Rudolph v. Mundy

• Decision Date: 19 March 1956
• Docket Number: No. 5-883,5-883
• Citation: 226 Ark. 95,288 S.W.2d 602
• Parties: Marjory Holt RUDOLPH, Appellant, v. Joe MUNDY and Florence D. Cassidy, Appellees.
• Court: Arkansas Supreme Court

Page 602

288 S.W.2d 602

226 Ark. 95

Marjory Holt RUDOLPH, Appellant, v. Joe MUNDY and Florence D. Cassidy, Appellees.

No. 5-883.

Supreme Court of Arkansas.

March 19, 1956.

Concurring Opinion April 9, 1956.

Wade & McAllister, Fayetteville, for appellant.

Rex W. Perkins, E. J. Ball, Price Dickson and W. B. Putman, Fayetteville, for appellees.

WARD, Justice.

On April 23, 1954 an accident involving three automobiles occurred on Highway No. 16 a short distance west of the city limits of Fayetteville, Arkansas. Joe Mundy was driving his automobile east along said highway, and he had in the automobile with him La Wana Mundy, Betty Ann Mundy, and Rodney Mundy, a minor. Mrs. Marjory Holt Rudolph was driving her husband's automobile west on said highway, and just behind her, going in the same direction, was an automobile in which Mrs. Florence D. Cassidy was riding. When Mrs. Rudolph had reached a point on the highway where her home was situated just south of the highway, she [allegedly] carelessly and without giving any warning turned her car to the left in order to enter the driveway to her home. At this instant the automobile driven by Joe Mundy struck Mrs. Rudolph's automobile and then struck the automobile in which Mrs. Cassidy was riding. There is no contention by any one that Mrs. Cassidy was guilty of any negligence.

As a result of the collision Mrs. Cassidy was severely injured, Joe Mundy and the above named occupants of his car were injured, Mrs. Rudolph received a shock, and all three of the automobiles were damaged. Three separate and distinct suits were filed and docketed as set out below.

Suit No. 2362. Joe Mundy filed suit against E. L. Rudolph and Marjory Holt Rudolph alleging negligence on the part of Marjory Holt Rudolph (driver of the automobile] in making a left turn across the highway without giving any signal and prayed for $1,250 damage to his automobile and for $2,500 for injury to himself. The Rudolphs entered a general denial and pleaded contributory negligence on the part of Joe Mundy. They also filed a cross-complaint against Joe Mundy alleging that he was negligent in driving at an excessive rate of speed and in failing to yield the right of way and that the automobile in which they riding, belonging to Mr. Rudolph, was thereby damaged to the extent of $500. A jury verdict resulted in a judgment against Mrs. Rudolph in favor of Joe Mundy in the amount of $2,500. The jury failed to return any verdict in favor of Mrs. Rudolph.

Suit No. 2364. La Wana Mundy, Betty Ann Mundy and Rodney Mundy, a minor by next of friend, who were riding in the automobile with Mr. Joe Mundy at the time of the accident, filed suit against Mr. and Mrs. Rudolph making substantially the same allegations of negligence on the part of Mrs. Rudolph, asking for damages for injuries to the first two occupants in the amount of $2,500 and $1,000 for the minor. The Rudolphs made the same denial and plea of contributory negligence and filed the same cross-complaint as in the above case with the exception that they alleged that Joe Mundy and the other occupants of his car were on a joint mission. The jury returned a verdict against Mrs. Rudolph in favor of the minor in the sum of $100 and for $250 in favor of each of the other two, and rendered no judgment in favor of Mrs. Rudolph on her cross-complaint.

Suit No. 2418. Mrs. Florence D. Cassidy filed suit against Mrs. Rudolph setting forth the alleged acts of negligence on the part of Mrs. Rudolph, praying for damages for personal injuries in the amount of $50,000. To the above complaint Mrs. Rudolph entered a general denial, pleaded contributory negligence on the part of Mrs. Cassidy [this allegation of contributory negligence was later abandoned], and filed a cross-complaint. In this cross-complaint Mrs. Rudolph alleged that Joe Mundy's negligence caused or contributed to the accident, alleging that she received injuries in the nature of a shock as a result thereof, asking that Joe Mundy be made a party defendant, and prayed for judgment against Joe Mundy in the sum of $500. On this cross-complaint summons was issued and served on Joe Mundy. On April 19, 1955 Joe Mundy filed an answer to the above cross-complaint containing a general denial of negligence and stated that the collision was the result of the negligence of Mrs. Rudolph, asking that the said cross-complaint be dismissed.

On June 25, 1955 Mrs. Rudolph filed an 'Amended Answer and Cross-Complaint', denying the allegations of negligence, pleading contributory negligence, and by way of amended cross-complaint against Joe Mundy alleged in substance; the injuries sustained by the plaintiff, Mrs. Cassidy, were solely caused by the reason of the negligence of Joe Mundy in the operation of his automobile at the time of the collision [setting out several alleged acts of negligence on the part of Joe Mundy], and that in the event Mrs. Cassidy should recover any judgment against her [Mrs. Rudolph] because of the alleged injuries, then and in that event, Mrs. Rudolph will be entitled to judgment against Joe Mundy for contribution to the amount of one-half the amount of damages and costs that might be awarded to Mrs. Cassidy. The trial court, in effect, refused to allow Mrs. Rudolph to present her claim for contribution against Joe Mundy under the above amended cross-complaint. A jury returned a verdict against Mrs. Rudolph in the amount of $30,000, and made no allowance to Mrs. Rudolph on her claim against Joe Mundy for the shock which she is alleged to have received.

The above mentioned three suits were consolidated for the purpose of trial.

Appellant, Mrs. Rudolph, makes two principal contentions on this appeal, viz.: (a) The judgment of the lower court should be reversed because she was not allowed to prosecute her claim against Joe Mundy for contribution, and (b) The judgments rendered against her are excessive.

(a) In support of her right to present her claim against Joe Mundy for contribution in this action, appellant relies on the provisions of Act 315 of 1941. Section 7(1) of said act provides that when a defendant, such as Mrs. Rudolph here, desires to have contribution against a joint tort-feasor who is not a party to the suit he must have a summons issued for and served on the joint tort-feasor. It is admitted here that no such summons was issued or served on Joe Mundy after Mrs. Rudolph filed her cross-complaint in Suit No. 2418 against Joe Mundy.

It is contended however by appellant that under the facts of this case it was not necessary to have a summons issued and served on Joe Mundy. The reason for this, says appellant, is that, as stated above, Mrs. Rudolph had theretofore filed a cross-complaint against Joe Mundy to recover injuries for the shock she received and had caused a summons to be issued and served on Joe Mundy, and Joe Mundy had entered his appearance and filed an answer to that cross-complaint. Therefore, appellant says, since Joe Mundy was already made a party to Suit No. 2418 and had entered his appearance, it was not necessary that service should be again issued against him in connection with the cross-complaint asking for contribution.

We cannot agree that this case must be reversed for the reason above assigned. In the first place, the right of Mrs. Rudolph to have contribution against Joe Mundy in this action under the provisions of said Act 315 is a permissive right and it does not exclude her right to seek contribution in a separate suit if she so desires. We think this interpretation of the Act is clear from the wording of the Act itself. The first sentence in Section 7(1) says that a defendant 'may move * * * for leave' to file a complaint upon a joint tort-feasor not a party to the action in order to effect contribution. The first words in the sentence that follows begin with 'If the motion is granted and the summons and complaint are served * * *' the joint tort-feasor shall make a defense, etc. From this language we conclude that Act 315 meant to give the trial court a certain measure of discretion in allowing or disallowing the kind of procedure appellant seeks here to invoke. The trial court in this instance was invested with that discretion even though it be conceded for the purpose of this opinion that no further service on Joe Mundy was necessary in this case.

Nor can we say that the trial court abused its discretion in refusing to allow Mrs. Rudolph to prosecute her claim in this particular case for contribution against Joe Mundy. As noted above, three separate suits had been consolidated for trial, and the question which appellant raises here was not brought to the attention of the trial court until the attorneys were making their opening statements in the cases. Since the trials were already under way and since appellant had not previously sought the court's permission to have Joe Mundy made a party to case No. 2418, we feel that the court was justified in ruling as it did, and especially so since appellant lost no substantive right by the adverse ruling.

Subsection (1) of Section 7 of said Act 315 is distinguished from subsection (3) of said Section as it applies to this case. Under the latter subsection, if Joe Mundy had been made a party defendant by Mrs. Cassidy, then Mrs. Rudolph would have been compelled to prosecute her claim for contribution in Suit No. 2418 or she would have lost it.

We cannot agree with appellees' contention that, as a matter of law, Mrs. Rudolph's right to ask for contribution against Joe Mundy was cut off by the...