Safeway Stores, Inc. v. City of Raytown

Decision Date11 May 1982
Docket NumberNo. 63152,63152
Citation633 S.W.2d 727
PartiesSAFEWAY STORES, INC., Appellant, v. CITY OF RAYTOWN, et al., Respondents.
CourtMissouri Supreme Court

Paul H. Niewald, John L. Hayob, Kansas City, for appellant.

Darwin E. Johnson, William T. Session, Jeffrey T. O'Connor, Kansas City, for respondents.


Plaintiff, Safeway Stores, Inc., appeals from final judgment of dismissal with prejudice of its cause of action for apportionment of liability between it and three defendant-respondents, City of Raytown, Fulton Industries, Inc., and Contractor's Supply Company. The liability of Safeway arises from a judgment rendered against it in a wrongful death action in United States District Court, Western District of Missouri, March 24, 1976. Esler v. Safeway Stores, Inc., 585 F.2d 903 (8th Cir. 1978). Safeway did not implead respondents in the original suit for purposes of subjecting them to a joint judgment as concurrent tortfeasors. The trial court adopted the respondents' position that "absent a prior finding of actionable negligence by the original trier of fact, plaintiff is not now entitled to bring a separate and independent action for indemnity against non-parties to the original suit." The trial court's memorandum opinion observed that limiting claims for contribution to the original action through the use of cross-claims, counterclaims or third party practice was consistent with the requirement of due process rights accorded defendants to present their defense "in good time and without lapse of many years." This Court granted transfer of Safeway's appeal upon recommendation of and prior to opinion by the Missouri Court of Appeals, Western District. The issues are whether a defendant against whom a judgment of tort liability is rendered has an independent cause of action for apportionment of liability against concurrent tortfeasors 1; and if so, whether such an action violates the respondents' due process rights. U.S.Const.amend. XIV, § 1; Mo.Const. art. I, § 10. Reversed and remanded.

Safeway's petition alleges: that on March 24, 1976, John Esler was working pursuant to an agreement with the City of Raytown, Mo.; that his work involved the use of a "JLG Lift" leased to Esler by Contractors Supply and manufactured by Fulton Industries, Inc.; that Esler was killed when a Safeway store vehicle collided with said lift; 2 and that subsequently Esler's widow obtained in the United States District Court, Western District of Missouri, a verdict of liability for negligence against Safeway in thge amount of $152,000. All of the foregoing occurred prior to the decision of Missouri Pacific Railroad Co. v. Whitehead & Kales Co., 566 S.W.2d 466 (Mo. banc 1978). Safeway filed this action on April 9, 1979, seeking the apportionment of liability based on relative fault among the City of Raytown, Contractor's Supply Co., Fulton Industries, Inc., and itself. Respondents' separate motions to dismiss Safeway's petition assert: that no separate substantive or procedural right to indemnity or contribution 3 existed prior to the decision in Whitehead & Kales and no such right was created by that decision; and that by failure to file a third party petition against defendants in the "original action" brought by Esler's widow, Safeway "has waived its right to maintain a separate indemnity action." Defendant Fulton Industries also asserted that its right to due process of law would be violated if Safeway's petition is permitted to stand. The trial court granted these motions.

Appellant Safeway contends the trial court erred in its interpretation of the Whitehead & Kales decision by ruling that no separate cause of action for apportionment of damages exist; that such a ruling makes the third party practice procedure mandatory rather than permissive. Respondents contend that Whitehead & Kales "did not create any substantive or procedural right entitling appellant to seek contribution ... absent, as a predicate, a finding of actionable negligence by the trier of fact in favor of the original plaintiff (the injured party) against Respondents.... that no procedural mechanisms for establishing a finding of actionable negligence outside of those acknowledged in Mo.Pac., exist ..."; and therefore, the "sole effect" of the decision "was to permit the jury in the original action by the injured party (though perhaps by a bifurcated proceeding), to make a relative determination of fault between the alleged joint tortfeasors."


Respondents view of Whitehead & Kales is too narrow. In that case the defendant, Missouri Pacific, did attempt to implead Whitehead & Kales by third party petition (Rule 52.11; § 507.080, RSMo 1978) in the original suit. The attempt was rejected by the trial court, the suit was continued to final judgment, and defendant appealed. Therefore, when decided by this Court, the issue was whether a defendant could bring a third party into the original suit through the use of Rule 52.11, by alleging that the third party is either "in whole or in part liable to the defendant for the plaintiff's claim" against said defendant. Rule 52.11(a); Whitehead & Kales, 566 S.W.2d at 468. The language in Whitehead & Kales indicating that the right to apportionment can be exercised by way of cross claim or third party practice is in answer to the question there presented; whether the entire matter may be decided in one suit, by one jury. 4 The case, however, does not limit the right to contribution to the procedural vehicles there mentioned. To the contrary, the decision necessarily recognized the existence of a substantive right to contribution before it determined that Rule 52.11 afforded an appropriate method of exercising it.

In Whitehead & Kales this Court held: "A principled right to indemnity should rest on relative responsibility and should be determined by the facts as applied to that issue."; that if a "third party defendant did certain acts or omissions and was thereby negligent and that the same directly contributed to cause the injuries and damage to the original plaintiff, then the jury should award the third party plaintiff such proportion of the total sum paid by it to plaintiff as corresponds to the degree of fault of the third party defendant. The two concurrent tortfeasors should be treated according to their respective fault or responsibility." Id. at 472. In recognizing that the "essential thing is the attempt to be fair as between persons subjected to a common legal liability", this decision abrogated the former common law rule that "there is no right to indemnity or contribution between concurrent or joint tortfeasors in pari delicto, except as provided by statute." Id. at 469, 472 (citations omitted). Under Whitehead & Kales the principle of contribution based on relative fault replaced the "primary-secondary" and "active-passive" indemnity distinctions because the latter yielded the illogical result of finding one of two concurrent tortfeasors totally liable although both were to some degree responsible for the injury caused. 5 Id. at 470-74. The present rule in Missouri is what it was prior to misapplication of the no-contribution rule. Id. at 469; Note, Contribution Between Persons Jointly Charged for Negligence-Merriweather v. Nixon, 12 Harv.L.Rev. 176 (1898). The right to contribution is based upon the "principle of fairness" and was historically a remedy afforded in equity, although subsequently enforced at law under a variety of theories such as assumpsit and quasi contract to rectify unjust enrichment. Whitehead & Kales, 566 S.W.2d at 469. See generally, Note, supra, 12 Harv.L.Rev. at 178; R. Leflar, Contribution and Indemnity Between Tortfeasors, 81 U.Pa.L.Rev. 130 (1932); 18 C.J.S., Contribution § 2, p. 3.

It is true that the decision in Whitehead & Kales recognized that the right to contribution "presupposes actionable negligence". Id. at 468. This does not mean, however, as respondents suggest, that a joint judgment of liability against two defendants is a necessary prerequisite to an action for contribution. The defendant against whom contribution is sought must be a tortfeasor, originally liable to the plaintiff-injured party. W. Prosser, Law of Torts, § 50, at 309 (4th ed. 1971). As explained in the Restatement of Torts, Second, § 896A(1) "When two or more persons become liable in tort to the same person for the same harm, there is a right of contribution among them, even though judgment has not been recovered against all or any of them." It is joint liability and not joint judgment which is prerequisite to contribution. Whitehead & Kales, 566 S.W.2d at 469. See, Stephenson v. McClure, 606 S.W.2d 208, 213 (Mo.App.1980); Martinez v. Lankster, 595 S.W.2d 316 (Mo.App.1980).

Section 537.060, RSMo 1978 permits contribution between tortfeasors who are joint judgment debtors. Prior to Whitehead & Kales, the statute was the only authorization for contribution because of the common law bar, Crouch v. Tourtelot, 350 S.W.2d 799 (Mo. banc 1961); State ex rel McClure v. Dinwiddie, 358 Mo. 15, 213 S.W.2d 127 (banc 1948); and the benefit of the statutory right was unduly limited because the joint judgment prerequisite for contribution could be satisfied only if both defendants were sued by the plaintiff. A defendant could not join a third party defendant unless the plaintiff agreed to amend his petition to include the second defendant. This was because the original defendant's third party petition could not assert a contribution right without joint judgment and this required plaintiff to sue both defendants. State ex rel. McClure v. Dinwiddie, supra. In addition to creating a common law right to contribution (as demonstrated above) Whitehead & Kales notes "that § 537.060 is silent as to contribution between defendants other than judgment defendants", and that "(t)o limit any apportionment of damages between tortfeasors to those whom the plaintiff has...

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