Gramex Corp. v. Green Supply

Decision Date13 November 2001
Docket NumberSD24018
PartiesGramex Corporation, Respondent, v. Green Supply, Inc., Appellant. SD24018 Missouri Court of Appeals Southern District
CourtMissouri Court of Appeals

Appeal From: Circuit Court of Stoddard County, Hon. Stephen R. Sharp

Counsel for Appellant: Mark E. Harris and Jack W. Green, Jr.

Counsel for Respondent: James E. Spain and Hardy C. Menees

Opinion Summary: None

Shrum, P.J., Montgomery, J., and Barney, C.J., concur.

PER CURIAM

Appellant Green Supply, Inc. ("Wholesaler") appeals the denial of its motions for directed verdict and motion to set aside verdict and judgment (JNOV), after a jury trial arising out of Respondent Gramex Corporation's ("Seller") amended cross-claim for contribution against Wholesaler. See Rule 52.11.1

As explained more fully below, Seller initially brought its cross-claim against Wholesaler for indemnity and then amended its cross-claim to include contribution. At trial, the court instructed the jury only on Seller's claim for contribution against Wholesaler.2 The jury returned a verdict finding Seller's damages at $l.25 million dollars, disregarding any fault on the part of Seller, and assessed 50% fault each to Seller and Wholesaler. The trial court entered its judgment accordingly.

The record shows that Wholesaler is in the business of distributing various products, including hunting supplies and products, to retail concerns. It engaged in business with Seller who operated a concern known as Grandpa's in Ballwin, Missouri. At some point prior to October 3, 1996, Wholesaler sold Seller a product known as a "tree seat," used by hunters to position themselves above ground more comfortably. The tree seat was manufactured by Big Game Products Company, Inc., ("Big Game") using nylon straps provided by S.I.R. Webbing, Inc., ("S.I.R.") and sewn together by Jackster, Inc., ("Jackster").

On October 3, 1996, William Kent Dunn ("Mr. Dunn") purchased one of the tree seats from Seller that had been sold to Seller by Wholesaler. On October 12, 1996, Mr. Dunn fell approximately twenty feet while using the tree seat due to one of the nylon straps in the tree seat breaking apart. As a result, Mr. Dunn sustained catastrophic injuries, including injuries to his spinal cord and was paralyzed from the waist down. Mr. Dunn and his wife ("plaintiffs") filed suit against Wholesaler, Seller, Big Game, S.I.R., and Jackster, alleging various theories of negligence and strict liability. Prior to trial and after lengthy discovery, plaintiffs offered to settle with Wholesaler and Seller for the amount of $1.25 million dollars. Wholesaler refused to settle. Seller agreed to settle with plaintiffs provided the settlement agreement would also satisfy and extinguish plaintiffs' claims against both Seller and Wholesaler. This was accomplished without any further participation by Wholesaler. Shortly thereafter plaintiffs reached settlement agreements with Big Game, S.I.R., and Jackster. Seller then filed its cross-claim against Wholesaler seeking indemnity for the amount paid by Seller in its settlement of plaintiffs' claims together with fees and costs.

In its cross-claim, Seller set out that Wholesaler had sold it a "defective product," and thereby "subjected [Seller] to liability to Plaintiffs" and that it was "entitled to be indemnified for all losses suffered . . . as a result of purchasing the defective product from [Wholesaler]", because it was "lower in the chain of distribution of the hunting seat than [Wholesaler] . . . ." Prior to trial, Seller was permitted to amend its cross-claim by interlineation to include a claim for contribution against Wholesaler. The phrase "or contribution" was placed immediately after the word "indemnity" wherever it appeared in the text of the cross-claim. However, no additional factual allegations were added to the amended cross-claim ("cross-claim") against Wholesaler.

Wholesaler seasonably filed its answer generally denying Seller's inculpating allegations against it. Wholesaler, inter alia, affirmatively pled that Seller had "no legal obligation to make the payments . . . in the amounts alleged," and "acted as a volunteer" in so doing. Furthermore, Wholesaler maintained that plaintiffs' settlements with Big Game, S.I.R., and Jackster in the underlying action "extinguished liability, if any of [Wholesaler] and [Seller] pursuant to common law and pursuant to Section 537.762 RSMo."3 It also affirmatively set out that it had "no liability to Plaintiffs or any other party other than liability based solely on its status as a seller in the stream of commerce." Additionally, Wholesaler set out that Seller was neither entitled to contribution nor indemnity and that Seller could receive full recovery from parties "upstream" from Wholesaler. Lastly, Wholesaler set out that Seller was "independently and primarily negligent in various respects, including . . . the manner in which it displayed the tree seat and its continued sale of the tree seat in boxes that lacked a warning . . . ." Accordingly, Wholesaler argued that since a party is not entitled to indemnity against the consequence of its own negligence, Seller was not entitled to indemnity from Wholesaler.

At trial, Wholesaler seasonably filed its motions for directed verdict after the close of Seller's case and the close of all the evidence. These motions were denied. The trial court also denied Wholesaler's motion for JNOV. Wholesaler raises three points in its appeal. Since Point One is dispositive it alone will be reviewed.I.

In Point One, Wholesaler asseverates that the trial court erred by not granting its motions for directed verdict and motion for JNOV. It asserts that Seller failed to allege any facts in its amended cross-claim relating to the relative fault or negligence of Wholesaler and failed to allege any facts concerning Seller's own relative fault or negligence as a joint tortfeasor. Wholesaler maintains that these omissions doomed Seller's claim for contribution. Wholesaler's point has merit.

Wholesaler seeks review of the trial court's ruling denying its motions for directed verdict as well as its motion to set aside verdict and judgment. We interpret this to include Wholesaler's motion for directed verdict at the close of Seller's evidence as well as its motion for directed verdict at the close of all evidence. "A defendant who moves for a directed verdict at the close of the plaintiff's evidence, receives an adverse ruling, and thereafter presents evidence, waives any error in the denial of the motion." St. Francis Med. Ctr. v. Penrod, 937 S.W.2d 343, 346 (Mo.App. 1996). Accordingly, we will not review Wholesaler's point as it may relate to denial of its motion for directed verdict at the close of Seller's evidence. Id. However, "when a defendant does not stand on his motion for directed verdict at the close of the plaintiff's evidence, the reviewing court examines all of the evidence in determining the sufficiency of the plaintiff's case." Egelhoff v. Holt, 875 S.W.2d 543, 551 (Mo. banc 1994).

We now turn to the standard of review regarding Wholesaler's appeal arising from the trial court's denial of its motion for directed verdict at the close of all evidence, along with its motion for JNOV.

"The standard of review of denial of a JNOV is essentially the same as for review of denial of a motion for directed verdict." Giddens v. Kansas City Southern Ry. Co., 29 S.W.3d 813, 818 (Mo. banc 2000). "On appeal from a judgment notwithstanding the verdict, appellate courts review the evidence and reasonable inferences favorable to the jury verdict and disregard contrary evidence that does not support the verdict." Lewis v. Fag Bearings Corp., 5 S.W.3d 579, 581 (Mo.App. 1999); PJ's Concrete Const., Inc. v. Gust, 983 S.W.2d 640, 642 (Mo.App. 1999). "A defendant's motion for judgment notwithstanding the verdict should be granted only where the plaintiff failed to make a submissible case." Lewis, 5 S.W.3d at 581. "'To make a submissible case, substantial evidence is required for every fact essential to liability.'" PJ's Concrete, 983 S.W.2d at 642 (quoting Steward v. Goetz, 945 S.W.2d 520, 528 (Mo.App. 1997)). "A motion for judgment notwithstanding the verdict should be granted if an essential element in the cause of action is not supported by substantial evidence." Stewart v. Kirkland, 929 S.W.2d 321, 322 (Mo.App. 1996).

II."It is well established in case law that the cause of action asserted by a third party plaintiff, whether based on contribution, indemnification on some other theory of recovery, is separate and distinct from the tort claim asserted by the plaintiff against the defendant." State ex rel. General Elect Co. v. Gaertner, 666 S.W.2d 764, 766 (Mo. banc 1984).

Although contribution and indemnity or partial indemnity have been used interchangeably, the terms contribution and indemnity represent different concepts. 'There is an important distinction between contribution, which distributes the loss among the tortfeasors by requiring each to pay his proportionate share, and indemnity, which shifts the entire loss from one tortfeasor who has been compelled to pay it to the shoulders of another who should bear it instead.'

Safeway Stores, Inc., v. City of Raytown, 633 S.W.2d 727, 729 n.3 (Mo. banc 1982) (quoting W. Prosser, Law of Torts, section 51 at 310 (4th ed. 1971)); see Stephenson v. McClure, 606 S.W.2d 208, 210-11 (Mo.App. 1980).

"Contribution among joint tortfeasors was first adopted in Missouri in Missouri Pacific R.R. Co. v. Whitehead & Kales Co., 566 S.W.2d 466 (Mo. banc 1978)."4 Ferrellgas, L.P. v. Williamson, 24 S.W.3d 171, 177 (Mo.App. 2000); see also section 537.060.5 It is joint liability, not a joint judgment, that is a prerequisite to contribution. McNeill Trucking Co., Inc. v. MHTC, 35 S.W.3d 846, 847 (Mo. banc 2001); Safeway, 633 S.W.2d at 730; Whitehead, 566 S.W.2d at 469; Stephenson, 606 S.W.2d at 213.

"The term contribution is preferable when referring to apportionment of loss or damages...

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