Federal Court suit was dismissed without prejudice. On September 24, 1985 the Circuit Court of the City of St. Louis dismissed plaintiffs' petition without prejudice in response to a motion of International Harvester which alleged fraudulent joinder, improper venue and forum non conveniens and a motion to dismiss filed by the Schlegels alleging fraudulent joinder and Section 351.565 RSMo 1978. This section relates to actions against a dissolved corporation, its directors or shareholders and limits such suits to those commenced within two years after designated events related to dissolution under Chapter 351. The Circuit Court in the City of St. Louis dismissed without prejudice and without comment as to the ground or grounds relied on to justify dismissal.
We find the St. Charles Circuit Court erred in dismissing plaintiffs' petition filed on September 11, 1986 against defendant Navistar on the basis of Section 516.120 RSMo 1978. Plaintiffs filed the present law suit within one year of dismissal of their action filed in the Circuit Court of the City of St. Louis within the five year statute of limitations and dismissed by the court on September 24, 1985. The City of St. Louis suit was the first suit dismissed after the expiration of the five year period and the savings statute granted plaintiffs until September 23, 1986 to refile the same cause of action. Britton v. Hamilton, 740 S.W.2d 704, 705 (Mo.App.1987). The suit in the Circuit Court of the City of St. Louis was filed within the period of the five year statute of limitations and the dismissal occurred thereafter. On these facts plaintiffs were entitled to the benefit of the savings statute.
Navistar relies on Cady v. Harlan, 442 S.W.2d 517 (Mo. banc 1969). The facts in Britton and the present case are distinguishable from the facts in the Cady case. In Cady, plaintiffs attempted to rely upon the savings statute following a suit which was not instituted within the period of the original statute of limitations. The Supreme Court declined to adopt such a broad interpretation of the savings statute. Navistar also argues that the savings statute began to run on November 29, 1984, the date plaintiffs dismissed the second Federal Court lawsuit. The savings statute will aid plaintiff only once. If the earlier date triggered that statute, then the St. Charles filing was out of time. This ignores plaintiffs' right to file in the Circuit Court in the City of St. Louis within the period of the original statute of limitations without relying on the savings statute.
Navistar also argues that the dismissal by the court in the Circuit Court of the City of St. Louis was granted because of fraudulent joinder of the Schlegels and that venue was improper under the doctrine of forum non conveniens. This, Navistar argues, prevents application of the savings statute on the premise that because venue was improper in the City of St. Louis that court never obtained jurisdiction over Navistar and therefore failed to toll the five year statute of limitations. This argument is defective for several reasons. First, there is no authority for the proposition that a dismissal on grounds of forum non conveniens is a determination of improper venue. The application of that...
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