State ex rel. Cunningham v. Haid

• Decision Date: 24 June 1931
• Citation: 40 S.W.2d 1048,328 Mo. 208
• Parties: The State ex rel. Nat Cunningham v. George F. Haid et al., Judges of St. Louis Court of Appeals
• Court: Missouri Supreme Court

40 S.W.2d 1048

328 Mo. 208

The State ex rel. Nat Cunningham v. George F. Haid et al., Judges of St. Louis Court of Appeals

Supreme Court of Missouri

June 24, 1931

Certiorari to St. Louis Court of Appeals.

Opinion and judgment quashed.

Everett J. Hullverson, Mark D. Eagleton and Hensley, Allen & Marsalek for relator.

(1) The opinion and decision of the Court of Appeals, in holding that the judgment awarded relator in the circuit court was void on the theory that said judgment did not finally dispose of all the parties to the action, is directly contrary to the last controlling rulings of this court, which held that where a judgment mentions and disposes of all the parties, it is not invalid as a whole, even though it may be erroneous as to some of the parties mentioned therein. State ex rel. Dunklin County v. Blakemore, 275 Mo. 702; Cement Co. v. Gas Co., 255 Mo. 1; Dickerson v. Chrisman, 28 Mo. 134; Neenan v. City, 126 Mo. 89; State ex rel. v. Tate, 109 Mo. 265; Freeland v. Williamson, 220 Mo. 217; Morgner v. Huning (Mo.), 232 S.W. 91. (2) The judgment and opinion of the Court of Appeals in holding that, in a case where two are sued as joint tortfeasors, one defendant, on appeal, may secure the reversal of a judgment for plaintiff because of errors committed as to the other defendant (a) when there is a right of reimbursement between them, or (b) when the judgment is against both, is in direct conflict with the controlling rulings of this court. (a) Where there is a right of reimbursement between defendants, error in the trial court, releasing one of the defendants, cannot be availed of by the other on appeal, to secure the reversal of a judgment for plaintiff. Wiggin v. St. Louis, 135 Mo. 558. (b) Where two are jointly sued as tortfeasors, error in the trial court, which results in the release of one of them, cannot be availed of by the other on appeal. Leighton v. Davis (Mo.), 260 S.W. 989; Brickell v. Fleming (Mo.), 281 S.W. 951; Maher v. Coal & Coke Co. (Mo.), 20 S.W.2d 894; Berkson v. Ry. Co., 144 Mo. 211; Westervelt v. Transit Co., 222 Mo. 325; Hunt v. Railroad, 89 Mo. 607; Stotler v. Railroad, 200 Mo. 149.

Fred H. Blades, George F. Wise and Holland, Lashly & Donnell for respondents.

(1) The Supreme Court will not quash an opinion of a court of appeals unless such opinion contravenes a prior controlling decision of the Supreme Court on the same or similar facts. State ex rel. v. Trimble, 20 S.W.2d 48; State ex rel. v. Trimble, 289 S.W. 923; State ex rel. v. Trimble, 290 S.W. 117. (2) None of the cases cited by relator in Point 1 of his brief is contravened on a principle of law by respondents' opinion. (3) None of the cases cited by relator in Point 2 of his brief is contravened on a principle of law by respondents' opinion. Kinloch Tel. Co. v. St. Louis, 268 Mo. 485. (4) The opinion of respondents announces a true and correct proposition of law and, therefore, it should be affirmed. State ex rel. v. Daues, 283 S.W. 51; State ex rel. v. Trimble, 287 S.W. 626.

OPINION

Ragland, J.

This case comes to the writer on reassignment. It is an original proceeding in certiorari, wherein the relator seeks to have quashed the opinion and judgment of the St. Louis Court of Appeals, in the case of Nat Cunningham, respondent, v. Arthur Franke, Louis Franke, defendants, and Hauck Bakery Company, a corporation, appellant, lately before that court on appeal from the Circuit Court of the City of St. Louis. The opinion follows:

"Plaintiff sued Arthur and Louis Franke and the Hauck Bakery Company jointly, for damages for personal injuries sustained by him. There was a verdict and judgment against all the defendants, and the Hauck Bakery Company has appealed.

"The action was brought to the December Term, 1926, of the Circuit Court of the City of St. Louis, and summons was issued to all the defendants, returnable to said term. The summons to the Hauck Bakery Company was duly served and returned, but the summons on the defendants Franke, directed to the Sheriff of St. Louis County, was not served until January 29, 1927, and the return of such service was not filed until April 11 following, the February term of the circuit court having intervened. Meantime, an alias summons was issued to the defendants Franke, returnable to the April term. This was directed to the Sheriff of the City of St. Louis. Return on this alias showed that neither of the defendants Franke had been found. On June 6, 1927, a default was granted as to defendants Franke, and on June 30 following, during the same term, an amended petition was filed on which the cause was later tried.

"It is unnecessary to set out the facts at great length, in view of the questions raised here on appeal. It may be well to state, however, that plaintiff received his injuries when the Hauck Bakery truck was struck by a truck belonging to the Frankes, and the bakery truck run upon or was knocked upon the sidewalk and injured plaintiff.

" When the case was called for trial plaintiff's counsel proceeded to examine the jury with respect to their connection with the insurance company which carried insurance on appellant's truck. He also proceeded to examine the jury with reference to their connection with two insurance companies which it is alleged carried insurance on the defendants Frankes' truck. There was some colloquy between plaintiff's counsel and the court before the trial proceeded. The court indicated that plaintiff would either have to dismiss as to the Frankes, who made no appearance at the trial, either in person or by counsel, or continue the case to the next term on account of defective service as to them. Plaintiff's counsel insisted that he was satisfied with the service and the trial proceeded, and, as above stated, resulted in a verdict and judgment against all the defendants.

"The question raised on appeal here is that there was no valid service on the defendants Franke, and, therefore, there were but two courses open to plaintiff; that he should have either dismissed the case as to the Frankes and proceeded against the appellant alone, or continued the case and had the Frankes brought in at a subsequent term of court, and, not having done so, the judgment is void, because the judgment as rendered did not finally dispose of all the parties to the action.

"We are of the opinion that appellant's position is well taken. There is no effort on the part of respondent's counsel to sustain the position that the service upon the Frankes was good. With no valid service upon the Frankes, plaintiff should either have dismissed as to them or continued the case until the next term. Plaintiff refused to dismiss as to the Frankes, standing upon the service he had obtained. Under the provisions of Section 4223, Revised Statutes 1919, defendants are given the right of contribution after judgment against them. One defendant in a case where two are sued as joint tortfeasors may appeal, and in the appellate court take advantage of errors committed as to the other defendants, when the judgment is against both, or the relation between the defendants is such that if the appellant is compelled to pay the judgment he would have the right of reimbursement. [Flenner v. Railroad (Mo. App.), 290 S.W. 78.]

"If plaintiff sues only one of several who might be held liable for the tort, or if he sues all but dismisses as to all but one, or if he sues all and the jury holds one and finds in favor of the rest, or if he sues all and obtains a judgment which is good as to one but void as to the rest, there is no contribution. In this case there was more than one defendant held jointly liable by the verdict and judgment, and the statute above referred to applies to defendants in the judgment; that means that it does not apply in cases where judgment goes against one and in favor of another, but in this case we have a joint judgment, in which case the Hauck Bakery Company would be entitled to contribution.

"Plaintiff prior to the judgment, could have dismissed and proceeded against either party without encroaching upon the right of the other, but he refused to do this. He insisted before the trial that he was willing to stand upon the service he had obtained upon the defendants Franke. After trial he conceded in substance that there was no valid service upon the Frankes, but argues that appellant can not complain. He can not blow both hot and cold in one breath. He had the opportunity to dismiss as to defendants Franke, but refused to do this until after he had obtained judgment, and then, without any effort to sustain the service upon the Frankes, argues that appellant has no right to...