Hutchinson v. Steinke, Nos. 30642

CourtCourt of Appeal of Missouri (US)
Writing for the CourtPER CURIAM
Citation353 S.W.2d 137
PartiesThomas W. HUTCHINSON and Leslie Barnhart, (Plaintiffs) Respondents, v. Alvin Martin STEINKE, (Defendant) Appellant.
Docket NumberNos. 30642,30643
Decision Date16 January 1962

Page 137

353 S.W.2d 137
Thomas W. HUTCHINSON and Leslie Barnhart, (Plaintiffs) Respondents,
v.
Alvin Martin STEINKE, (Defendant) Appellant.
Nos. 30642, 30643.
St. Louis Court of Appeals, Missouri.
Jan. 16, 1962.

Page 138

Heneghan, Roberts & Cole, John J. Cole, and Woodward Lee Carter, Jr., St. Louis, for appellant.

Barnhart & Sommers, Don B. Sommers, David G. Dempsey, McLeod & Bransford, and Arthur E. McLeod, St. Louis, for respondents.

DOERNER, Commissioner.

These appeals involve two actions for damages for personal injuries, which by agreement between the plaintiffs, Hutchinson and Barnhart, and the defendant, Steinke, were consolidated for trial. Trial before the court and a jury resulted in verdicts and judgments in favor of the plaintiffs, for $6,300 for Hutchinson and $4,200 for Barnhart, and defendant has appealed.

The automobile collisions which gave rise to this litigation occurred in St. Charles County on U. S. Highway 40, approximately three-tenths of a mile west of its junction with Missouri Highway K, on September 13, 1958, about 9:00 P.M. In that area U. S. Highway 40 is a two-lane highway, and because of the rolling nature of the terrain there are a number of crests and dips in the road. From the evidence it appears that in disregard of yellow lines marking a no-passing zone, one Amos Herron, driving a 1946 Plymouth in a westwardly direction, attempted to pass a tractor-trailer being driven in the same direction by Henry Robotnid, as the two vehicles were ascending a hill. Leon Terrill, operating a 1956 Chevrolet eastwardly, came over the crest of the hill, collided with Herron's car, and after rolling over more than once came to rest in an upright position, blocking at least two-thirds of the eastbound lane. Shortly thereafter (the intervening period of time being a matter of sharp dispute), defendant Steinke, driving a GMC stake truck in an eastwardly direction, accompanied by plaintiffs as passengers, came over the top of the hill and collided with Terrill's car.

Defendant's initial assignment of error involves a claim of fraudulent joinder and improper venue. Plaintiffs Hutchinson and Barnhart, in their separate actions filed in the Circuit Court of the City of St. Louis, named as defendants Herron, Steinke, Terrill and Robotnid. Hutchinson and Herron were residents of the City of St. Louis; Barnhart and Steinke were residents of St. Louis County; and Terrill and Robotnid were nonresidents of Missouri. Since defendant Herron was a resident of the City of St. Louis, venue in that jurisdiction was presumably proper under Sec. 508.010(3) RSMo 1959, V.A.M.S., which provides: 'When there are several defendants, some residents and others nonresidents of the state, suit may be brought in any county in this state in which any defendant resides.'

It appears from the record and the briefs that on the morning of the day the trial commenced, while both cases were still pending in Division No. 1 awaiting assignment to a trial division, each plaintiff dismissed his action as to defendants Herron, Terrill and Robotnid, without prejudice, leaving Steinke, as the sole defendant in

Page 139

both cases. Thereafter, a memorandum was filed in Division No. 1, signed by counsel for plaintiffs and defendant Steinke, consolidating the two suits for trial by agreement. The consolidated action was thereupon assigned to Division No. 7 for trial. When the action reached the trial division counsel for defendant Steinke, in chambers, then asked the court to continue the cases so that he might subpoena Herron and Terrill, which request was denied. At this point the noon recess was declared. Upon the resumption of the proceedings, again in chambers, counsel for defendant Steinke orally moved to quash the return of service as to Steinke, and asked leave to follow it with a written motion. The motion to quash was likewise overruled. Subsequently, a written motion was filed, plaintiffs were granted leave to change their dismissals of Herron, Terrill and Robotnid to dismissals with prejudice, and defendant Steinke refiled his written motion.

It is defendant's contention on appeal that Herron was originally joined as a defendant for the sole purpose and with the fraudulent intent of establishing venue in the City of St. Louis, and that from the very inception of the actions plaintiffs never at any time intended to press their cases against him. No evidence was introduced in support of defendant's motion, and hence there is no proof of fraudulent intent unless it can be found from the facts in the record and the inferences to be drawn therefrom. Defendant states that such proof is supplied by the fact that '* * * Herron was known by all parties to be an uninsured motorist * * *,' and because plaintiffs could have obtained a judgment against Herron at any time since Herron never appeared and was in default. The weakness in defendant's argument is that there is no probative evidence in the record that Herron was an uninsured motorist. Nor is there any proof that at the time plaintiffs filed their actions plaintiffs were then aware of that fact, if it was a fact. If Herron was indeed financially irresponsible, as defendant states, it is entirely conceivable that plaintiffs did not acquire knowledge thereof until some time after they had instituted their suits, which may have led to their dismissal as to him. Defendant should have supported his motion by proof, and in the absence of such proof we cannot speculate as to what such evidence might be. For the rule is that where the petition states a cause of action upon which relief can be granted against the resident defendant, as defendant concedes was the case at bar, the claim of fraudulent joinder by a nonresident defendant must not only be raised by a motion, but must be supported by adequate proof. State ex rel. Thompson v. Terte, 357 Mo. 229, 207 S.W.2d 487.

Furthermore, Section 508.010 RSMo 1959, V.A.M.S., fixing venue in the county of the defendant's domicile, confers a mere personal privilege which may be waived by the person entitled to assert it. Robinson v. Field, 342 Mo. 778, 117 S.W.2d 308; Jones v. Church, Mo.App., 252 S.W.2d 647. Such waiver may take the form of an act that would constitute a general appearance, as by pleading to the merits, Robinson v. Field, supra; Buerck v. Mid-Nation Iron Products Co., 295 Mo. 263, 245 S.W. 45; Worley v. Worley, Mo.App., 176 S.W.2d 74; by filing an application for a change of venue, Cook v. Globe Printing Co. of St. Louis, 227 Mo. 471, 127 S.W. 332; Lieffring v. Birth, Mo.App., 154 S.W.2d 597; by agreeing to a resetting of the cause, and to a continuance, Baisley v. Baisley, 113 Mo. 544, 21 S.W. 29, 35 Am.St.Rep. 726; Columbia Brewery Co. v. Forgey, 140 Mo.App. 605, 120 S.W. 625; by obtaining additional time to answer, Harrison v. Murphy, 106 Mo.App. 465, 80 S.W. 724; and by requesting and obtaining a continuance, Gray v. Grand River Coal & Coke Co., 175 Mo.App. 421, 162 S.W. 277. The record in the instant case shows that after plaintiffs had dismissed as to Herron the defendant executed and filed an agreement that the two actions should be consolidated for trial, accepted an assignment to the trial division, and requested a continuance

Page 140

of the trial of the consolidated action before raising any question as to the jurisdiction of the court over his person. Assuming that defendant was not in a position to effectively raise the issue of improper venue until plaintiff dismissed as to Herron, it is clear from the foregoing authorities that by such actions the defendant thereafter waived any right he might have had to object to the venue.

During the trial Terrill was called to the stand by plaintiff and testified on his behalf. On cross-examination defendant sought to impeach Terrill by using a written statement which Terrill had given to one W. A. Bowman, Jr., manager of the Valley Adjustment Company of Portsmouth, Ohio, on September 18, 1958, five days after the collisions occurred. Terrill, by his personal attorney, William H. Bruce, Jr., objected to defendant's use of the statement on the grounds that it was a privileged communication. Thereupon, in chambers, the court heard evidence on the objection raised. At the conclusion of the hearing the court ruled that the statement was a privileged communication, and that defendant could not use it to cross-examine Terrill. Defendant assigns that ruling as error. The material facts regarding the occurrence as given by Terrill in his written statement were in sharp conflict with those to which he testified at the trial. For example, in his statement Terrill stated that as soon as his car came to rest back on the road, after colliding with Herron's car, he saw the headlights of Steinke's truck and that they '* * * looked like about 2 feet away, * * *' while on the witness stand he testified that about a minute elapsed between the time his car came to rest and the impact of the Steinke truck, and that he saw the Steinke truck come over the crest and down the hill, a distance he estimated at 400 feet. Hence if the trial court's ruling was erroneous there can be no doubt that it was prejudicial, for the effect of it was to prevent defendant from cross examining Terrill about such discrepancies.

During the hearing in chambers it developed that the witness Terrill was insured with the Inter-Insurance Exchange of the Automobile Club of Southern California for both liability and collision insurance and that the defendant Steinke was insured with the Automobile Club of Missouri for liability and property damage. It was further developed that Bowman interviewed Terrill and obtained his written statement at the telephoned and written request of Harry F. Collum, Claims Adjuster of the Inter-Insurance Exchange of the Automobile Club of Missouri, made on September 17, 1958. Reduced to its essentials, the basis of Terrill's objection to defendant's use of his written...

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8 practice notes
  • Rakestraw v. Norris, No. 9170
    • United States
    • Court of Appeal of Missouri (US)
    • March 10, 1972
    ...S.W.2d 607, 609--610(1); Frank v. Sinclair Refining Co., 363 Mo. 1054, 1061, 256 S.W.2d 793, 796--797; Hutchinson v. Steinke, Mo.App., 353 S.W.2d 137, 139(1); Diehr v. Carey, 238 Mo.App. 889, 899, 191 S.W.2d 296, 5 See, e.g., Christensen v. Hennepin Transp. Co., 215 Minn. 394, 10 N.W.2d 406......
  • State ex rel. Marlo v. Hess, No. 48261
    • United States
    • Court of Appeal of Missouri (US)
    • April 17, 1984
    ...defendant's domicile, confers a mere personal privilege which may be waived by the person entitled to assert it." Hutchinson v. Steinke, 353 S.W.2d 137, 139 The Circuit Court of Jefferson County unquestionably possesses the power and authority to act upon a dispute between Missouri citizens......
  • State ex rel. White v. Marsh, No. 62754
    • United States
    • United States State Supreme Court of Missouri
    • February 23, 1983
    ...an application for change of venue, or by agreeing to a resetting or a continuance, or by entering an appearance. Hutchinson v. Steinke, 353 S.W.2d 137, 139 Recent cases reiterate the doctrine. In State ex rel. Sperandio v. Clymer, 581 S.W.2d 377, 384 (Mo. banc 1979), this Court said: The g......
  • Wells v. Goforth, No. 54226
    • United States
    • United States State Supreme Court of Missouri
    • June 9, 1969
    ...456; Black v. Epstein, 221 Mo. 286, 120 S.W. 754; Frank v. Wabash R. Co., Mo.Sup., 295 S.W.2d 16; and Hutchinson v. Steinke, Mo.App., 353 S.W.2d 137. This rule has drawn severe criticism. In Wigmore on Evidence, 3rd Ed., Vol. III, § 916, it is said: 'If there is any situation in which any s......
  • Request a trial to view additional results
8 cases
  • Rakestraw v. Norris, No. 9170
    • United States
    • Court of Appeal of Missouri (US)
    • March 10, 1972
    ...S.W.2d 607, 609--610(1); Frank v. Sinclair Refining Co., 363 Mo. 1054, 1061, 256 S.W.2d 793, 796--797; Hutchinson v. Steinke, Mo.App., 353 S.W.2d 137, 139(1); Diehr v. Carey, 238 Mo.App. 889, 899, 191 S.W.2d 296, 5 See, e.g., Christensen v. Hennepin Transp. Co., 215 Minn. 394, 10 N.W.2d 406......
  • State ex rel. Marlo v. Hess, No. 48261
    • United States
    • Court of Appeal of Missouri (US)
    • April 17, 1984
    ...domicile, confers a mere personal privilege which may be waived by the person entitled to assert it." Hutchinson v. Steinke, 353 S.W.2d 137, 139 The Circuit Court of Jefferson County unquestionably possesses the power and authority to act upon a dispute between Missouri citizens arisin......
  • State ex rel. White v. Marsh, No. 62754
    • United States
    • United States State Supreme Court of Missouri
    • February 23, 1983
    ...an application for change of venue, or by agreeing to a resetting or a continuance, or by entering an appearance. Hutchinson v. Steinke, 353 S.W.2d 137, 139 Recent cases reiterate the doctrine. In State ex rel. Sperandio v. Clymer, 581 S.W.2d 377, 384 (Mo. banc 1979), this Court said: The g......
  • Wells v. Goforth, No. 54226
    • United States
    • United States State Supreme Court of Missouri
    • June 9, 1969
    ...456; Black v. Epstein, 221 Mo. 286, 120 S.W. 754; Frank v. Wabash R. Co., Mo.Sup., 295 S.W.2d 16; and Hutchinson v. Steinke, Mo.App., 353 S.W.2d 137. This rule has drawn severe criticism. In Wigmore on Evidence, 3rd Ed., Vol. III, § 916, it is said: 'If there is any situation in which any s......
  • Request a trial to view additional results

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