Missouri Pac. R. Co. v. Whitehead & Kales Co.

Citation566 S.W.2d 466
Decision Date28 April 1978
Docket NumberNo. 59906,59906
CourtUnited States State Supreme Court of Missouri
PartiesMISSOURI PACIFIC RAILROAD COMPANY, a corporation, Third-Party Plaintiff-Appellant, v. WHITEHEAD & KALES COMPANY, Third-Party Defendant-Respondent.

Harlan D. Burkhead, Kansas City, for third-party plaintiff-appellant.

Arthur C. Popham, Jr., Kansas City, for third-party defendant-respondent.

SEILER, Judge.

In Sampson v. Missouri Pacific Railroad Co., 560 S.W.2d 573 (Mo. banc 1978), we affirmed a $300,000 judgment against Missouri Pacific for damages for injuries received by Robert Sampson, an employee of its consignee. Sampson was injured when he fell to the ground from the top of a three decker auto rack rail car.

The instant case arises from the attempt of Missouri Pacific, pursuant to rule 52.11 and § 507.080, RSMo 1969, to bring Whitehead & Kales Company, Inc., the manufacturer and installer of the auto rack, into the Sampson case as a third party defendant liable to Missouri Pacific for all or a part of the plaintiff's claim against Missouri Pacific.

Missouri Pacific alleged that Whitehead & Kales was the designer, manufacturer, seller and installer of the auto rack and knew that workmen would be working on the third deck in loading automobiles; that Whitehead & Kales warranted the auto rack was merchantable and fit for the purposes of loading and transporting automobiles by rail and was not defective in design or inherently dangerous for the uses intended; that Whitehead & Kales negligently designed and manufactured the auto rack by reason of the omission of a portion of a foot rail on the third deck and failed to warn Missouri Pacific or Sampson of this dangerous condition; that Missouri Pacific had notified Whitehead & Kales of the pendency, and tendered the defense, of the Sampson lawsuit, and that if Sampson recovered from Missouri Pacific it would be by virtue of Whitehead & Kales' original, active, and primary negligence in the above respects. 1

The trial court dismissed Missouri Pacific's third party petition and denied leave to file an amended petition, taking the position the parties were both "in pari delicto, where no legal right of contribution exists among those who are not joint judgment tortfeasors, and where no ground or legal basis for indemnity is stated."

The court of appeals, Kansas City district, affirmed the trial court's judgment, finding that Missouri Pacific's alleged failure to warn Sampson constituted active negligence and that it was in pari delicto with Whitehead & Kales, preventing any indemnification, citing Crouch v. Tourtelot, 350 S.W.2d 799, 807 (Mo. banc 1961), and Cupp v. Montgomery, 408 S.W.2d 353 (Mo.App.1966). We granted transfer for the purpose of reexamination and clarification of the law on non-contractual indemnity and the law of contribution. 2 We reverse and remand.


A few preliminary observations are necessary.

It should be borne in mind that the right to non-contractual indemnity presupposes actionable negligence of both parties toward a third party. Donald v. Home Service Oil Co., 513 S.W.2d 426 (Mo.banc 1974); State ex rel. Merino v. Rose, 362 Mo. 181, 240 S.W.2d 705 (banc 1951); Best v. Yerkes, 247 Iowa 800, 77 N.W.2d 23 (1956); 1 J. Dooley, Modern Tort Law § 26.07, at 547 (1977).

While Missouri Pacific is asking, on the face of its third-party petition, for full reimbursement or indemnity from Whitehead & Kales, in actuality it is doing so on the basis that while both are to blame, its fault is relatively less than that of Whitehead & Kales. If Missouri Pacific had not been found guilty of some fault on the Sampson claim, this case would not be before us. Donald v. Home Service Oil Co., 513 S.W.2d at 428.

The third party rule under which Missouri Pacific is proceeding which stems from the statute passed in 1943 as explained below, expressly provides for bringing in a party who is or may be liable to the defendant "for all or part " of the claim being made against the defendant (emphasis supplied). This language does not limit the defendant to an "all or nothing" claim or recovery against the person he seeks to bring in.

Rule 52.11 was first adopted by the court July 1, 1959, to be effective April 1, 1960. Prior to that, however, in 1943, the legislature had enacted an entire new civil code, Laws 1943 at 353-97. Included therein was Missouri's first third-party practice statute, § 20, later § 507.080, RSMo 1959, wherein a defendant was permitted to bring into the lawsuit a person not a party to the action who was liable to him or to the plaintiff for all or part of the plaintiff's claim against him. Thus it can be said that the legislature, as a matter of policy, decided that a third party could be brought into the case where liable to the original defendant either in whole or in part for the plaintiff's claim against him. 3 This comports exactly with what Missouri Pacific is seeking to do in the present case.


The long history of the law of joint and concurrent tortfeasor liability in our jurisprudence is in fact a rich expositional refinement of the principle of fairness. 4 Early in Anglo-American law the "rule" developed that there shall be no contribution or indemnity between joint tortfeasors, 1 T. Street, The Foundation of Legal Liability 490 (1906), as "a necessary consequence of the principle embodied in the maxim ex turpi causa non oritur actio (out of an immoral or illegal consideration an action does not arise)." Id. The "rule" has mistakenly been attributed to Merryweather v. Nixan, 8 D. & E. 186, 101 Eng.Rep. 1337 (K.B.1799), a case in which contribution was denied as between two intentional joint tortfeasors, the court disclaiming any effect its decision may have on "cases of indemnity", id., by which is implied "a primary or basic liability in one person, though a second person is also for some reason liable with the first or even without the first, to a third person". Leflar, Contribution and Indemnity Between Tortfeasors, 51 U.Pa.L.Rev. 130, 146 (1932). Rather, the "rule" in Merryweather v. Nixan, supra, is the exception, the true common law rule having been determined in Battersey's Case, Winch's Rep. 48 (Common Pleas 1623) that "among persons jointly liable the law implies an assumpsit either for indemnity (described above) or contribution (shared liability) and the exception is that no assumpsit, either express or implied, will be enforced among wilfull tortfeasors or wrongdoers." Note, Contribution Between Persons Jointly Charged for Negligence Merryweather v. Nixan, 12 Harv.L.Rev. 176, 177 (1898).

What is unmistakable about the common law of joint or concurrent tortfeasor liability, in whatever configuration it may be understood, is its attention to the relative weight of fault. Negligent commission of a tort was "bad" but not as "bad" as the intentional commission of a tort, Battersey's Case, supra, to which the response of courts was to refuse to "adjust among intentional wrongdoers the damage flowing from the wrong . . . (which) would aid intentional wrongdoers in avoiding the consequences of their acts." Leflar, supra at 179. For those whose joint torts were not wilful, malicious, intentional, unlawful, or immoral, contribution would be allowed even though they were in pari delicto. Note, supra, 12 Harv.L.Rev. at 182. These rules and maxims were developed and sustained by application of fairness and the "ethical principles involved." Id. at 194. Actually, "it seems not to make much difference what formal explanation is accepted, so long as it is understood that the right to contribution is not necessarily based on a voluntary consensual transaction between the parties. The essential thing is the attempt to be fair as between persons subjected to a common legal liability." Leflar, supra at 137; See R. Pound, The Spirit of the Common Law 20-31 (1921). Nonetheless, in Missouri the courts did not restrict denial of contribution or indemnity to intentional tortfeasors. The general rule has been there is no right to indemnity or contribution between concurrent or joint tortfeasors in pari delicto, except as provided by statute. E. g., Union Electric Company v. Magary, 373 S.W.2d 16, 22 (Mo.1963); Crouch v. Tourtelot, 350 S.W.2d 799, 803 (Mo. banc 1961); Berkson v. Kansas City Cable Ry. Co., 144 Mo. 211, 217, 45 S.W. 1119, 1120 (1898).


Despite the early common law "rule", we do permit indemnity to some extent between non-contractual concurrent tortfeasors in Missouri. Indemnity is theoretically tied to the principle of fairness. It was once described by Learned Hand as "an extra form of contribution." Slattery v. Marra Brothers, Inc., 186 F.2d 134, 138 (2d Cir. 1951). It unquestionably has a strong flavor of unjust enrichment flowing from the realization that while two tortfeasors may be jointly liable each in full to an injured plaintiff, as between them there may be a considerable difference in blame.

The elucidation of the distinction between concurrent tortfeasors as to their relative fault has spawned a series of court-coined terms which is "bewildering, to say the least." Davis, Indemnity Between Negligent Tortfeasors: A Proposed Rationale, 37 Iowa L.Rev. 517, 536 (1952). We ourselves have criticized them as unworkable and unsatisfactory. Donald v. Home Service Oil Co., 513 S.W.2d 426, 430 (Mo. banc 1974); Crouch v. Tourtelot, 350 S.W.2d 799, 807 (Mo. banc 1961); McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., 323 S.W.2d 788, 793 (Mo.1959). In reality, these are all methods of weighing the degree of negligence, 47 N.Y.U.L.Rev. 815, 821 (1972), used as the basis or test determining whether a moving party may be indemnified. Among them have been the distinction between "active and passive" negligence, e. g., Kansas City Southern Ry. Co. v. Payway Feed Mills, Inc., 338 S.W.2d 1, 7 (Mo.1960); "primary and secondary" duty, e. g., Hales v. Green Colonial, Inc., 402...

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