State ex rel. Baker v. Goodman
| Decision Date | 08 November 1954 |
| Docket Number | No. 44398,44398 |
| Citation | 274 S.W.2d 293,364 Mo. 1202 |
| Parties | STATE ex rel. Tom BAKER and Trailback Plantation, a Corporation, Relators, v. Judge Arthur U. GOODMAN, Jr., Respondent, Cypress Land Farms Company, a Corporation, Intervenor. |
| Court | Missouri Supreme Court |
Elvis A. Mooney, Bloomfield, C. A. Powell, Dexter, for relators.
Sievers, Reagan & Schwartz, St. Louis, for respondent.
Merrill Spitler, New Madrid, James H. Meredith, Owen T. Armstrong, St. Louis, Lowenhaut, Mattingly, Chasnoff & Stolar, St. Louis, of counsel, for intervenor. ANDERSON, Special Judge.
This is an original proceeding in mandamus to compel the respondent, as Judge of the Circuit Court of Stoddard County, to set aside an order of dismissal as to one of two parties defendant in a cause pending in said court, and to reinstate said cause and proceed to the trial and final disposition of said action. Relators are Tom Baker and Trailback Plantation, plaintiffs in said cause. The case was submitted to this court upon a motion for judgment on the pleadings. The facts, which are not in dispute and which appear from the pleadings, are as follows.
The suit below was originally filed against Cypress Land Farms Company, a corporation, Shell Chemical Corporation, and Cypress Supply Company, a corporation. The petition was in two counts, the first count alleging a cause of action for breach of an implied warranty in the sale to plaintiffs by defendants of a spray cart, and the second count being an action for negligence in connection with said sale.
On May 12, 1953, Cypress Land Farms Company filed its separate answer in said cause. Thereafter, and on October 19, 1953, the relators, as plaintiffs, dismissed said action as to all the defendants except the Cypress Land Farms Company, a corporation, and by leave of court made the Ferguson Machine and Tool Company, Inc., a corporation, a party defendant. At the same time, relators filed their first amended petition.
The first count of the amended petition was directed against the defendant Cypress Land Farms Company. In said first count it was alleged that during the year 1950 plaintiff Trailback Plantation owned approximately ninety acres of land in Stoddard County, Missouri, which plaintiff Tom Baker occupied as tenant; that during the year 1950 all of said land was planted in cotton by Tom Baker under an agreement with Trailback Plantation whereby said tenant had a one-fourth interest in said cotton and the owner a three-fourths interest therein; that on or about June 29, 1950, defendant Cypress Land Farms Company, with knowledge of the above mentioned facts and knowing that plaintiffs desired to purchase a spray cart and spray material to be used by them in spraying their cotton to kill insects thereon, sold and delivered to the plaintiffs a spray cart and six five-gallon cans of 'Aldrin', a chemical to be used in said cart for the purpose of killing insects, and then and there impliedly warranted said spray cart and 'Aldrin' to be in all respects fit and proper for such use; that after said purchase plaintiffs, relying on said warranty, used the spray cart and spray in spraying said cotton, and as a direct result thereof said cotton was damaged and destroyed because said spray cart was contaminated with a poisonous substance other than 'Aldrin', which poisonous substance was commonly known as '2-4-D'; and that plaintiffs suffered damages as a result thereof in the sum of $15,000, for which sum they prayed judgment.
The second count of said petition was directed against both defendants. It alleged that during the year 1950 the defendant Ferguson Machine and Tool Company, Inc., made and assembled approximately forty-three spray carts for one Henry Cohn, Sr., and Henry Cohn, Jr., partners doing business as Carrollton Farm Supply Company; that in June, 1950, after said defendant had manufactured and assembled carts for said Carrollton Farm Supply Company, and while it had said carts in its possession it was furnished a can of poisonous chemicals known as '2-4-D' by said Henry Cohn, Sr., to be used in one of said spray carts for killing weeds at said defendant's place of business in Ferguson, St. Louis County, Missouri; that said poisonous substance was thereafter so used; that thereafter, on or about June 27, 1950, four of said spray carts, including the one in which said poisonous chemical had been used, were delivered to the defendant Cypress Land Farms Company; that the latter, although it knew that the defendant Ferguson Machine and Tool Company had used one of said spray carts to spray poisonous chemicals, sold and delivered same to plaintiffs as a new machine; that at said time Cypress Land Farms Company and its officer, Henry Cohn, Sr., knew that plaintiffs were engaged in raising cotton on their land and desired to use said cart in spraying said cotton with a chemical known as 'Aldrin' for the purpose of killing insects thereon; that plaintiffs did use said spray cart for said purpose and as a result plaintiffs' cotton was damaged and destroyed, all to plaintiffs' damage in the sum of $15,000.
It was further alleged that plaintiffs' damage was due to the negligence of defendants. The negligence charged against Ferguson Machine and Tool Company, Inc., was: '(a) in using the poisonous chemical known as '2-4-D' in said machine in spraying the weeds on the premises belonging to said defendant; (b) in failing to properly and sufficiently clean said machine and all parts thereof after it had used said poisonous chemical therein; (c) in failing to warn the plaintiffs that said poisonous chemical, that is, '2-4-D', had been used in said machine; (d) in failing to place any sign or warning on said machine so as to indicate and warn such persons who might use it that said poisonous chemical had been used therein.'
The negligence charged against Cypress Land Farms Company was: '(a) in failing to properly and sufficiently clean said machine and all parts thereof after the Ferguson Machine and Tool Company, Inc., had used said poisonous chemical, that is, '2-4-D', therein; (b) in failing to warn the plaintiffs that the poisonous chemical '2-4-D' had been used in said machine; (c) in failing to place any sign or warning on said machine so as to indicate and warn persons who might use it that such poisonous chemical had been used therein.'
The prayer of said second count of the petition was for damages in the sum of $15,000 against both defendants.
A summons in said cause was served on the defendant Ferguson Machine and Tool Company, Inc., by the Sheriff of St. Louis County delivering a copy thereof, together with a copy of the amended petition, to Irvin A. Waterstreet, its Vice-President, who at the time was in the company's usual business office in St. Louis County and in charge thereof. A copy of said amended petition was served on defendant Cypress Land Farms Company by delivering the same to its attorney of record.
Cypress Land Farms Company is a Missouri corporation with its principal office, place of business, and residence in the City of St. Louis.
Ferguson Machine and Tool Company, Inc., is a Missouri corporation with its principal office, place of business, and residence in St. Louis County.
Neither defendant maintains an office or agent in Stoddard County for the transaction of its usual or customary business.
After the service upon it as aforesaid, Ferguson Machine and Tool Company, Inc., filed in said cause its motion to dismiss for lack of jurisdiction over said defendant, said motion alleging the court lacked jurisdiction because:
'(a) Neither defendant herein is a resident of Stoddard County, Missouri, as required by Section 508.010 R.S. Missouri, 1949 [V.A.M.S.]
'(b) The summons and petition were illegally sent outside Stoddard County, Missouri, for service on the defendant.
'(c) Neither defendant was personally served in Stoddard County, Missouri. * * *'
Thereafter, said motion was by the court sustained, the court's order reading as follows:
Relators then filed in this court their petition for a writ of mandamus, seeking to compel the respondent to set aside said order, and to reinstate the case as to the defendant Ferguson Machine and Tool Company, Inc., and to proceed to trial as to both defendants.
Thereafter, upon motion, Cypress Land Farms Company was permitted to intervene in this cause for the purpose of filing briefs and being heard at the oral argument in this court.
Relators contend that Section 508.040 RSMo 1949, V.A.M.S., controls the venue of relators' suit against Ferguson Machine and Tool Company, Inc., and Cypress Land Farms Company; that under said statute the proper venue of said suit includes the county where the cause of action accrued; that since relators' cause of action against the defendants accrued in Stoddard County, the suit was properly brought in Stoddard County.
Relators take the further position that intervenor is precluded from asserting that Stoddard County is not the proper venue of relators' suit against it for the reason that intervenor entered its appearance in said cause by filing an answer to relators' original petition.
Respondent takes the position that Section 508.010 RSMo 1949, V.A.M.S., controls the venue of relators' suit; that under said statute the proper venue of said action is either St. Louis County, the residence of Ferguson Machine and Tool Company, Inc., or the City of St. Louis, where Cypress Land Farms Company resides, and for that reason the circuit court of Stoddard County is without jurisdiction.
Intervenor, Cypress Land Farms Company, takes the position that if relators' suit is abated as to Ferguson Machine and Tool...
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