Simon v. Kansas City Rug Co.

• Decision Date: 14 December 1970
• Docket Number: No. 1,SERV-OPP,No. 55021,55021,1
• Citation: 460 S.W.2d 596
• Parties: Sanford SIMON et al., Plaintiffs-Respondents, v. KANSAS CITY RUG COMPANY, Inc., et al., Defendants-Third Party Plaintiffs-Appellants, v. SERVICEMASTERINTERNATIONAL CORPORATION, a Corp., Third Party Defendant-Respondent
• Court: Missouri Supreme Court

Page 596

460 S.W.2d 596

Sanford SIMON et al., Plaintiffs-Respondents, v. KANSAS CITY RUG COMPANY, Inc., et al., Defendants-Third

Party Plaintiffs-Appellants, v. SERVICEMASTER SERV-OPP INTERNATIONAL CORPORATION, a Corp.,

Third Party Defendant-Respondent.

No. 55021.

Supreme Court of Missouri, Division No. 1.

Dec. 14, 1970.

William R. Fish, Knipmeyer, McCann & Millett, Kansas City, for appellants.

Roy A. Larson, Jr., Sprinkle, Carter, Larson & Hanna, Kansas City, for respondent-third party defendant, Service Master Serv-Opp International Corp.

HOUSER, Commissioner.

Appeal from an order sustaining a motion to dismiss a third party petition. The order was designated a final order for the purpose of appeal. See Civil Rule 82.06, V.A.M.R.

Plaintiffs filed suit in the Circuit Court of Jackson County, Missouri on December 6, 1967, seeking $300,000 damages for personal injuries and property damage alleged to have been sustained by them on December 6, 1965 as a result of the negligence of Kansas City Rug Company, Inc., a Missouri corporation, employed by plaintiffs to clean a rug in their home in Prairie Village, Kansas. Count I of the petition charged rug company with negligence, carelessness and recklessness in the use of its equipment, and in the use of dangerous materials and substances in coming upon the premises to clean the rug, in that it (1) used unsafe materials, substances and equipment; (2) failed to warn and notify plaintiffs of said unsafe materials, substances and equipment and as to its use; (3) failed to ventilate properly, and (4) knew or should have known they were using unsafe materials, substances and equipment that were likely to cause damage. Alternatively, Count II alleged that in attempting to clean the carpet rug company used various dangerous materials and substances to plaintiffs' damage; that rug company was in sole and exclusive control of the materials, substances and equipment used, and had superior knowledge or means of information as to the cause of the casualty, which ordinarily would not have happened if those in control had exercised due care; and that the casualty was proximately caused by rug company's negligence. Count III was based on breach of contract. Count IV was based upon misrepresentation. Additional counts for loss of services were alleged.

Rug Company filed a general denial of each paragraph of each count of plaintiffs' amended petition and, seeking full indemnity, on December 19, 1968 filed a third party petition in three counts against its supplier, Servicemaster Serv-Opp International Corporation, an Illinois corporation, hereinafter 'Serv-Opp,' praying for the amount of any judgment which might be rendered against rug company and all expenses, costs and attorneys' fees incurred in the defense of the action for damages filed by plaintiffs against rug company. In Count I of its third party petition rug company denied negligence on its part, affirmed its lack of knowledge of the exact nature of the chemicals and compounds used and alleged that they and the equipment used were furnished to rug company by Serv-Opp; alleged that rug company at no time had any knowledge that the chemicals, etc. were likely to be injurious to ultimate users or consumers, and that if plaintiffs prevailed against rug company the latter's liability would be constructive only and because of the negligence of Serv-Opp in (1) failing to provide safe chemicals, etc.; (2) failing to warn that the chemicals, etc. were unsafe and liable to cause injury to the ultimate users and consumers; (3) failing to warn of the necessity of ventilating premises after use of the chemicals to avoid injury, and (4) negligently furnishing chemicals, etc. which were unsafe and injurious to the health of the ultimate user and consumer when Serv-Opp knew or should have known that they were unsafe and liable to cause injury. Count II was based upon breach of an express warranty. Count III was based upon breach of an implied warranty of fitness.

Service of process on Serv-Opp was obtained through the secretary of state under the provisions of § 351.633, RSMo. L. 1965, p. 559, based upon allegations in the third party petition that Serv-Opp committed negligent and tortious acts in whole or in part in Missouri against rug company, a resident of Missouri. Serv-Opp filed a motion to quash service of process on the ground that Serv-Opp did not commit a tort in Missouri; that this is an indemnity action based upon implied contract and operation of law and therefore does not come within the purview of § 351.633. This motion was overruled.

Thereafter Serv-Opp filed a motion to dismiss the third party petition on the ground that rug company's claim against Serv-Opp was barred by the 2-year Kansas statute of limitations. This motion was sustained and rug company has appealed from the order of dismissal.

We have jurisdiction. At the time the appeal was granted plaintiffs Simon, et al. were making a bona fide claim to $300,000 damages in their action against rug company. This fixes the amount in dispute for jurisdictional purposes. Pierce v. Ozark Border Electric Cooperative, Mo.Sup., 378 S.W.2d 504; Crouch v. Tourtelot, Mo.Sup., 350 S.W.2d 799, 803(5).

Preliminary to a consideration of the merits of the appeal we notice and rule Serv-Opp's point that the court erred in overruling its motion to quash service of process. Third party defendant Serv-Opp, a foreign corporation, urges that jurisdiction was not obtained over it; that § 351.633, by which the secretary of state is deemed to have been appointed as the agent of a foreign corporation to accept service of process, applies only in actions arising from or growing out of a tort...