State ex rel. Garrison Wagner Co. v. Schaaf

• Decision Date: 13 October 1975
• Docket Number: No. 59109,59109
• Citation: State ex rel. Garrison Wagner Co. v. Schaaf, 528 S.W.2d 438 (Mo. 1975)
• Parties: STATE ex rel. GARRISON WAGNER COMPANY, Relator, v. Honorable George E. SCHAAF and Honorable Franklin Ferriss, Judges of the Circuit Court of St. Louis County, Missouri, Respondents.
• Court: Missouri Supreme Court

Page 438

528 S.W.2d 438

STATE ex rel. GARRISON WAGNER COMPANY, Relator, v.Honorable George E. SCHAAF and Honorable Franklin Ferriss Judges of the Circuit Court of St. Louis County Missouri, Respondents.

No. 59109.

Supreme Court of Missouri, En Banc.

Oct. 13, 1975.

Smith, Hanke & Batts, St. Louis, for relator.

Robert G. Brady, Michael B. McKinnis, David S. Slavkin, St. Louis, for respondents; Bryan, Cave, McPheeters & McRoberts, St. Louis, of counsel.

HOLMAN, Judge.

This is an original proceeding in prohibition.Upon application of relator, the Missouri Court of Appeals, St. Louis District, issued a preliminary writ in prohibition.As hereinafter more fully detailed the issue involved is one of venue under the third-party practice as provided for in Rule 52.11(a), V.A.M.R.The question caused the court of appeals considerable difficulty (as it has this court) as indicated by the fact that it first adopted an opinion (with one judge dissenting) making the writ permanent and thereafter withdrew that opinion and adopted another which quashed the preliminary writ.Application to transfer pursuant to Art. V, Sec. 10, Mo.Const., V.A.M.S. was sustained and we decide the case here the same as an original proceeding filed in this court.In so doing, we utilize, without quotation marks, some portions of the opinion of the court of appeals.

On July 26, 1968, Novoson Investment Trust, Inc., hereinafter referred to as Novoson, filed suit in the Circuit Court of St. Louis County against Emerson Electric Company.In its petition, Novoson alleged that Emerson Electric had breached the terms of its lease of the premises located at 2018 Washington Avenue in the City of St. Louis, Missouri, presently occupied by relator Garrison Wagner Company for which alleged breach of the terms of the lease Novoson sought damages.

Novoson acquired the building at 2018 Washington Avenue while Emerson Electric was obligated under the terms of a lease of the premises it had entered into with Harry C. Bohn, on July 26, 1943.The lease terms required Emerson Electric to maintain certain items of the buildings.While Emerson was subject to the above terms of the lease, it sublet the premises to relator Garrison Wagner Company on June 18, 1946, which sublease imposed the same or similar maintenance and repair obligations upon relator as were required of Emerson Electric.The lease and sublease both expired in July, 1963, and relator remained in the building as a tenant of Novoson.

On March 30, 1973, Emerson Electric Company filed a third-partypetition seeking to join relator Garrison Wagner Company.This petition was duly served on Garrison Wagner at its office in the City of St. Louis.The basis for the third-party petition was an allegation that Garrison Wagner had entered into a sublease with Emerson Electric and now occupied the real estate in question.It was alleged that under the terms of the sublease Garrison Wagner must indemnify Emerson Electric in the event Emerson was found to be liable to Novoson for any failure to maintain the premises.Garrison Wagner appeared specially in the Circuit Court of St. Louis County and sought to quash the service and to dismiss the third-partypetition for improper venue and for lack of jurisdiction.On January 4, 1974, the Honorable George E. Schaaf denied this motion.As heretofore indicated, this prohibition proceeding followed shortly thereafter.

Relator Garrison Wagner Company is a corporation organized and existing under the laws of the State of Missouri with its principal place of business in the City of St. Louis, Missouri.Emerson Electric Company is a Missouri corporation with its principal place of business in St. Louis County, Missouri.

As indicated, the issue for decision is whether the venue requirements have been met so that the Circuit Court of St. Louis County, in its discretion, may proceed to determine the issues presented in the third-party petition.

The third-party practice originated in this state as a part of the 'Civil Code of Missouri' adopted in 1943.SeeSection 507.080.¹The provisions of that section have now been substantially incorporated into and superceded by Rule 52.11(a) which provides, in part, as follows: 'At any time after commencement of the action a defending party, as a third-partyplaintiff, may cause a summons and petition to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him.The third-partyplaintiff need not obtain leave to make the service if he files the third-party petition not later than 10 day after he serves his original answer.Otherwise he must obtain leave on motion upon notice to all parties to the action. . . .Any party may move to strike the third-party claim, or for its severance or separate trial.'It may be of interest to note that Rule 52.11(a) is the same as Federal Rule 14.

In deciding the question before us, we must also consider two venue statutes.Section 508.010 states, in part, that 'Suits instituted by summons shall, except as otherwise provided by law, be brought:

'(1) When the defendant is a resident of the state, either in the county within which the defendant resides, or in the county within which the plaintiff resides, and the defendant may be found;'Section 508.040 provides that 'Suits against corporations shall be commenced either in the county where the cause of action accrued, . . . or in any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business.'

Relator contends that Section 508.010 fixes the venue for the claim in question.Alternatively, however, it asserts that even if Section 508.040 is held to be applicable venue would be in St. Louis City because that is where the cause of action, if any, accrued.

Respondents say that Section 508.040 is applicable and that venue thereunder would be in St. Louis County because the cause of action (indemnity) would accrue in that county at the time Emerson is held liable to Novoson.Alternatively, they contend that in accord with the objectives of the third-party practice this court should adopt the rule that where the third-party claim grows out of the same matter as the principal action it should be considered as ancillary thereto and the venue in the principal action would fix the venue for the third-party claim.

There are two cases in which this court has dealt rather extensively with the foregoing venue statutes.In State ex rel. Baker v. Goodman, 364 Mo. 1202, 274 S.W.2d 293(1955) the suit (in the underlying case) was filed in Stoddard County by resident plaintiffs against two corporations, neither of which resided in or kept an office or agent in that county.Therein, we considered the provisions of the two venue statutes and concluded that: 'In a case where individuals and corporations are sued jointly it is necessary to construe the two sections together for neither expressly fixes the venue in such case, and it is only Section 508.010 that does so by implication.But in the case of two corporations being sued, a different situation exists.When we look to the statutes for the proper venue in such a casewe find Section 508,040 designed to cover venue in suits against corporations, which statute can be construed to cover the situation.We believe that such construction should be put on said statute, and that the proper venue in the case at bar is in Stoddard County, where the cause of action, as alleged, accrued.'274 S.W.2d 297.

In State ex rel. Carney v. Higgins, 352 S.W.2d 35(Mo.1961)the plaintiffs in the case involved had filed suit in Clay County, their residence, against a Jackson County corporation to recover damages done to a house located in Clay County upon which the defendant had done construction work for them.In that posture the venue was clearly in Clay County where the claim accrued.Defendant, however, filed a third-party petition against an individual...