State ex rel. Campbell v. James

• Decision Date: 14 December 1953
• Docket Number: No. 43712,43712
• Citation: State ex rel. Campbell v. James, 263 S.W.2d 402 (Mo. 1953)
• Parties: STATE ex rel. CAMPBELL et al. v. JAMES.
• Court: Missouri Supreme Court

Page 402

263 S.W.2d 402

STATE ex rel. CAMPBELL et al. v.JAMES.

No. 43712.

Supreme Court of Missouri, En Banc.

Dec. 14, 1953.

Rehearing Denied Jan. 11, 1954.

Harry H. Kay, Eldon, Stanley Garrity, Scott R. Timmons, Caldwell, Downing, Garrity & Eastin, Kansas City, for relators.

Alvin C. Randall, Hogsett, Depping, Houts & James, Kansas City, Errol Joyce, Brookfield, and Walter A. Raymond, Kansas City, for respondent.

HOLLINGSWORTH, Judge.

This is an original proceeding brought by J. A. Campbell, Jewell Campbell and Bruce Allen to prohibit Honorable John R. James, Judge of the Independence Division of the Circuit Court of Jackson County, from proceeding further with the hearing of the cases of (1)Harold Pilkington and Theora Pilkington v. Kansas City Fire & Marine Insurance Company et al., and J. A. Campbell, Jewell Campbell and Bruce Allen, No. 112,166, and (2)A. D. Austin and Marguerite Austin v. Standard Fire Insurance Company et al., and J. A. Campbell, Jewell Campbell and Bruce Allen, No. 112,167, so far as the individual defendants Campbells and Allen are concerned, because, it is asserted, the Circuit Court of Jackson County has no jurisdiction over the persons of said Campbells and Allen.Following issuance of our preliminary rule, respondent made return thereto by way of demurrer to the petition and motion to quash the preliminary rule.Relators moved for judgment on the pleadings, and the matter was thus briefed, orally argued and submitted.Hence, the allegations of fact in relators' petition are to be taken as admitted.

The two suits here involved were originally filed in the Circuit Court of Miller County, Missouri, by the same plaintiffs against J. A. Campbell, Jewell Campbell and Bruce Allen, who were at all times herein mentioned residents of said county.The petitions in the cases filed in Miller County are identical with the petitions filed in the Circuit Court of Jackson County in so far as the allegations against defendants Campbells and Allen are concerned.They alleged in substance that defendantsJ. A. Campbell and Jewell Campbell, as husband and wife, owned certain real estate near Bagnell Dam in Miller County and that plaintiffs in each suit owned land lying near the land of the Campbells.The petition in the Pilkington case then alleged that the Pilkingtons had erected on their land a store building costing $9,000, had installed therein fixtures at a cost of $250, and had expended an additional $1,000 for improvements thereon; that upon completion of said building, plaintiffs placed therein a stock of merchandise, from which store plaintiffs were making a profit of $150 a day.The petition then states that defendants Campbells employed defendant Allen to do some blasting with dynamite on Campbells' land and that Allen set off an enormous charge of dynamite which so shook the earth, underlying rock layers, footings and foundation of plaintiffs' building so as to break and shatter same, leaving large cracks therein, so that rains came seeping through the cracks causing said footings and foundation to give way, and the building to collapse and be completely destroyed.The prayer of the petition was to recover $22,000 damages against defendants, consisting of property damage in the sum of $9,708 and special damage in the sum of $12,292.

The petition in the Austin suit filed in Miller County alleged that the Austins owned land near the Campbells' land and set forth the same allegations against the Campbells and Allen about the setting off of the charge of dynamite as was alleged in the Pilkington suit; that the Austins had spent $3,000 erecting a boathouse and, connected therewith, another building costing $1,600 in which they had a popcorn stand costing $350; and that the boat rental business returned a profit of $50 per day and the popcorn stand a profit of $200 permonth.The prayer was for $8,500 damages, consisting of property damage in the sum of $5,100 and special damage in the sum of $3,400.

In each of said suits filed in Miller County the insurance companies which have been joined as partiesdefendant in the suits filed in Jackson County were permitted to intervene and each filed an intervening petition in the form of an action for a declaratory judgment, wherein each alleged it carried explosion insurance on the property of the plaintiffs in the suit in which it had intervened; that plaintiffs' damage was not caused by explosion; but that if it were found the explosion did cause plaintiffs' damage and a judgment were rendered against it for the amount of its respective explosion insurance coverage, it then prayed a like recovery over from defendants Campbells and Allen.Plaintiffs thereafter dismissed the Miller County suits without prejudice and brought the actions here involved, joining said insurance companies as partiesdefendant.The Pilkington suit joined five insurance companies as defendants and in each of the first five counts of the petition asked judgment against each insurance company for the amount of explosion insurance each carried, together with attorneys fees and damages for vexatious delay.The sixth count, together with allegations common to all counts, is identical with the petition filed in Miller County, and is against the same defendants Campbells and Allen.The amount of damages asked in the sixth count is the same, $22,000.The damages sought against the five insurance companies on their insurance contracts total $10,500, plus attorneys fees and damages for vexatious delay.The Austin suit joined as defendants two insurance companies and sought recovery against each for the amount of the explosion insurance carried by it, a total of $2,000, plus attorneys fees and damages for vexatious delay, and recovery against the Campbells and Allen for the same amount as sought in the Miller County suits, $8,500.

The defendant insurance companies were served with process of summons in Jackson County, where, it is admitted, they were legally domiciled for the purpose of venue in said suits.The defendants Campbells and Allen were each served with summons in Miller County by the sheriff of that county.

Each of the insurance company defendants in each of the Jackson County suits filed separate answer and cross-bill therein, the answer denying that plaintiffs were damaged by an explosion but averring their damage, if any, was caused by flood waters; and in each cross-bill praying if judgment should be rendered against it then it have judgment over by way of subrogation against defendants Campbells and Allen.The Campbells and Allen, appearing specially, filed in each suit separate motions to quash the service of summons and to dismiss the action as to them, and also separate motions to strike the cross-claims of their codefendant insurance companies.Following hearing thereof, respondent herein overruled said motions in each case, and this proceeding ensued.

Relators and respondent agree that if the Circuit Court of Jackson County has acquired jurisdiction over the persons of relators it has done so under Section 508.010 RSMo 1949, V.A.M.S., which provides: 'Suits instituted by summons shall, except as otherwise provided by law, be brought: * * * (2) When there are several defendants, and they reside in different counties, the suit may be brought in any such county; * * *.'

Relators contend that as Sec. 508.010 is construed by the courts of this state a defendant residing in a county other than the county in which suit is brought cannot be lawfully served with summons in the county of his residence unless a joint cause of action is pleaded against the resident and nonresident defendants; and that the petition herein does not plead a joint cause of action against the defendant insurance companies and relators.

Respondent contends that the petitions in both suits allege facts which, under the provisions of Section 507.040 RSMo 1949, V.A.M.S., authorize a joint action against relators and the insurance companies; and that relators thereby become amenable to service in Miller County under process issued out of Jackson County under the provisions of Sec. 508.010.Insofar as applicable here, said Sec. 507.040 provides: '* * * 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, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action.'

Relators deny that the insurance contracts sued on and upon which plaintiffs predicate their right to recovery against the insurance companies arose out of the same transaction or occurrence as the causes of action alleged against the relators, to wit: their tortious act of setting off an enormous charge of dynamite; and that, therefore, Sec. 507.040 does not authorize their joinder in said suits.

It must be conceded that the suits here involved do not plead a joint cause of action against relators and the insurance companies.Hence, the questions to be decided are: Does Sec. 508.010 under which relators were served with summons apply only to defendants residing in counties other than that of the resident defendant when a joint cause of action is pleaded against them?Or is it also applicable when they are made partiesdefendant in a suit in which their joinder is permitted under the provisions of Sec. 507.040, even though a joint cause of action is not pleaded?And, if Sec. 508.010 is applicable to suits brought under the provisions of Sec. 507.040, then was there proper joinder of the relators and the insurance companies under the provisions of Sec. 507.040?

The cases cited by relators in support of their contention that a joint cause of action must be stated before venue will attach to a nonresident defendant under Sec. 508.010 were written prior to the enactment of the new code.Prior to enact...