State ex rel. Allen v. Barker

Citation581 S.W.2d 818
Decision Date13 March 1979
Docket NumberNo. 60631,60631
PartiesSTATE ex rel. John M. ALLEN, Relator, v. Honorable Charles V. BARKER, Judge, 30th Judicial Circuit, Respondent.
CourtUnited States State Supreme Court of Missouri

Richard D. Bender, Honecker & Bender, Springfield, for relator.

David L. Smith, Douglas W. Greene, Greene, Cassity, Carnahan, Freeman & Greene, Kenneth H. Reid, Turner, Reid & Duncan, Ted Von Willer, Jr., Woolsey, Fisher, Whiteaker & Stenger, Springfield, for respondent.

SIMEONE, Judge.

This is an original proceeding in prohibition wherein relator, John M. Allen seeks to prohibit the respondent, Judge Charles V. Barker, from dismissing certain counts of a petition filed against several defendants for damages for alleged defamatory statements.

On March 16, 1977, relator, John M. Allen, a resident of Dallas County filed a petition for damages in that county against several defendants. The petition was in four counts. Count I alleged that Salina Broadcasting Company, whose principal place of business was in Greene County, operated radio station KWTO and that on March 17, 1975, the station broadcast that:

"According to a report by State Sanitation, R.R. Willard, . . . a Dallas County farmer is starving his cattle to death; according to Willard, an inspection of a man's farm located about two miles north of Long Lane, in Dallas County, with about 300 head of cattle revealed that this farmer was starving his cattle to death; he said that there was no evidence that the cattle are being fed, that there is no feed troughs, no salt or mineral out, that all grass is gone . . . that there were 25 head already dead; . . ."

The petition alleged that the broadcast was false and accused plaintiff of a criminal offense. 1 The petition prayed for $20,000 actual and $50,000 punitive damages.

Count II sought damages against R-1 School District No. 1 of Dallas County which operated KBFL radio station and its manager and announcer, Wayne Lemons, a resident of Dallas County. Count II alleged that the defendant is a "school district in Dallas County" "operating the KBFL radio station in Buffalo, Missouri." It too alleged that "plaintiff" was starving cattle on his farm and that such defamatory statement was made by Lemons over the radio station which "was heard by plaintiff's friends, neighbors and others in Dallas County and other counties." This count sought damages against the School District and Lemons in the amounts of $20,000 actual and $50,000 punitive.

Count III alleged that on March 17, 1975, defendant Independent Broadcasting Company, whose principal place of business is in Greene County, operates KOLR-TV in Springfield. This count alleged that the station broadcast similar reports that plaintiff was starving his cattle, and that the broadcast was heard by friends, neighbors and others in Greene County and surrounding counties and by the sheriff and prosecutor of Dallas County. Plaintiff sought damages against this defendant in the amount of $50,000 actual and $100,000 punitive.

Count IV was directed against R.R. Willard, the publisher of the report. This count alleged that Willard, a resident of Greene County, published a letter to the effect that Mr. Allen was starving his cattle to death that an inspection revealed that 25 head of cattle were already dead and that there was no evidence that the cattle were being fed. The count also alleged that Willard caused a letter to be published on March 23, 1975, in a Springfield newspaper that many cattle were dying. The petition alleged these letters and publications were false and were read in the area of Greene and other counties. Actual and punitive damages were sought.

Subsequent to the filing of the petition, Salina Broadcasting Company filed its motion to dismiss contending that (1) since Count I is a separate and distinct claim against it, and since the petition alleges claims against the other defendants "which are based on separate and distinct acts by each of them" Salina is not properly joined with the other defendants, (2) since the petition alleges that Salina is a corporation with its principal place of business in Greene County, and since Salina has no office in Dallas County, venue is improper, and (3) the action is barred by the statute of limitations. 2

The defendant School District which operated KBFL radio also filed a motion to dismiss Count II. The School District alleged that (1) the petition failed to state a claim; (2) the action was barred by the statute of limitations; (3) the petition was in tort and that since the District is a political subdivision of the state it is immune from liability by reason of the doctrine of sovereign immunity. 3

Defendant Wayne Lemons filed a motion to dismiss for failure to state a claim and because the action was barred by the statute of limitations.

Independent Broadcasting Company first filed a motion to dismiss for failure to state a claim and then on April 19, 1977 filed a supplementary motion to dismiss for improper venue. Independent contended any claim against it (a corporation) accrued in Greene County and that under § 508.040, venue in Dallas County was improper.

R.R. Willard filed no motion or answer.

Relator filed suggestions in opposition to the motions to dismiss contending (1) that the petition states a claim, (2) venue is proper because as there are several defendants "residing" in different counties, suit may be brought in any such county under § 508.010, (3) joinder of the several defendants was proper under Rule 52.05 which provides that ". . . all persons may be joined in one action as defendants if there is asserted against them jointly, Severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrences or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action"; 4 and (4) the doctrine of sovereign immunity was inapplicable because in operating a radio station the School District is performing a proprietary function rather than a governmental one.

After receiving the motions, suggestions and briefs, the respondent, on January 10, 1978, wrote to all counsel for the various parties. Respondent informed all counsel that he had read the file, briefs and cases and concluded that the pending motions should be ruled as follows:

"1. Motion to dismiss sustained as to School District No. 1 . . . on the ground that defendant had governmental immunity.

"2. That the venue is improper as to Salina Broadcasting Inc. and Independent Broadcasting Co. Salina Broadcasting, Inc., as its first pleading filed a motion to dismiss based on improper venue among other grounds. This motion should be sustained.

Independent Broadcasting, Inc., as its first pleading filed a motion to dismiss on the ground that the petition failed to state a claim against defendant, and without attacking the venue. This may well have constituted a general entry of appearance and waived the venue. Subsequently, this defendant filed an amended motion to dismiss attacking the venue. I am not sure this would have the effect of withdrawing the general appearance. I would like to see what authority each of you have on this question.

"3. The motion to dismiss as to Wayne Lemons should be overruled since the venue is proper and I believe the petition to be sufficient, however, it could perhaps be made better by amendment.

"4. R.R. Willard apparently did not file any motions or pleadings, however, the petition alleges he is a resident of Greene County, Mo., and he was served in Greene County.

The petition does not allege sufficient facts to show that the alleged libel occurred in Dallas County, Mo., and perhaps the venue is improper as to him. If requested plaintiff will be granted leave to amend the petition to set out facts showing the venue to be in Dallas County, if that be the case.

"It is my view that the alleged libel arose out of separate transactions or occurrances, (sic) and that is the reason I feel venue is improper as to part of the defendants."

On February 27, 1978 relator-Allen filed his petition for a writ of prohibition in this court after being denied relief in the court of appeals.

The petition recited the above facts and alleged that respondent indicated his intention to sustain the separate motions of the School District and Salina Broadcasting, Inc. The petition further alleged that "Respondent also threatens to sustain the supplementary motion to dismiss filed by Defendant Independent Broadcasting Company for the same reason as specified in the motion of Salina Broadcasting, Inc. 5 and . . . threatens to dismiss the action as to Defendant R.R. Willard on its own motion, . . . on the ground of improper venue." 6

Relator prayed that respondent be prohibited from dismissing the action as to any defendant or defendants during the pendency of this proceeding.

On March 13, 1978, we issued our preliminary rule in prohibition. Return was filed by respondent and the cause briefed and argued.

In his brief filed here, relator makes three points: (1) the respondent's threatened action to sustain the School District's motion to dismiss on the ground of governmental immunity is in excess of his jurisdiction because the alleged tortious act arose in the exercise of a proprietary rather than a governmental function, (2) the respondent's threatened action to sustain the motions of Salina and Independent on the ground of improper venue is in excess of his jurisdiction because venue is proper in any county where any defendant resides and (3) the respondent's threatened action to dismiss the petition as to Independent Broadcasting and R.R. Willard is in excess of his jurisdiction because these defendants have waived venue in failing to comply with Rule 55.27(f) and (g).

Respondent, on the other hand, contends that the respondent acted properly because (1) the School District, as a political subdivision of the State...

To continue reading

Request your trial
73 cases
  • Ingham v. Johnson & Johnson
    • United States
    • Missouri Court of Appeals
    • 23 juin 2020
    ...quotations and citations omitted). Missouri courts have adopted a "broad policy favoring permissive joinder." State ex rel. Allen v. Barker , 581 S.W.2d 818, 827 (Mo. banc 1979). Missouri Supreme Court Rule 52.05(a)9 permits multiple plaintiffs to join their claims in a single petition "if ......
  • Patch v. Playboy Enterprises, Inc.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 7 juillet 1981
    ...of action for libel accrues in the county where first published for purposes of venue among Missouri counties. State ex rel. Allen v. Barker, 581 S.W.2d 818, 826 (Mo.1979); Litzinger v. Pulitzer Publishing Co., 356 S.W.2d 81 (Mo.1962), cert. denied, 374 U.S. 831, 83 S.Ct. 1872, 10 L.Ed.2d 1......
  • State ex rel. Johnson & Johnson v. Burlison
    • United States
    • Missouri Supreme Court
    • 13 février 2019
    ...as it pertains to venue); State ex rel. BJC Health Sys. v. Neill , 121 S.W.3d 528, 530 (Mo. banc 2003) (describing State ex rel. Allen v. Barker , 581 S.W.2d 818, 827 (Mo. banc 1979), as "incorrectly stating that ‘the question of venue is contingent upon proper joinder’ "); State ex rel. Ji......
  • Winston v. Reorganized School Dist. R-2, Lawrence County, Miller
    • United States
    • Missouri Supreme Court
    • 2 août 1982
    ...be maintained, freeing the governmental unit of expending resources in litigating a variety of procedural issues. See, State ex rel. Allen v. Baker, 581 S.W.2d 818, 824 (Mo. banc 1979). Additionally, while insurance may or may not be available at a reasonable cost to protect from other risk......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT