Missouri Dist. Telegraph Co. v. Southwestern Bell Telephone Co.

• Decision Date: 18 March 1936
• Docket Number: 34562,34563
• Citation: 93 S.W.2d 19,338 Mo. 692
• Parties: Missouri District Telegraph Company, a Corporation, v. Southwestern Bell Telephone Company, a Corporation, Union Electric Light & Power Company, a Corporation, Appellants
• Court: Missouri Supreme Court

93 S.W.2d 19

338 Mo. 692

Missouri District Telegraph Company, a Corporation, v. Southwestern Bell Telephone Company, a Corporation, Union Electric Light & Power Company, a Corporation, Appellants

Nos. 34562, 34563

Supreme Court of Missouri

March 18, 1936

Rehearing Overruled March 18, 1936.

Appeal from Circuit Court of City of St. Louis; Hon. Charles B Williams, Judge.

Affirmed.

David H. Robertson for Union Electric Light & Power Company.

(1) This is an action at law and not a suit in equity, so that the court erred in refusing to sustain the light company's demurrer to the petition and erred in trying the cause as a suit in equity; with the result that the judgment cannot stand. (a) Under the law of Missouri there was no common-law right of action which permitted one of several joint tortfeasors to recover contribution from the others. Such right of action is created solely by the statute (Sec. 3268, R. S. 1929), so that an action for contribution under the statute is purely legal and not equitable in character. Hutchinson v. Safety Gate Co., 247 Mo 71; Flenner v. Cook, 221 Mo.App. 160; Doster v Ry. Co., 158 S.W. 440; Moudy v. Dressed Beef & Provision Co., 149 Mo.App. 413. (b) Though it is true that equity had original jurisdiction in contribution growing out of the payment of joint contractual obligations, and therefore true that the jurisdiction of equity is concurrent with the jurisdiction at law in the case of the joint contractual obligations (13 C. J. 832; Dysart v. Crow, 170 Mo. 275); nevertheless since, as stated in Point 1(a) above, there was no right of action, prior to the enactment of Section 3268, for contribution among joint tort defendants, equity has no jurisdiction whatsoever. The action of contribution among joint tort defendants is purely statutory and therefore at law. (c) The only other ground of pretended equity jurisdiction is that of preventing a multiplicity of suits. But that ground does not exist in this case, where the issues were several and not joint, and there were no questions of equitable cognizance involved. The mere fact that there is a community of interest in questions of law and fact, does not warrant equity jurisdiction. Ballew Lbr. & Hdw. Co. v. Ry. Co., 288 Mo. 473, 232 S.W. 1015; Tribbette v. Ry. Co., 70 Miss. 182, 12 So. 32; Wagner v. Eisenmenger, 65 S.W.2d 108. (d) Therefore, there was a misjoinder of causes of action and parties defendant; the action being at law and the liability several, such misjoinder exists. Sec. 701, R. S. 1929; Bracht v. Johnson, 187 Mo.App. 220, 173 S.W. 692; Salisbury v. Salisbury, 274 Mo. 180, 202 S.W. 529; Watts v. Meyer, 189 S.W. 29; Cases cited, Point 1(a); 5 Stand. Encyc. of Practice, 502; 13 C. J. 834; Thompson v. Hibbs, 45 Ore. 141, 76 P. 778; Fischer v. Gaither, 32 Ore. 161; Hall v. Harris, 6 Ga.App. 822, 65 S.E. 1086. (e) Also for the above reasons, the court erred in refusing separate trials. (2) Since this was an action at law the trial court should have given all proper declarations of law requested by appellant. Sec. 952, R. S. 1929; Green v. Whaley, 271 Mo. 636, 197 S.W. 355; Sutter v. Raeder, 149 Mo. 307, 50 S.W. 813; Rausch v. Michel, 192 Mo. 302, 91 S.W. 99; Fruin v. O'Malley, 241 Mo. 250, 145 S.W. 437. (a) The court undoubtedly erred in refusing to make most of the findings of fact requested by light company. (b) Respecting the declarations of law, there could be no question raised in any mind concerning Declarations F, G, G-a, H, I, J, K, L, M. The legal propriety of the requests for finding of fact and declarations of law will be considered hereafter in Point 7. However, hereafter and until Point 8 the case will be briefed as if properly in equity. (3) The judgment and opinion of the Missouri Supreme Court in the indemnity action of telegraph company against light company (79 S.W.2d 257) is res judicata that the Rose judgment was not an adjudication between these parties and they are not estopped thereby as to any matter, fact or issue presented by light company's answer. (a) The issue, whether the Rose judgment is res judicata between telegraph company and light company, was the necessary ground of decision of the Supreme Court. This is shown by the abstract of record and by telegraph company's briefs and by the Supreme Court's opinion in the indemnity case. 15 R. C. L., pp. 1049, 1050; 34 C. J., pp. 1072, 1073, 1074, 1075, 1076; Oklahoma v. Texas, 256 U.S. 88; Gibson v. Chouteau, 76 Mo. 51; Freeman on Judgments (5 Ed.), sec. 763; Case v. Sipes, 280 Mo. 120; Baumhoff v. Railroad Co., 205 Mo. 254; City v. Union Ry. Co., 116 Mo. 636. (b) The judgment of the Supreme Court is fully as conclusive as the judgment of any other court. Freeman on Judgments (5 Ed.), sec. 639; 34 C. J., p. 760; Chouteau v. Gibson, 76 Mo. 51. (c) Though contribution is a different cause of action than indemnity and though there was an involuntary nonsuit in the indemnity action, the ground of decision that the involuntary nonsuit be affirmed was that the Rose record and judgment was not any evidence whatsoever in any action between telegraph company and light company. Mo. Dist. Telegraph Co. v. Bell Tel. Co., 79 S.W.2d 257. (d) This point having been brought directly into question between telegraph company and light company as adverse parties in such indemnity action, it was adjudicated and is between them forever res judicata. 34 C. J., pp. 745-6; Black on Judgments, sec. 504; So. Pac. Ry. Co. v. United States, 168 U.S. 1, 42 L.Ed. 355; Black on Judgments, sec. 506; Cromwell v. Sac. 94 U.S. 351, 24 L.Ed. 195; Case v. Sipes, 280 Mo. 120; Baumhoff v. Railroad Co., 205 Mo. 269; Loud v. St. L. Union Trust Co., 298 Mo. 185; State ex rel. v. Mining Co., 262 Mo. 502; La Rue v. Kempf, 171 S.W. 592; Garland v. Smith, 164 Mo. 23; Oklahoma v. Texas, 256 U.S. 86. (e) The indemnity opinion, on the question of conclusiveness of the Rose judgment, was upon the merits of that point of law, despite the fact that there was no judgment on the merits of the cause of action, and therefore the doctrine of res judicata applies. Barnett v. Smart, 158 Mo. 167; 15 R. C. L., p. 955, sec. 431; 34 C. J., p. 893; 2 Freeman on Judgments (5 Ed.), sec. 724, pp. 1532-1534. (4) The holding of the trial court, (1) that the indemnity opinion was not conclusive in this action and (2) that the Rose judgment was conclusive, denied due process of law contrary to Section 30, Article II, Missouri Constitution, and contrary to Section 1, Fourteenth Amendment, United States Constitution. (a) Judicial process is controlled by the due process provisions of State and Federal Constitutions. Dartmouth College Case, 4 Wheat. 581; Yick Wo v. Hopkins, 118 U.S. 356; Henderson v. Mayor, 92 U.S. 259; Chy Lung v. Freeman, 92 U.S. 275; Ex parte Virginia, 100 U.S. 399; Neal v. Delaware, 103 U.S. 370. (b) The refusal to consider light company's parol evidence denied due process. Womach v. St. Joseph, 201 Mo. 482; Jones v. Yore, 142 Mo. 44; Barber Asphalt Co. v. Ridge, 169 Mo. 384; Bertholf v. O'Reilly, 74 N.Y. 509. (c) The refusal of the court to recognize the indemnity opinion as res judicata that the Rose judgment was not conclusive inter se denied due process of law contrary to Section 30, Article II, Missouri Constitution, and to Section 1, Fourteenth Amendment, United States Constitution. Dartmouth College Case, 4 Wheat. 581; Murray v. Hoboken Land Co., 18 How. 272, 15 L.Ed. 272. (5) In actions for contribution by one judgment defendant against the other the prior judgment is not conclusive of anything whatsoever. (a) The principle of mutuality is that if a judgment cannot be an estoppel in favor of a person, it cannot be an estoppel against such person. 34 C. J., pp. 988-990; Black on Judgments, sec. 548; 1 Freeman on Judgments (5 Ed.), p. 929, sec. 428; Bell v. Hoagland, 15 Mo. 364; Bennett v. Accident Corp., 213 Mo.App. 430; State ex rel. v. Barber, 26 Mo.App. 494; Brooklyn Co. v. Nat. Bank, 102 U.S. 14, 26 L.Ed. 61; Keokuk Co. v. Missouri, 152 U.S. 30, 38 L.Ed. 450; Bigelow v. Old Dominion Co., 225 U.S. 111, 56 L.Ed. 1021. (6) Telegraph company was actively and positively negligent in furnishing to Rose an unsafe place in which to work. Eckles v. Des Moines Casket Co., 130 N.W. 114; Rose v. Mo. Dist. Tel. Co., 43 S.W.2d 562. (a) Telegraph company was guilty of active and positive negligence in ordering Rose to climb the pole when its inspectors had previously inspected it and actually knew the dangerous condition of the cross-arm. The evidence tended to prove such actual knowledge, and telegraph company did not produce its inspectors to deny such actual knowledge. Weatherford Co. v. Veit, 196 S.W. 991; Alaska S. S. Co. v. Pac. Coast Gypsum Co., 128 Wash. 657; Carson v. Knight, 284 S.W. 619. (b) The negligence of telegraph company in requiring Rose to climb the pole, when telegraph company could have known the danger by the exercise of ordinary care, was active negligence. Beven on Negligence, p. 53; Rose v. Mo. Dist. Tel. Co., 43 S.W.2d 568, 328 Mo. 1026; 3 Labatt on Master & Servant, p. 2713; 45 C. J., pp. 653-654; Glappa v. Bloomer, 146 N.W. 134; Detroit Co. v. Bloomer, 160 N.W. 542; Village v. Citizens Tel. Co., 173 N.W. 382; Eastern Tex. Elec. Co. v. Joiner, 27 S.W.2d 918.

Smith B. Atwood, William F. Coyle, James A. Waechter and Frank P. Aschemeyer for Southwestern Bell Telephone Company; Earl H. Painter of counsel.

(1) This is an action at law and not a suit in equity. (a) There was no right of action, either at common law or in equity which permitted one of several joint tortfeasors to recover contribution from others. Such right of action is created by the statute (Sec. 3268, R. S. 1929), so that an action for contribution under the statute is purely legal and not equitable in character. 13 C. J. 828; Flenner v....