State ex rel. Burlington Northern R. Co. v. Forder, 71802

• Decision Date: 17 April 1990
• Docket Number: No. 71802,71802
• Citation: 787 S.W.2d 725
• Parties: STATE ex rel. BURLINGTON NORTHERN RAILROAD COMPANY, Relator, v. Honorable Anna C. FORDER, Judge, Circuit Court, St. Louis City, Respondent.
• Court: Missouri Supreme Court

Page 725

787 S.W.2d 725

STATE ex rel. BURLINGTON NORTHERN RAILROAD COMPANY, Relator, v. Honorable Anna C. FORDER, Judge, Circuit Court, St. Louis City, Respondent.

No. 71802.

Supreme Court of Missouri En Banc.

April 17, 1990.

Thomas J. Prebil, Daniel Francis, St. Louis, for relator.

Charles R. Abele, Mark P. Dupont, Thomas J. Plunkert, Ian P. Cooper, Jeffrey J. Kalinowski, St. Louis, for respondent.

HIGGINS, Judge.

Relator seeks to prohibit Judge Forder from dismissing its third-party petition against a municipal corporation and its statutory engineer. This Court issued its preliminary rule in prohibition to examine whether the Circuit Court of St. Louis City exceeded its jurisdiction by its proposed order of dismissal of the defendant municipal corporations. The preliminary rule in prohibition is quashed.

Scott M. Brice and Glenda Brice, plaintiffs, sued Burlington Northern Railroad Company, and others, seeking damages for personal injuries sustained by Scott Brice in a railroad crossing collision in Marion County, Missouri. Venue was laid in the City of St. Louis, where Burlington Northern has an office and where one of the codefendants resides. §§ 508.010(2) and 508.040, RSMo 1986. Defendant Burlington Northern filed a third-party petition against South River Levee Subdistrict, a municipal corporation situated in Marion County, and against its statutory engineer, Poepping, Stone, Bach & Associates, an Illinois corporation. The third-party petition alleged that the negligence of these third-party defendants caused or contributed to the plaintiff's injury and sought contribution or indemnity.

The proposed third-party defendants separately moved to dismiss asserting, among other grounds, improper venue. The trial court sustained the motions to dismiss and allowed Burlington Northern twenty days "to seek an appropriate writ." A writ of prohibition was sought in the court of appeals; it denied relief. Upon application to this Court, the preliminary rule in prohibition issued; it is now quashed.

Section 508.050, RSMo 1986, provides:

Suits against municipal corporations as defendant or codefendant shall be commenced only in the county in which the municipal corporation is situated, or if the municipal corporation is situated in more than one county, then suits against the municipal corporation shall be commenced only in that county wherein the seat of government of the municipal corporation is situated; except that suits may be brought against a city containing more than four hundred thousand inhabitants in any county in which any part of the city is situated.

The relator concedes that the third-party defendant engineer is entitled to the rights of the municipal corporation under this statute.

Under section 508.050 municipal corporations enjoy a special status with respect to lawsuits against them. The statute "recognizes and protects the local interest of a municipal corporation by requiring that all suits against the municipal corporation be brought 'in the county in which the municipal corporation is situated.' This avoids the necessity of local government officials defending suits in courts across the state." State ex rel. Milham v. Rickhoff, 633 S.W.2d 733, 735 (Mo. banc 1982). The underlying rule is that "when a general [§ 508.010] and a special statute [§ 508.050] deal with the same subject matter, the specific statute prevails over the general one." State ex rel. City of Bella Villa v. Nicholls, 698 S.W.2d 44, 45 (Mo.App.1985).

Relator relies on State ex rel. Garrison Wagner Co. v. Schaaf, 528 S.W.2d 438, 442 (Mo. banc 1975), to effect that in third-party practice, venue need not be established as to a third-party defendant. Garrison Wagner does not govern the question here, however, because its third-party defendant was not a municipal corporation subject to the protection of section 508.050 against defending suits in courts across the state.

Relator also cites Bizzell v. Kodner Development Corp., 700 S.W.2d 819 (Mo. banc 1985), and State ex rel. City of Springfield v. Barker, 755 S.W.2d 731 (Mo.App.1988). Both are inapposite because they dealt with unique situations. Bizzell involved a change of venue. The transferee court became empowered by the change of venue to proceed as if the cause had been originally filed there. This included and permitted addition of a municipality as a party defendant because such municipality could have been lawfully sued in the original or transferor venue. City of Springfield involved a suit against two municipal corporations each situated in a different venue. The court, although recognizing the absolute terms of section 508.050, necessarily recognized that venue had to lie somewhere, and created an exception to section 508.050 to permit the suit against them to be commenced in either county.

Because the trial court's dismissal of relator-defendant's third-party petition is consistent with the protection accorded to respondent municipal corporations by section 508.050, the trial court did not exceed its jurisdiction.

Accordingly, the preliminary rule in prohibition is quashed.

ROBERTSON, COVINGTON, BILLINGS, JJ., and SEILER, Senior Judge, concur.

BLACKMAR, C.J., concurs in separate opinion filed.

HOLSTEIN, J., concurs in result in separate opinion filed.

RENDLEN, J., not sitting.

BLACKMAR, Chief Justice, concurring.

Inasmuch as a majority of the Court is of the opinion that § 508.050, RSMo 1986, precludes bringing a municipal corporation into a lawsuit as third-party defendant in a venue other than that in which it could have been initially sued, I have elected to concur in the principal opinion, so that courts will know that they may not allow such third-party filings. If the legislature is not satisfied with this solution it may amend the venue statutes.

I write separately only because of Judge Holstein's concurrence which, unless rejected by a solid majority of the Court, might encourage other circuit judges to allow such filings. I gather that, had the...