Paddock-Hawley Iron Company v. Rice

• Decision Date: 10 February 1904
• Citation: 78 S.W. 634,179 Mo. 480
• Parties: PADDOCK-HAWLEY IRON COMPANY, Appellant, v. RICE et al
• Court: Missouri Supreme Court

78 S.W. 634

179 Mo. 480

PADDOCK-HAWLEY IRON COMPANY, Appellant, v. RICE et al

Supreme Court of Missouri, First Division

February 10, 1904

Appeal from St. Louis City Circuit Court. -- Hon. W. B. Douglas Judge.

Affirmed.

W. B Homer for appellant.

(1) The general rule that neither contribution nor indemnity will be given to one of several tortfeasors against the others is only applied in cases of intentional and conscious wrongdoing; if the tortious act was committed without guilty intent, or if the plaintiff without personal fault has been exposed to liability, because of his responsibility for the acts of the actual wrongdoer, he can recover contribution from those who participated in or shared the responsibility. Merryweather v. Nixan, 8 Dun. and East 186; Palmer v. Wick, 1 App. Cas. L. R. 318; Bailey v Bussing, 28 Conn. 458; Horback v. Elder, 18 Pa. St. 35; Armstrong v. Clarion, 66 Pa. St. 218; Nickerson v. Wheeler, 118 Mass. 295; Torpy v. Johnson, 43 Neb. 882; Colmer v. Wilson, 13 Utah 129; Thweatt v. Jones, 1 Rand. 328; Coventry v. Barton, 17 Johns. 142; Adamson v. Jarvis, 4 Bing. 66; Goldsborough v. Darst, 9 Ill.App. 205; Sims v. Singleton, 2 McMullan 184; Ankeny v. Moffett, 37 Minn. 109; Moore v. Appleton, 26 Ala. 633; Jacobs v. Pollard, 10 Cush. (Mass.) 287; Campbell v. Messier, 4 John. Ch. 338; Dearing v. Earl of Winchester, 1 Cox Cas. 318; Van Petten v. Richardson, 68 Mo. 379; Nichols v. Nowling, 82 Ind. 488. (2) The foregoing doctrine is applied in attachment and like actions. Vandiver v. Pollak, 107 Ala. 547; s. c., 54 Am. St. R. 118; Vandiver v. Pollak, 97 Ala. 467, s. c., 19 L. R. A. 628; Farwell v. Becker, 129 Ill. 272; Acheson v. Miller, 2 Ohio St. 205; Selz v. Guthman, 62 Ill.App. 635; Frankenthal v. Lingo, 16 Tex. Civ. App. 229; S. C., 40 S.W. 815; Ellis v. Howard, 17 Vt. 380; Stone v. Dickinson, 5 Allen (Mass.) 29. (3) The attaching creditors, both plaintiff and defendants, were free from any intentional or conscious wrongdoing in bringing the attachment suits or making the levies. Vandiver v. Pollak, 107 Ala. 547; Peters-Miller Shoe Co. v. Smith, 53 Mo.App. 640. (4) Plaintiffs in the various attachment suits authorized the bringing of the same and the attorneys had authority to take all the steps that were taken in the said suits. Valle v. Picton, 16 Mo.App. 181; S. C., 91 Mo. 215; O'Brien v. Yare, 88 Mo.App. 493; 1 Thompson on Trials, sec. 191; Cochran v. Thomas, 131 Mo. 258; State v. Downs, 164 Mo. 475; 3 Am. and Eng. Ency. Law (2 Ed.), pp. 349, 350; Scarritt Fur. Co. v. Moser, 48 Mo.App. 548; Davis v. Hall, 90 Mo. 659; Railroad v. Stevens, 36 Mo. 150; Muir v. Orear, 87 Mo.App. 41; State ex rel. v. Chaney, 36 Mo.App. 513; Vaughn v. Fisher, 32 Mo.App. 35; Clark v. Randall, 9 Wis. 135. (5) The levies were both joint and simultaneous, and the act of the sheriff in making such levies was authorized and ratified by the respective attaching plaintiffs. Vandiver v. Pollak, 107 Ala. 550; Stone v. Dickinson, 5 Allen (Mass.) 29; Ellis v. Howard, 17 Vt. 380; Brewster v. Gauss, 37 Mo. 518; Conrad v. Fisher, 37 Mo.App. 363; Canifax v. Chapman, 7 Mo. 176; Page v. Freeman, 19 Mo. 422; Allred v. Bray, 41 Mo. 487; McManus v. Lee, 43 Mo. 208; Luebbering v. Oberkoetter, 1 Mo.App. 399; Holliday v. Jackson, 21 Mo.App. 667; Thomas v. Werremeyer, 34 Mo.App. 670; Meade v. Railroad, 68 Mo.App. 100; Willi v. Lucas, 110 Mo. 219; Vaughn v. Fisher, 32 Mo.App. 35; Perrin v. Claflin, 11 Mo. 13; Taylor v. Ryan, 15 Neb. 573; Peterson v. Foli, 67 Ia. 402; Leeser v. Boekhoff, 33 Mo.App. 234; Clark v. Brott, 71 Mo. 473; Kimm v. Osgood, 19 Mo. 61; Long's Appeal, 23 Pa. St. 297; Gottlieb v. Barton, 57 P. 754; Hallowell v. Page, 24 Mo. 590; Anthony v. Bartholomew, 69 Mo. 186; Dellinger v. Higgins, 26 Mo. 180; McDonald v. Leewright, 31 Mo. 29; Reeves v. Reeves, 33 Mo. 28; Stewart v. Stringer, 41 Mo. 400; Jeffries v. Wright, 51 Mo. 215; Bank v. Suman, 79 Mo. 527; Sparkman v. Swift, 81 Ala. 233. (6) The joint levy of the attachments by the sheriff was fully ratified by subsequent acts and proceedings in the attachment cases, by procuring an order of sale of the attached property, by declining to surrender the property upon the filing of the interpleas by Smyth, by making a contest for the same, and making common cause in the trial of the cases, by filing the joint stipulation in all of the cases and by consenting to judgment thereon. Vaughn v. Fisher, 32 Mo.App. 36; Peterson v. Foli, 67 Ia. 402; Wetzel v. Waters, 18 Mo. 396; Luebbering v. Oberkoetter, 1 Mo.App. 399; Kamerick v. Castleman, 29 Mo.App. 664; Dowell v. Taylor, 2 Mo.App. 329; Peckham v. Lindell Glass Co., 9 Mo.App. 459; State to use v. Donnelly, 9 Mo.App. 524; Rott v. Chandler, 10 Wend. 111; Ball v. Loomis, 29 N.Y. 412; Knight v. Nelson, 117 Mass. 458; Cole v. Edwards, 52 Neb. 711; Perrin v. Claflin, 11 Mo. 13; Taylor v. Ryan, 15 Neb. 573; Brewster v. Gauss, 37 Mo. 518; Kuhn v. Weil, 73 Mo. 213; Lesser v. Boeckhoff, 33 Mo.App. 234; Conrad v. Fisher, 37 Mo.App. 352; Palmer v. Shenkel, 50 Mo.App. 571. (7) Defendants were notified of the suit in which judgment was rendered against plaintiff, and even if not notified such judgment was proper evidence in the case. Vandiver v. Pollak, 107 Ala. 555; Selz v. Guthmann, 62 Ill.App. 635; Cathcart v. Foulke, 13 Mo. 561; Skrainka v. Rohan, 18 Mo.App. 340. (8) Recovery by plaintiff in this case should be against all of the defendants equally. Van Petten v. Richardson, 68 Mo. 379; Vandiver v. Pollak, 107 Ala. 560.

Martin L. Clardy, Robert A. Anthony, Walter D. Coles, Jones, Jones & Hocker and Lyon & Swarts for respondents.

(1) The evidence shows conclusively that the parties, in levying their attachments against Casebeer, acted severally and independently, and that there was no co-operation or concert of action between them, and consequently they can not be held joint tortfeasors. (2) The trespasses committed in levying the writs of attachment against Casebeer, being several and distinct, the plaintiffs were several, and not joint, tortfeasors, and, therefore, contribution will not lie as between them. Wehle v. Hairland, 42 How. Pr. 410; Rhea v. White, 3 Head (Tenn.) 121; Navigation Co. v. Richards, 57 Pa. St. 142; Miller v. Ditch Co., 87 Cal. 430; Blaidell v. Stephens, 14 Nev. 17; Hardware Co. v. Grocery Co., 64 Mo.App. 681; Leeser v. Boeckhoff, 33 Mo.App. 234; Brewster v. Gauss, 37 Mo. 519; Stanley v. Railroad, 114 Mo. 606; Berkson v. Railroad, 144 Mo. 217; Frankenthal v. Lingo, 16 Tex. Civ. App. 229; Sels v. Greene, 88 F. 127; Grund v. Van Vleck, 69 Ill. 479; Jobe v. O'Brien, 21 Tenn. 34; Winnie v. Johnson, 1 Duv. (Ky.) 171. (3) Even if there was some co-operation among the attorneys who represented the several attaching plaintiffs, such co-operation of attorneys can not be held to render the several plaintiffs joint tortfeasors. The authority of an attorney does not extend beyond the prosecution of his client's own suit, and unless authorized by his client so to do, an attorney can not by his conduct render his client liable for acts done by other independent suitors in prosecuting independent suits. (4) Assuming that the court holds that under the evidence, contribution ought to be decreed, as against respondents, then respondents maintain: (a) That the amount of the judgment rendered against Paddock-Hawley Iron Company, in the suit brought against it by Smyth in Iowa, is not, as against respondents M. Deguire & Company and Clark Shoe Company, competent evidence of the amount of the damages sustained by Smyth by reason of the levy of the several attachments in the Casebeer suits, as said respondents were never notified of the Iowa suit so as to have an opportunity of being heard therein. Cathcart v. Foulke, 13 Mo. 561. (b) That respondents can not be called upon to contribute with respect to: 1. Attorneys' fees expended in the Iowa suits, $ 1,398.50. 2. Traveling expenses, expenses of attorneys, etc., in such suit, $ 705. (c) That respondents can not be called upon to contribute with respect to the costs and expenses incurred by plaintiff in prosecuting suit against sheriff John H. Johnson and his sureties. (5) The release of the sureties upon the attachment bond by Smyth was a release of some of the joint tortfeasors and in law operates as a release of all. This defense was not made in the Iowa suit and the defendants, Clark Shoe Company and M. Deguire & Company, not having been legally notified, are not bound by that judgment, which could have been avoided by a proper defense.

OPINION

MARSHALL, J.

This is a suit in equity for contribution. In March, 1891, one E. R. Casebeer was engaged in business in Williamsville, Wayne county, Missouri. The plaintiff, and the defendants, Rice, Stix & Co., James Beakey Stove Co., and Clark Shoe Co. (which has since ceased to do business and its former directors are sued as trustees of the company) were engaged in business in St. Louis, and the defendant M. Deguire & Co. was engaged in business in Fredericktown, Missouri. Sometime prior to March 17, 1891, the Peters-Miller Shoe Co. began an attachment suit against Casebeer and had it levied on his stock of goods. Thereupon on March 17, 1891, the Clark Shoe Co., James Beakey Stove Co., Rice, Stix & Co., and the Martin Clothing Co., separately and each for itself and without the knowledge of the other, instituted attachment suits against Casebeer. They placed their claims in the hands of the Ladd Collection Agency in St. Louis, and Ladd sent them to I. N. Davidson, an attorney at Poplar Bluff, and he employed S. R. Durham, an attorney at Piedmont, to help him.

On March 15, 1891, a traveling representative of the plaintiff went to Williamsville, and presented a bill to Casebeer for what he owed the plaintiff. Casebeer gave him a draft for the bill, and on the next...