Rakestraw v. Norris, 9170

• Decision Date: 10 March 1972
• Docket Number: No. 9170,9170
• Citation: 478 S.W.2d 409
• Parties: Ellen RAKESTRAW, Plaintiff-Respondent, v. Wilbur O. NORRIS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 409

478 S.W.2d 409

Ellen RAKESTRAW, Plaintiff-Respondent, v. Wilbur O. NORRIS, Defendant-Appellant.

No. 9170.

Missouri Court of Appeals, Springfield District.

March 10, 1972.

E. C. Curtis, Farrington, Curtis & Strong, Springfield, for defendant-appellant.

Harold L. Henry, West Plains, for plaintiff-respondent.

HOGAN, Judge.

This is an action to recover damages for personal injuries sustained in an automobile collision. Plaintiff and her husband, Otis Rakestraw, filed their petition in two counts. In the first count, plaintiff Ellen Rakestraw sought judgment in the amount of $15,000 for personal injuries; in the second count, Otis Rakestraw sought to recover the sum of $7,500 for loss of services and consortium. On trial both counts were submitted to the jury, which returned a verdict in favor of plaintiff Ellen in the sum of $8,000 but made no finding whatever on plaintiff Otis' claim. Defendant appealed, but we were obliged to dismiss the appeal as premature because the judgment entered left one separate count pending and undisposed of. Rakestraw v. Norris, Mo.App., 469 S.W.2d 759, 761(5). On remand, plaintiff Otis dismissed his claim, a final judgment was entered, and the cause is again before us on defendant Norris' appeal.

Before the essential merits of this appeal can be determined, it is necessary to dispose of a preliminary question raised by the defendant with respect to the venue of the action. The collision in which plaintiff was injured occurred in Greene County. Plaintiff and the driver of the automobile in which she was riding, a Mr. Goodman, are residents of Howell County. Averring in her petition that Mr. Goodman had negligently '. . . operated his automobile at an excessive rate of speed under the conditions and circumstances then and there existing,' that defendant had been negligent in several respects, and further alleging that she had been injured as a result of their 'combined negligence,' plaintiff joined both drivers as defendants and instituted her action in Howell County. Mr. Norris was served with process in Greene County, and it is upon the fact of Mr. Goodman's residence in Howell County that plaintiff sought and now seeks to maintain that the venue of the action was appropriately laid. § 508.010, par. (2), RSMo (1969), V. A.M.S. ¹ Sanders v. Marks, 228 Mo.App. 1079, 1085, 60 S.W.2d 692, 695(4, 5). Defendant does not question the general proposition that if he and Goodman were concurrently negligent in causing plaintiff's injuries they would be subject to a joint action and the venue would be proper, State ex rel. C. H. Atkinson Paving Co. v. Aronson, 345 Mo. 937, 941--942, 138 S.W.2d 1, 3(4), and he grants that the plaintiff stated an actionable claim against both defendants. Defendant points out, however, that Mr. Goodman's wife was plaintiff's cousin, that both the Goodmans and plaintiff were residents of Howell County, that plaintiff dismissed as to Mr. Goodman before trial, and maintains that plaintiff's joinder of Mr. Goodman as a defendant was fraudulent and pretensive and was made solely for the purpose of establishing venue in Howell County. Flatly asserting that plaintiff never at any time had either the means or the intention of pressing her claim against Mr. Goodman, defendant urges that the trial court erred in denying his motion to quash service and dismiss the petition, made before the trial began but after a series of general appearances had been entered by the defendant. Plaintiff cites § 509.340 (now Rule 55.37), Jones v. Church, Mo.App., 252 S.W.2d 647, Lieffring v. Birt, Mo.App., 154 S.W.2d 597, and argues that defendant waived any right to object to the venue of the action or the trial court's jurisdiction over his person long before the motion was filed. In this connection, plaintiff points out that the motion was filed nearly two years after the action was instituted, subsequent to the entry of several general appearances by the defendant. She also notes that after the motion was denied defendant applied for and was granted a change of venue to the Circuit Court of Wright County, where the case was finally tried.

As to the plaintiff's claim of waiver, it is now well settled that a timely motion objecting to the venue of an action or the jurisdiction of the court over the person of a defendant preserves those objections throughout the trial, regardless of the fact that the defendant may thereafter plead over to the merits, utilize discovery procedures, apply for or consent to continuances, or apply for and obtain a change of venue. The objecting defendant need no longer, as some of the earlier cases indicated, either resort to prohibition or cringingly enter a 'special appearance' and then suffer default to avoid waiver of the jurisdictional question. Rule 55.37; Greenwood v. Schnake, Mo., 396 S.W.2d 723, 725--726. ² It is not so clear, from the present case law, when a motion made pursuant to Rule 55.31(a) is to be regarded as timely; in fact, the cases construing the time limitations contained in Rule 55.36 and the consolidation and waiver provisions of Rule 55.37 are in apparent conflict. ³ We have reached the conclusion that defendant's motion was untimely by any standard, but we decline to contribute to any further apparent conflict in the case law. Rather, we will consider the motion on its merits.

If it has not been fully articulated, the law on the subject of fraudulent and pretensive joinder under § 508.010, par. (2), is reasonably clear from the recent cases. Section 508.010, par. (2), provides that when there are several defendants and they reside in different counties, suit may be brought in any such county. The plaintiff must of course state a cause of action against the resident defendant in his petition, but the fact that he does so is not conclusive. A defendant is entitled to raise the issue of improper venue and lack of jurisdiction over his person by timely motion prior to the trial, and if, despite plaintiff's statement of a paper case against the resident defendant, it nevertheless appears to be clear from the records, pleadings and facts presented in support of the motion (if any) that the resident defendant cannot be held liable on any reasonable ground or theory and that plaintiff must be presumed to have known this, then the joinder cannot be considered justified and the cause should be dismissed. On the other hand, if it appears that plaintiff had reason honestly to believe on the facts that he had a joint cause of action against the resident defendant along with the others, and if he has stated a cause of action, the case should not be dismissed as based upon a fraudulent joinder. The objection that the venue is improper and jurisdiction of the person is lacking because of pretensive joinder should be presented by motion under Rule 55.31; the movant carries the burden of persuasion and the burden of proof if proof is necessary. The motion may be taken upon affidavits and counter-affidavits, or the court may hear evidence. ⁴ All that is necessary to justify joinder under § 508.010(2) is that plaintiff be entitled to an honest belief that under the law and the evidence he has a justiciable claim against the resident defendant. White v. Burkeybile, Mo., 386 S.W.2d 418, 425(13). The fact that plaintiff is related to Mrs. Goodman and that she instituted the action in the county in which both reside does not necessarily indicate a fraudulent joinder, Sanders v. Marks, supra, 228 Mo.App. at 1086, 60 S.W.2d at 695(6), and the fact that plaintiff dismissed as to Mr. Goodman before trial would not divest the Howell County Circuit Court of jurisdiction over defendant's person, if that jurisdiction was fairly acquired prior to the dismissal. Capital City Bank v. Knox, 47 Mo. 333, 334--336; January v. Rice, 33 Mo. 409, 411--412; Gray v. Grand River Coal & Coke Co., 175 Mo.App. 421, 423--424, 162 S.W. 277--278(1).

In this court, the defendant relies heavily upon the testimony given by plaintiff and the Goodmans in two pretrial depositions, one taken April 13, 1967, and the other taken June 13, 1968. The whole of the second deposition is not before us, but one of the four supplements to the transcript filed indicates that it was before the trial court and was considered with the first deposition when evidence was heard on the motion to quash service and dismiss the petition on August 1, 1968. The defendant emphasizes in his brief that when plaintiff testified by deposition on June 13, 1968, she stated she did not believe Mr. Goodman was driving at an excessive speed just before the accident, that other automobiles were going faster than Mr. Goodman, and that Mr. Goodman must have been going about 30 or 35 miles an hour, 'something like that, because we wasn't in no hurry.' The speed limit at this point (on Glenstone Avenue) was 40 miles per hour. Defendant also calls attention to the fact that upon this last deposition plaintiff was asked, 'Do you know of anyone who does know of anything that (Goodman) did to cause or anything that he failed to do to contribute to cause this accident,' and plaintiff answered, 'No, I sure don't.'

It may be granted that this testimony, taken in isolation, tends to support defendant's argument, but her appreciation of the legal significance of the facts available to her is not decisive. The record shows that the accident occurred on an arterial street while it was wet and at a time when traffic is usually heavy, and so, contrary to defendant's contention, the pretrial evidence that Mr. Goodman was driving within the speed limit would not absolve him of negligently driving at an excessive rate of speed; driving at a speed which endangers persons or property in the circumstances may constitute negligence even though the particular rate of speed is within the limits of a statute or ordinance. Silvey v. Missouri Pacific Railroad Company, Mo., 445 S.W.2d 354, 362(10); Gerdel v. Broccard, Mo., 428...