Sledge v. Town & Country Tire Centers, Inc.

• Decision Date: 10 May 1983
• Docket Number: No. 45181,45181
• Citation: 654 S.W.2d 176
• Court: Missouri Court of Appeals
• Parties: Keena SLEDGE, Plaintiff-Respondent, v. TOWN & COUNTRY TIRE CENTERS, INC., Defendant-Appellant.

Page 176

654 S.W.2d 176

Keena SLEDGE, Plaintiff-Respondent, v. TOWN & COUNTRY TIRE CENTERS, INC., Defendant-Appellant.

No. 45181.

Missouri Court of Appeals,

Eastern District,

Division Four.

May 10, 1983.

Motion for Rehearing and/or Transfer

Denied July 6, 1983.

Anthony F. Vaiana, Clayton, for defendant-appellant.

Leonard P. Cervantes, St. Louis, for plaintiff-respondent.

SMITH, Judge.

Defendant, Town and Country Tire Centers, Inc., appeals from a judgment against it for personal injuries sustained by plaintiff as a result of defendant's failure to properly lubricate the rear axle bearings of an automobile in which plaintiff was riding. The jury assessed actual damages of $200,000 and punitive damages of $125,000 which the trial court reduced by remittitur to $150,000 and $75,000 respectively. The plaintiff has also appealed the remittiturs.

The evidence supported a conclusion that defendant, in replacing the rear axle bearings of a vehicle owned by Edward Johnson and driven principally by his son Michael, failed to pack at least the right bearings with grease. The improper lubrication of the bearings, caused excessive heating of the axle which in turn resulted in the axle breaking and the automobile leaving the highway and crashing into a signpost. Plaintiff, returning to college in Dallas, Texas, was a passenger in the vehicle driven by Michael Johnson. The accident occurred near Claremore, Oklahoma.

Defendant's first two contentions of error concern venue so some recitation of the procedural history of the case is required. Plaintiff was a resident of St. Louis City. Michael Johnson and Town and Country were residents of St. Louis County. On December 15, 1978, plaintiff filed her petition in the City of St. Louis against Michael Johnson only. The Sheriff of St. Louis returned the summons non est on January 22, 1979. On June 28, plaintiff filed her first amended petition against Johnson and defendant Town and Country. ¹ Service on defendant was made in St. Louis County on July 11. Instructions were given to serve Johnson at a residence in the City. The alias summons on Johnson was returned non est on August 23. Pluries summons on Johnson was served September 21 by delivery to him in the Sheriff's office in the City. On October 10, defendant's motion to dismiss for improper venue was granted without prejudice. On November 27, Johnson filed his third-party petition against defendant seeking apportionment and indemnity pursuant to Missouri Pacific Railroad Co. v. Whitehead & Kales Co., 566 S.W.2d 466 (Mo. banc 1978). In December, the third-party petition and summons were served on defendant in St. Louis County and in January 1980, defendant filed its answer to the third-party petition. In February, plaintiff filed her second amended petition against Johnson and defendant. This was served on defendant in St. Louis County in May and promptly invoked a motion to dismiss for improper venue. That motion was denied. Denial of the last mentioned motion forms the basis for defendant's first claim of error.

When suit is brought against a corporation and an individual, Sec. 508.010 RSMo. 1978, the general venue statute rather than Sec. 508.040, the corporation venue statute, is applicable. State ex rel. Turnbough v. Gaertner, 589 S.W.2d 290 (Mo. banc 1979); State ex rel. Allen v. Barker 581 S.W.2d 818 (Mo. banc 1979) [2-7]. Sec. 508.010 provides in applicable part:

"Suits instituted by summons shall, except as otherwise provided by law, be brought:

(1) When the defendant is a resident of the state, either in the county within which the defendant resides, or in the county within which the plaintiff resides, and the defendant may be found;

(2) When there are several defendants, and they reside in different counties, the suit may be brought in any such county; .... ²

In State ex rel. Bartlett v. McQueen, 361 Mo. 1029, 238 S.W.2d 393 (Mo. banc 1951), the court held that where the suit is brought in the county of plaintiff's residence against more than one defendant residing in a different county venue as to each defendant is proper only if each is "found" in the county of plaintiff's residence. In State ex rel. Kissinger v. Allison, 328 S.W.2d 952 (Mo.App.1959), the court upheld venue as to any defendant "found" in plaintiff's county even though other defendants were not "found" therein making venue as to them improper pursuant to McQueen, supra. From this we observe that venue as to Johnson was proper and venue of plaintiff's first amended petition against defendant was improper. Defendant's first motion to dismiss for improper venue was properly granted.

We turn then to the effect of Johnson's third-party petition. In State ex rel. Garrison Wagner Co. v. Schaaf, 528 S.W.2d 438 (Mo. banc 1975) the court held "... that in third-party practice it need not be shown that venue requirements have been independently complied with but that such may rest on venue properly shown in the original case ...." Venue over defendant on Johnson's third-party claim was proper under Garrison Wagner. Defendant does not contend otherwise.

We now reach defendant's contention that plaintiff's second and third amended petitions against defendant are not ancillary as was the third-party claim in Garrison Wagner and that case does not support venue as to defendant on plaintiff's claim against defendant. Defendant relies upon State ex rel. Turnbough v. Gaertner, supra, which held that joinder of two or more separate causes of action pursuant to Rule 52.05(a) does not create venue as to defendants for whom venue would not have existed without joinder. This decision was based upon Rule 51.01 which provides that the rules of civil procedure shall not be construed to extend or limit the jurisdiction of the courts or the venue of civil actions. Defendant contends that the same rationale applies to Rule 52.11 allowing plaintiff to assert a claim against a third-party defendant.

We find neither Garrison Wagner nor Turnbough directly decisive of the matter before us nor have we found any case in this state which is. ³ Garrison Wagner was based in part on federal cases holding that the action by the third-party plaintiff against the third-party defendant for indemnity was "ancillary" to the main action between plaintiff and defendant-third-party plaintiff. In Garrison Wagner no attempt had been made by plaintiff to assert a direct action against the third-party defendant, as is the case here. In Turnbough no third-party action was involved. Plaintiff's action was directly against the non-resident defendant for injuries sustained in an accident separate and distinct from the accident involving the other defendant. Joinder was permissible because the second accident aggravated injuries sustained in the first. See Hager v. McGlynn, 518 S.W.2d 173 (Mo.App.1974). The Turnbough court referred to Garrison Wagner in a footnote and characterized that opinion as holding that third-party proceedings were "ancillary" to the principal action. Garrison Wagner was held not to require a ruling in favor of plaintiff because Count II in Turnbough was not ancillary to Count I. The case before us combines features of both Garrison Wagner and Turnbough. Like the former it arises from third-party proceedings; like the latter it involves two counts asserting separate and independent acts of negligence. Unlike Turnbough, however, the separate claims of negligence purportedly coalesced into a single accident resulting in a single injury.

In Dan Ficken Pools, Inc. v. Flynn, 592 S.W.2d 213 (Mo.App.1979) , we stated that the purpose of the venue statute is to provide a convenient, logical and orderly forum for litigation. With that as our guide, we are unable to conclude that the venue here was improper. The question of defendant's negligence was properly before the court on Johnson's third-party claim. Trial of all issues in the same forum, including plaintiff's claim against defendant, avoids multiplicity and provides an orderly and logical forum for the litigation. It imposes no greater inconvenience upon defendant to try its liability to both plaintiff and Johnson in that forum than to try its liability to Johnson alone. We must concede that plaintiff's claim against defendant is not "ancillary" to the claim against Johnson as that term is commonly used. But we are not convinced that "ancillary" was utilized by the court in Garrison Wagner and Turnbough solely in the sense of "secondary." We think rather it was utilized to identify the situations within the purpose of third-party practice, namely:

"... to avoid two actions which should be tried together to save the time and cost of a reduplication of evidence to obtain consistent results from identical or similar evidence and to accomplish ultimate justice for all concerned with economy of litigation and without prejudice to the rights of another." State ex rel. Laclede Gas Company v. Godfrey, 468 S.W.2d 693 (Mo.App.1971) , quoted in and approved in State ex rel. Garrison Wagner Co. v. Schaaf, supra, .

The situation in Turnbough presents an entirely different consideration. There the court was involved with permissive joinder and the induction of the non-resident into the suit was solely for the convenience of the plaintiff. The non-resident defendant's presence was not required to determine the liability of the other defendant nor to adjudicate that party's rights vis-a-vis the non-resident. See, State ex rel. Retherford v. Corcoran, 643 S.W.2d 844 (Mo.App.1982). While certain judicial economy would be involved, it could only be accomplished through an inconvenience to the non-resident defendant. Rule 51.01 specifically prevents construction of the rules to eliminate the statutorily established "convenience" of venue. Garrison Wagner establishes that the "ancillary" venue of third-party practice does not run afoul of the venue statutes and consequently Rule 51.01 does not apply here.

We are cognizant that...