Sperry Corp. v. Corcoran

• Decision Date: 20 September 1983
• Docket Number: Nos. 64672,64694 and 64669,s. 64672
• Citation: 657 S.W.2d 619
• Parties: SPERRY CORPORATION, Relator, v. The Honorable James S. CORCORAN, Judge, Circuit Court, St. Louis City, Respondent. STATE ex rel. B.G. PRATER, et al., Relator, v. The Honorable James S. CORCORAN, Judge, Circuit Court, St. Louis City, Respondent. LESTER E. COX MEDICAL CENTER, INC., Relator, v. The Honorable James S. CORCORAN, Judge, Circuit Court, St. Louis City, Respondent.
• Court: Missouri Supreme Court

Page 619

657 S.W.2d 619

SPERRY CORPORATION, Relator, v. The Honorable James S. CORCORAN, Judge, Circuit Court, St.

Louis City, Respondent.

STATE ex rel. B.G. PRATER, et al., Relator, v. The Honorable James S. CORCORAN, Judge, Circuit Court, St.

Louis City, Respondent.

LESTER E. COX MEDICAL CENTER, INC., Relator, v. The Honorable James S. CORCORAN, Judge, Circuit Court, St.

Louis City, Respondent.

Nos. 64672, 64694 and 64669.

Supreme Court of Missouri En Banc.

Sept. 20, 1983.

Rehearing Denied Oct. 18, 1983.

Eugene K. Buckley, St. Louis, Robert W. Freeman, Robert G. Ingold, Springfield, Ronald E. Fox, Richard L. Prebil, St. Louis, John K. Hulston, Springfield, for relators.

Leonard P. Cervantes, Stephen J. Jianakoplos, St. Louis, for respondent.

DONNELLY, Judge.

This is prohibition.

On August 31, 1980, John Reynolds suffered an eye injury in Barry County, Missouri, while working on a haybine mower conditioner alleged to have been manufactured by Sperry. He was taken to Springfield, Missouri, where he was treated by B.G. Prater, M.D., of E.E.N.T. Clinic, at Lester E. Cox Medical Center.

A petition for damages was filed in the Circuit Court of the City of St. Louis. Theories of strict liability, negligence and breach of warranty were asserted against Sperry. Negligent treatment was asserted against Prater, E.E.N.T. and Cox.

Plaintiffs are residents of Barry County. Sperry is a foreign corporation with a registered agent, C.T. Corporation, in the City of St. Louis. Sperry has an office for the transaction of its usual and customary business in St. Louis County. We were informed on oral argument that Sperry has an office for the transaction of its usual and customary business in Greene County. Prater is a resident of Greene County. E.E.N.T. and Cox are corporations with offices for the transaction of their usual and customary business in Greene County.

Sperry, Prater, E.E.N.T. and Cox filed motions to dismiss in which they questioned jurisdiction and venue in the Circuit Court of the City of St. Louis. Respondent Judge Corcoran overruled the motions. Relators sought prohibition in the Eastern District of the Court of Appeals. Prohibition was denied. Relators then sought prohibition in this Court. In January 1983, provisional rules in prohibition were ordered to issue. The causes are consolidated for disposition in this opinion. Prohibition will lie where venue is improper and the trial court is without jurisdiction. State ex rel. Allen v. Barker, 581 S.W.2d 818, 824 (Mo. banc 1979).

It is well settled that where three corporations are sued with one individual, as here, venue is determined according to § 508.010, RSMo 1978. State ex rel. Baker v. Goodman, 364 Mo. 1202, 274 S.W.2d 293 (banc 1954). Section 508.010 reads in part as follows:

"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;

* * *

* * *

"(6) In all tort actions the suit may be brought in the county where the cause of action accrued regardless of the residence of the parties, and process therein shall be issued by the court of such county and may be served in any county within the state; * * *."

We make the following observations:

(1) If the assertions of liability made in plaintiffs' petition against the four defendants (Sperry, Prater, E.E.N.T. and Cox) amount to one cause of action, venue in the City of St. Louis is proper because Sperry had a registered agent, C.T. Corporation, in the City of St. Louis. State ex rel. Whiteman v. James, 364 Mo. 589, 265 S.W.2d 298 (banc 1954).

(2) If the assertions of liability made in plaintiffs' petition against the four defendants amount to a cause of action against Sperry and a separate cause of action against Prater, E.E.N.T. and Cox, venue in the City of St. Louis is improper because the joinder of two or more separate causes of action in a single petition does not create venue as to both causes in the City of St. Louis. State ex rel. Turnbough v. Gaertner, 589 S.W.2d 290 (Mo. banc 1979).

(3) Prater, E.E.N.T. and Cox cannot be held liable for the original harm alleged to have been inflicted by Sperry in Barry County, but only for the additional harm alleged to have been caused by their treatment of the eye in Greene County. State ex rel. Baldwin v. Gaertner, 613 S.W.2d 638 (Mo. banc 1981).

(4) Sperry can be held liable for damages arising from the original harm alleged to have been inflicted by Sperry in Barry County and from the subsequent harm alleged to have been caused by the treatment in Greene County. Boehmer v. Boggiano, 412 S.W.2d 103, 108 (Mo.1967).

(5) If recovery is had against Sperry for all damages arising from the original harm and the subsequent harm, Sperry is afforded "a separate cause of action" against Prater, E.E.N.T. and Cox for the proportionate amount of liability based on their relative fault. Safeway Stores, Inc. v. City of Raytown, 633 S.W.2d 727, 732 (Mo. banc 1982).

We reach the following conclusions: this case is controlled by Turnbough, supra, and, because plaintiffs have a separate cause of action against Sperry and a separate cause of action against Prater, E.E.N.T. and Cox, venue in the City of St. Louis is improper.

However, plaintiffs are not without a forum. They may sue Sperry alone in St. Louis County or in Greene County (where Sperry has offices for the transaction of its usual and customary business) for all damages suffered. § 508.040, RSMo 1978. Plaintiffs may not sue Sperry alone in the City of St. Louis. State ex rel. Whaley v. Gaertner, 605 S.W.2d 506 (Mo.App.1980).

The provisional rules in prohibition are made absolute.

RENDLEN, C.J., HIGGINS, GUNN and BILLINGS, JJ., and MORGAN, Senior Judge, concur.

BLACKMAR, J., dissents in separate opinion filed.

WELLIVER, J., not sitting.

BLACKMAR, Judge, dissenting.

I dissent, and would quash our provisional rule in prohibition.

State ex rel. Turnbough v. Gaertner, 589 S.W.2d 290 (Mo. banc 1979), is distinctly different from the cases now before us. The principal opinion asserts that Turnbough is controlling on the basis that the products liability claim against Sperry and the malpractice claims against the medical defendants constitute different "causes of action" for venue purposes. The hoary phrase, "cause of action," is not a precise tool of analysis. The term is not found in the governing statutes or rules. It was used in Turnbough, in which a plaintiff sought to join two defendants who allegedly had negligently caused him damage in separate accidents, six days apart. We held that, under the facts there pleaded, the joinder provisions of Rule 52.05(a), even if applicable (which we did not decide), could not support venue as to a defendant who could not otherwise be sued in the county in which the suit had been filed. Even though the two accidents in Turnbough might have constituted a series of transactions or occurrences, and could be considered to present a common question of fact as to which defendant was responsible for the bulk of plaintiff's injuries so as to permit joinder under Rule 52.05(a), neither defendant had any liability for damage caused by the other.

The situation in the present case, however, is distinguishable. It is well established in our law that Sperry, if liable at all, would be liable for all of plaintiff's ensuing damages, including damages for any medical malpractice. The medical defendants would be liable, if malpractice is established, only for the augmentation of damage resulting from their own negligence. See State ex rel. Normandy Orthopedics v. Crandall, 581 S.W.2d 829 (Mo. banc 1979); Schumacher v. Leslie, 360 Mo. 1238, 232 S.W.2d 913 (1950); Parkell v. Fitzporter, 301 Mo. 217, 256 S.W. 239 (1923); Staehlin v. Hochdoerfer, 235 S.W. 1060 (Mo.1921); State ex rel. Blond v. Stubbs, 485 S.W.2d 152 (Mo.App.1972). The two groups of defendants, then, well may share common liability with respect to any aggravation of the plaintiff's injury through ensuing malpractice. Schumacher, 232 S.W.2d at 917.

That Turnbough is distinctly different from the case now before us is made clear by both the majority and the dissenting opinions in State ex rel. Normandy Orthopedics v. Crandall, 581 S.W.2d 829 (Mo. banc 1979). There the plaintiff suffered a fracture of the femur requiring an open reduction. He settled with the person who caused the initial injury, and then sued the treating physicians for negligence in the open reduction. The court majority, recognizing that the original tort-feasor would be liable for all damage if the injuries were found to have been aggravated through malpractice, went on to hold that there was a question of fact as to whether the release was intended to bar the malpractice action. The minority held that that action would be barred as a matter of law by a release which did not make it clear that damages resulting from malpractice were not released. The majority opinion cited earlier decisions which seemed to support the minority's view and emphasized that they were not overruled except insofar as they precluded consideration of the question of fact which the majority found. The majority clearly held that an unequivocal release of all claims arising out of the initial accident would bar the malpractice claims. Neither the majority nor the minority apparently found it necessary or helpful to discuss the question whether the initial accident and the malpractice claims constituted separate "causes of action."

In the Turnbough situation, by contrast, a settlement by one defendant would have absolutely no effect on any judgment against the other. The jury, or juries, would be instructed that each defenda...