Sanders v. Marks

• Decision Date: 31 May 1933
• Citation: 60 S.W.2d 692,228 Mo.App. 1079
• Parties: LENA SANDERS, APPELLANT, v. MARY MARKS AND WILLIAM MARKS, DEFENDANTS, AND HERMAN KIMMELL, RESPONDENT
• Court: Missouri Court of Appeals

60 S.W.2d 692

228 Mo.App. 1079

LENA SANDERS, APPELLANT, v. MARY MARKS AND WILLIAM MARKS, DEFENDANTS, AND HERMAN KIMMELL, RESPONDENT

Court of Appeals of Missouri, St. Louis

May 31, 1933

Appeal from the Circuit Court of St. Louis County.--Hon. Robert W McElhinney, Judge.

REVERSED AND REMANDED.

Simon Fisher and Robert L. Aronson for appellant.

(1) Every tort-feasor whose wrongful act concurs in inflicting injury is jointly liable for the resulting damage. Shafir v. Sieben (Mo.), 233 S.W. 419, 17 A. L. R. 637. (2) Every person who has a cause of action against several persons, and is entitled to but one satisfaction, may bring suit thereon jointly against all. R. S. 1929, sec. 703; Nokol Co. v. Becker, 318 Mo. 292, 300 S.W. 1108; Mitchell v. Brown, 190 S.W. 354; Hutchinson v Richmond Safety Gate Co., 247 Mo. 71, 150 S.W. 52. (3) When there are several defendants in a suit, and they reside in different counties, the suit may be brought in any county where one of the defendants lives. R. S. 1929, sec. 720; Chorn v. Zollinger (Mo. App.), 128 S.W. 213; Gray v. Grand River Coal & Coke Co. (Mo. App.), 162 S.W. 277; January v. Rice, 33 Mo. 409. (4) Plaintiff was entitled to a jury trial on the question of the liability of the resident defendants, as a question of fact. R. S 1929, sec. 948. (5) The taking of depositions by respondent's counsel, and acts in connection therewith constituted a general appearance in the cause. 4 C. J. 1334; Bankers' Life Assoc. v. Shelton, 84 Mo.App. 634; State ex rel. Compagnie Generale Transatlantique (Mo.), 274 S.W. 758; Bates & Wright v. Scott Bros., 26 Mo.App. 429. (6) The so-called plea in abatement was not a proper pleading, and was not sufficient in law to authorize the ruling of the court. R. S. 1929, sec. 768; 49 C. J. 230; Weisheyer v. Weisheyer, 14 S.W.2d 486; Curfman v. Fidelity & Deposit Co., 152 S.W. 126; and cases above.

Cobbs & Logan for respondent.

(1) Respondent properly raised the question of jurisdiction of the Circuit Court of St. Louis County by a plea in abatement. The alleged fraud, bad faith and collusion of plaintiff, consisting of matters dehors the record, could only be raised by a plea in abatement. Estate of Marsh v. Bast, 41 Mo. 493, l. c. 496; Byler v. Jones, 79 Mo. 261, l. c. 263; Wicecarver v. Insurance Co., 137 Mo.App. 247, l. c. 254; State ex rel. v. Grimm, 239 Mo. 135, l. c. 173. The pleading filed on behalf of the respondent is proper. Byler v. Jones, 79 Mo. 261, l. c. 263; Wicecarver v. Insurance Co., 137 Mo.App. 247, l. c. 254; Coombs Commission Co. v. Block, 130 Mo. 668, l. c. 677; State ex rel. v. Grimm, 239 Mo. 135, l. c. 165; State ex rel. Tighe v. Brown, 23 S.W.2d 1092, l. c. 1093. (2) The lower court properly exercised its judicial function in passing upon respondent Kimmell's plea in abatement. It was the duty of the St. Louis County Circuit Court to determine its own jurisdiction in the case at bar. Christian v. Williams, 35 Mo.App. 297, l. c. 307; Byler v. Jones, 79 Mo. 261, l. c. 263; Coombs Commission Co. v. Block, 130 Mo. 668, l. c. 677; State ex rel. v. Mills, 231 Mo. 493, l. c. 500, 501; State ex rel. v. Shields, 237 Mo. 329, l. c. 336; State ex rel. v. Gantt, 203 S.W. 964, l. c. 969; Hockaday v. Gilham, 226 S.W. 991, l. c. 993. (3) It was the duty of the Circuit Court of St. Louis County to sustain respondent Kimmell's plea in abatement, if convinced of the truth of the allegations contained therein. Estate of Marsh v. Bast, 41 Mo. 493, l. c. 496; Capital City Bank v. Knox, 47 Mo. 333, l. c. 335, 336; Byler v. Jones, 79 Mo. 261, l. c. 263; Rosencranz v. Swofford Bros. D. G. Co., 175 Mo. 518, l. c. 538; State ex rel. v. Bradley, 193 Mo. 33, l. c. 42, 45; Groce v. Skelton, 230 S.W. 329, l. c. 330. (4) The finding of the Circuit Court of the County of St. Louis on the question of its jurisdiction over the respondent Kimmell is conclusive on appeal unless clearly against the weight of the evidence. Haines v. Jeffrey Mfg. Co., 31 S.W.2d 269, l. c. 271; Inzerillo v. C. B. & Q. R. R. Co., 35 S.W.2d 44, l. c. 49. (5) The taking of depositions by respondent did not constitute in the case at bar a general appearance or waiver of respondent's right to raise the jurisdictional question of venue. Roberts et al. v. American National Assurance Co., 212 S.W. 390.

McCULLEN, J. Becker, P. J., and Kane, J., concur.

OPINION

McCULLEN, J.

This is an appeal from an order of the Circuit Court of St. Louis County, sustaining the plea in abatement of defendant Herman Kimmell (respondent), and dismissing the cause as to said defendant.

Lena Sanders, plaintiff below (appellant here) filed a petition in the Circuit Court of St. Louis County, on April 16, 1931, naming her daughter, Mary Marks; her son-in-law, William Marks, and the respondent, Herman Kimmell, as defendants. The petition alleged that defendants Mary Marks and William Marks, were residents of St. Louis County, Missouri, and that the defendant Herman Kimmell was a resident of Franklin County, Missouri.

Plaintiff alleged that she was a passenger in an automobile while it was being driven by defendant Mary Marks as the agent and servant of William Marks; that defendant Herman Kimmell, while driving his automobile westwardly on Page Boulevard, in the City of St. Louis, suddenly brought the same to an abrupt stop near the intersection of Page Boulevard and Newstead Avenue, thereby causing the automobile of the defendants Marks, which was being driven westwardly on Page Boulevard immediately to the rear of defendant Kimmell's automobile, to collide therewith.

The grounds of negligence charged against defendants Mary Marks and William Marks, which, it was alleged, contributed and concurred in causing the collision and plaintiff's injuries, were: (1) Excessive speed; (2) failure to keep a careful lookout for other vehicles on the highway; (3) negligently operating their automobile in too close proximity to the automobile of the defendant Kimmell; and (4) violation of the humanitarian rule.

The grounds of negligence charged against defendant Herman Kimmell, which, it was alleged, contributed and concurred in causing the collision and plaintiff's injuries, were: Excessive speed; failure to give a signal or warning to indicate that he was bringing his automobile to a stop, and negligently bringing his automobile to a sudden stop when he knew, or, by the exercise of the highest degree of care should have known that a collision was likely to result from such sudden stopping.

Writs of summons were issued for the two St. Louis County defendants, and a summons was also issued and delivered to the Sheriff of Franklin County, Missouri, for the defendant Kimmell. On May 4, 1931, the defendants Mary Marks and William Marks, by their counsel, filed separate answers, each answer being a general denial. On May 6, 1931, the defendant Herman Kimmell filed a plea in abatement, appearing solely for that purpose, in which plea the court was asked to dismiss plaintiff's petition as to said defendant Herman Kimmell, for the reason that the court had no jurisdiction over him. The grounds of this motion, or plea were stated as follows:

"This defendant states that the defendants Mary Marks and William Marks are joined as codefendants with this defendant for the sole purpose of attempting to confer upon this court jurisdiction over the defendant Herman Kimmell.

"This defendant states that Mary Marks is the daughter of Lena Sanders, the plaintiff; that William Marks is the son-in-law of Lena Sanders, the plaintiff; that this cause of action is not prosecuted by the plaintiff against her daughter and son-in-law in good faith, and said cause of action is purely colorable and is brought for the sole purpose of conferring a false and fraudulent jurisdiction on this court.

"This defendant further states that the plaintiff has heretofore testified in depositions taken by this defendant, when this defendant discovered for the first time that the plaintiff does not believe any of the alleged grounds of negligence alleged in her petition against the said Mary Marks and William Marks; that all of the alleged grounds of negligence in said petition are negatived by the said Lena Sanders, plaintiff.

"Defendant further states that said Lena Sanders neither expects nor hopes nor anticipates obtaining a judgment against her daughter and son-in-law in this cause, and that action as to them is not in good faith, as above stated."

On May 7, 1931, defendant Herman Kimmell filed the depositions of plaintiff, and of defendant Mary Marks. The depositions showed they were taken on May 2, 1931, on the part of defendant Herman Kimmell.

The record shows that on the 23rd of May, 1931, defendant Herman Kimmell's plea in abatement was argued before the court, the depositions theretofore filed were offered in support thereof, and the plea was taken as submitted by the court. On October 19, 1931, the court sustained the plea in abatement and the cause was ordered dismissed as to defendant Herman Kimmell.

Appellant complains that the court's action in sustaining defendant Kimmell's plea in abatement was erroneous. Several reasons are assigned for this contention.

We are of the opinion that there is no substantial evidence in the record to support the action of the court in sustaining the plea in abatement. It is, therefore, unnecessary to pass upon the other questions presented by appellant. We will confine our discussion to the evidence which was presented to support the charges in the plea.

The court based its action on the testimony of plaintiff and of defendant Mary Marks, as shown in the depositions taken on behalf of defendant Kimmell.

It is admitted that plaintiff is the mother of defendant Mary Marks, and mother-in-law of defendant ...