Hipp v. Kansas City Public Service Co., 21491
| Decision Date | 05 March 1951 |
| Docket Number | No. 21491,21491 |
| Citation | 237 S.W.2d 928,241 Mo.App. 169 |
| Parties | HIPP v. KANSAS CITY PUBLIC SERVICE CO. et al. |
| Court | Missouri Court of Appeals |
Charles L. Carr, Henry Depping, Hale Houts, and Hogsett, Trippe, Depping, Houts & James, all of Kansas City, for appellant.
Charles Shangler, I. L. Kraft, Kansas City, for respondent.
SPERRY, Commissioner.
The question presented is: Can a third party defendant maintain a cross claim as against a third party plaintiff after the original plaintiff has dismissed her action without having amended so as to state a cause of action against third party defendant?
Alice E. Hipp, plaintiff, sued defendant, Kansas City Public Service Company, a corporation, appellant herein, for damages for personal injuries received while she was a passenger on defendant's streetcar. Before answering, defendant moved that one Erastus D. Williams, respondent herein, be summoned as third party defendant, and that defendant appellant be given leave to file its petition against him. The motion was sustained.
Appellant filed its third party petition, alleging that respondent was, wholly or partially, liable for damages sought by plaintiff, and 'prays judgment against third party defendant for such sum and costs as may be found for plaintiff herein * * *.'
Summons was issued and served, wherein respondent was commanded to appear and plead to the petition and to the petition of third party plaintiff, appellant herein, under penalty of judgment for defendant for the relief demanded. Service was had July 9, 1947.
On July 25, 1947, respondent pleaded to appellant's petition, and cross claimed against appellant, seeking damages for personal injuries received when appellant's streetcar and respondent's automobile collided causing the injuries for which plaintiff sued.
On November 3, 1947, appellant answered respondent's cross claim by general denial. On October 19, 1948, appellant filed a motion wherein it was alleged that plaintiff had failed to amend her petition so as to state a cause of action against respondent; that the cause had been settled and dismissed as between plaintiff and appellant; and it prayed dismissal of the third party petition and the cross claim. The motion was overruled, and the cause was tried.
Judgment was for respondent in the sum of $1320. This appeal followed.
Appellant contends that, since plaintiff failed to state a cause of action against third party defendant, respondent herein, the court had no jurisdiction over the subject matter of the cross claim. It cites and relies on State ex rel. McClure v. Dinwiddie, 358 Mo. 15, 213 S.W.2d 127, 130. The gist of that decision is that plaintiff may not be compelled to accept third party defendant as an adversary; that the matter is optional as to plaintiff. In Liberty Import Corp. v. Neuman, Mo.App., 234 S.W.2d 227, we applied the above ruling and held that circuit court is without jurisdiction to render a judgment in favor of plaintiff, as against a third party defendant, where plaintiff had never pleaded a cause entitling him to relief. Neither of those cases directly rule the point here presented, nor are we cited to any other case that is controlling.
Authority for institution of a third party action is found in Section 847.20, MoR.S.A., R.S. 1949, Sec. 507,080, a section of our civil code. In State ex rel. McClure v. Dinwiddie, supra, 213 S.W.2d at page 129, the court stated that the general purpose of such statute is: '* * * 'to avoid two actions which should be tried together to save the time and cost of a reduplication of evidence, to obtain consistent results from identical or similar evidence.' It has further been said that its purpose is, 'to accomplish ultimate justice for all concerned with economy of litigation and without prejudice to the rights of another''.
The court pointed out that Section 847.2, Mo.R.S.A., R.S. 1949, Sec. 506.010, of the code, requires the code be construed so as 'to secure the just, speedy and inexpensive determination of every action'. It was held, 213 S.W.2d at page 130, that its provisions should be liberally construed, to the end that the technical and useless be abandoned and the disposition of litigation on its merits be facilitated. Such was said to have been the purpose of the bar and legislature in framing and enacting this legislation.
This section of our code was taken, in toto, from Federal Rules of Civil Procedure, Rule 14, 28 U.S.C.A., which provided, in part, as follows: Italics ours.
Since our statute was enacted the rule has been amended by striking out that portion thereof which we have...
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...vol. 1, sec. 426, p. 851, notes 48-52; State ex rel. McClure v. Dinwiddie, 358 Mo. 15, 213 S.W.2d 127; Hipp v. Kansas City Public Service Co., Mo.App., 237 S.W.2d 928.11 Willis v. American National Life Ins. Co., Mo.App., 287 S.W.2d 98(16); Munday v. Thielecke, Mo., 290 S.W.2d 88(6); State ......
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