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

• Decision Date: 08 February 1935
• Citation: 79 S.W.2d 257,336 Mo. 453
• Parties: Missouri District Telegraph Company, a Corporation, Appellant, v. Southwestern Bell Telephone Company, a Corporation, and Union Electric Light & Power Company, a Corporation
• Court: Missouri Supreme Court

79 S.W.2d 257

336 Mo. 453

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

Supreme Court of Missouri

February 8, 1935

Rehearing Overruled February 8, 1935.

Appeal from Circuit Court of City of St. Louis; Hon. O'Neill Ryan, Judge.

Affirmed.

Francis R. Stark and Jones, Hocker, Sullivan, Gladney & Reeder for Missouri District Telegraph Company.

(1) Missouri District is entitled to indemnity from Union and Bell. (a) The rotten cross-arm was the causa sine qua non of the former judgment which Missouri District was compelled to pay. (b) Union and Bell erected and maintained the rotten cross-arm in the path of Rose's duty as a servant of Missouri District, a lessee of the pole. (c) Missouri District failed in its duty to warn Rose against the danger of the cross-arm so erected and maintained by Union and Bell. (d) Missouri District's liability to Rose was a liability to which Missouri District was subjected and exposed by the negligence of Union and Bell. (e) Union and Bell are liable over to Missouri District for the damages adjudged to Rose and against Missouri District on account of the rotten cross-arm negligently maintained in the path of Rose's duty by Union and Bell. Merritt v. Kinloch Tel. Co., 215 Mo. 299; Kinloch Tel. Co. v. St Louis, 268 Mo. 485; Busch & Latta Painting Co. v Cons. Co., 310 Mo. 437; Springfield v. Clement, 205 Mo.App. 118; Gray v. Gas Light Co., 114 Mass 149; Fid. & Cas. Co. v. Ill. Co., 140 Minn. 229, 167 N.W. 801; Alaska Steamship Co. v. Gypsum Co., 71 Wash. 359, 128 P. 654; Ry. Co. v. Pigott, 54 Tex. Civ. App. 367, 116 S.W. 847; Electric Co. v. Tel. Co., 31 F.2d 52; Washington Gas Co. v. Dist. of Columbia, 161 U.S. 328; Union Stock Yards v. Railroad Co., 196 U.S. 217. Plaintiff's right to be indemnified by the defendants includes its right to recover its reasonable and just expenses in connection with the former litigation, including reasonable attorneys' fees. Robbins v. Chicago, 4 Wall. 674; Town of Waterbury v. Traction Co., 74 Conn. 152, 50 A. 7; Westfield v. Mayo, 122 Mass. 100, 23 Am. Rep. 292; Canal Co. v. County-Commissioner, 57 Md. 201, 40 Am. Rep. 437; Mors-Le-Blanch v. Wilson, 8 Common Pleas, 227; Wakefield v. Edison Co., 179 N.Y.S. 606. (2) This is an action upon a joint judgment to which plaintiff and defendants were parties. In such action the former judgment is conclusive evidence of the facts constitutive of the liability of all the parties to Rose. Concretely, it is conclusive evidence of the facts as to the existence, ownership and legal accountability for the rotten cross-arm. (a) It would be conclusive evidence of such facts if in the former action Rose had sued only Missouri District and the latter had "vouched in" Union and Bell as being primarily liable for an injury directly caused by the rotten cross-arm. Strong v. Phoenix Ins. Co., 62 Mo. 289; Lovejoy v. Murray, 3 Wall. 1; Robbins v. Chicago, 4 Wall. 657; Washington Gas Co. v. Dist. of Columbia, 161 U.S. 316. (b) With the stronger reason is it conclusive evidence of such facts when (1) Union and Bell were made joint parties defendant in a petition which directly charged Union with the ownership of the cross-arm and charged Union and Bell with negligently maintaining it in its dangerous condition in the path of Rose's duty; (2) when Union and Bell contested the facts not only as against Rose, but stubbornly and even bitterly as between themselves, Bell undertaking to shunt aside the ultimate responsibility and to fasten it upon Union by proving that Union, despite the noncommittal entries on its record, did verily own the rotten cross-arm. In this case the ownership of the rotten cross-arm is rem adjudicatem. There should be an end of litigation. Kinloch Tel. Co. v. St. Louis, 268 Mo. 485, 215 Mo. 299; Gerber v. Kansas City, 311 Mo. 49; First Natl. Bank v. First Natl. Bank, 68 Ohio St. 43, 67 N.E. 93; Fulton County Gas Co. v. Telephone Co., 200 N.Y. 287; Osage City Bank v. Jones, 51 Kan. 379, 32 P. 1096; Norfolk, etc., Ry. v. Munday, 66 S.E. 61; Caldwell v. Blodgett, 256 F. 744. (3) The lease from Bell to Missouri District does not obligate Missouri District to indemnify Bell for the consequences of Bell's own negligence. Globe Refining Co. v. Landa Cotton Oil Co., 190 U.S. 543; Stebbins v. Welig, 257 F. 234; Natl. Surety Co. v. Roth, 208 Mo.App. 283; Perry v. Payne, 217 Pa. St. 252; Marshall v. Railway Co., 112 A. 526, 10 Am. & Eng. Ann. Cas. 593. (4) If not entitled to indemnity from the defendants, plaintiff is at all events entitled to contribution from them. Knapp, Stout & Co. v. St. Louis, 156 Mo. 353; State v. Land Co., 161 Mo. 671; Barnett v. Ground, 304 Mo. 606; Knight v. Railway Co., 120 Mo.App. 323; Musgrove v. Bank, 187 Mo.App. 496.

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

(1) The action of indemnity is ex contractu. The contract may be express or implied. In a case such as this, it does not arise from the degree of negligence toward the party injured, but from the relationship of the parties between whom the implication of a contract exists. This contractual relation must be proven; and it is not proven by a mere showing that both were negligent toward the party injured (e g., the Rose judgment). 31 C. J., p. 420, sec. 4, p. 447, sec. 47, p. 449, sec. 49, p. 244, sec. 10, p. 574, sec. 556; 1 Restatement of Law of Contracts, p. 7, sec. 5. This relationship must be established by facts dehors the Rose judgment, and since it is not so established, plaintiff cannot recover. (a) The Bell introduced a a new matter constituting a defense, in the nature of an express written contract providing for indemnity for the Bell. This express contract supersedes any other contract that could conceivably arise by implication. (2) The declaration of law in the nature of a demurrer to the evidence was properly given at the request of Bell, because: (a) Plaintiff's petition does not state a cause of action for indemnity. Springfield v. Clement, 205 Mo.App. 128; Columbia v. Malo, 217 S.W. 627. (b) The evidence is insufficient to entitle plaintiff to indemnity: The suit is not upon the Rose judgment, since the cause of action attempted to be asserted here is not upon the same cause of action or between the same parties as in the Rose case. The defendants in the Rose case were not adversary parties and there were no issues inter se (on the pleadings) between the defendants. Freeman on Judgments (5 Ed.), sec. 690; Murphy v. De France, 101 Mo. 159; State ex rel. v. Muench, 217 Mo. 137; Joyce v. Growney, 154 Mo. 264; Charles v. White, 214 Mo. 187. The judgment roll in the Rose case is incompetent and of no evidentiary value here since the three defendants in the Rose case were not adversary parties and there were no cross-pleadings and issues between Missouri District and Bell, hence the Rose judgment constitutes neither a bar nor an estoppel. 34 C. J., pp. 745-6; Black on Judgments, sec. 506; Case v. Sipes, 280 Mo. 120; Baumhoff v. Railroad, 205 Mo. 269; 34 C. J., pp. 1040-42; 1 Freeman on Judgments (5 Ed.), sec. 422; M., K. & T. Ry. Co. v. Am. Surety Co., 291 Mo. 110; O'Rourke v. Ry. Co., 142 Mo. 353; Souther v. Woodruff Realty Co., 175 Mo.App. 256; McMahan v. Geiger, 73 Mo. 145; Charles v. White, 214 Mo. 187; Eaton & Prince Co. v. Trust Co., 123 Mo.App. 117; Springfield v. Plummer, 89 Mo.App. 515; Gerber v. Kansas City, 311 Mo. 49; Wiggin v. St. Louis, 135 Mo. 558; Mullins v. Kansas City, 200 Mo.App. 641; Costello v. Kansas City, 209 Mo.App. 155. Regardless of the allegations of negligence in the Rose petition as to Missouri District, its duty and liability to Rose is determined by the rules of law governing the relationship of master and servant, and on the issue of liability over, Missouri District is charged with all the obligations of a master to his servant, no matter how circumscribed Rose's allegations may have been. Klebe v. Parker Dist. Co., 207 Mo. 480; Hoffman v. Peerless White Lime Co., 317 Mo. 86; Rutledge v. Swinney, 261 Mo. 128, 169 S.W. 17; Lutgen v. Standard Oil Co., 221 Mo.App. 773, 287 S.W. 885; Spindler v. Am. Express Co., 232 S.W. 690; Rose v. Mo. Dist. Tel. Co., 43 S.W.2d 562. There could be no estoppel, as to Bell, of any fact or issue decided between Rose and Missouri District since Missouri District neither alleged nor proved that Bell was tendered the defense of that case by Missouri District, or given the opportunity of controlling the defense of that suit in behalf of Missouri District. Stewart v. Thomas, 45 Mo. 42; Strong v. Phoenix Ins. Co., 62 Mo. 295; Garrison v. Baggage Transp. Co., 94 Mo. 137; Columbia v. Malo, 217 S.W. 628; Springfield v. Plummer, 89 Mo.App. 532; Black on Judgments, sec. 574; 1 Freeman on Judgments (5 Ed.), p. 984; 31 C. J., pp. 463-4; 34 C. J. 1032; Bank of Commerce v. Maryland Casualty Co., 307 Mo. 435; St. Joseph v. Union, 116 Mo. 643. Even if the judgment in the Rose case is conclusive and, thus, constitutes competent evidence, Missouri District is not entitled to indemnity and Bell is not liable over to Missouri District, since the judgment roll shows on its face that Missouri District was guilty of active, primary negligence causing Rose's injury, while Bell was guilty of only passive and secondary negligence. 31 C. J. 454, sec. 54; 31 C. J. 456; Busch & Latta Painting Co. v. Woerman Const. Co., 310 Mo. 437; Weatherford Water, etc., Co. v. Veit, 196 S.W. 986; Alaska S. S. Co. v. Pac. Coast Gypsum Co., 128 P. 654; Carson v. Knight, 284 S.W. 619; Eckles v. Des Moines Casket Co., 130 N.W. 113; Union Stock Yards Co. v. Railroad Co., 196 U.S. 217; Central of Georgia Ry. Co. v. Macon...