State ex rel. McClure v. Dinwiddie

• Decision Date: 06 August 1948
• Docket Number: 40846
• Parties: State of Missouri at the Relation of Thomas McClure, Jr., Relator, v. Walter M. Dinwiddie, Judge of the Circuit Court of Boone County, Missouri
• Court: Missouri Supreme Court

213 S.W.2d 127

358 Mo. 15

State of Missouri at the Relation of Thomas McClure, Jr., Relator, v. Walter M. Dinwiddie, Judge of the Circuit Court of Boone County, Missouri

No. 40846

Supreme Court of Missouri

August 6, 1948

Original Proceeding in Mandamus.

Writ modified and made permanent.

Boyle G. Clark, and William H. Becker for relator; Clark, Boggs Peterson & Becker of counsel.

(1) Under Section 20 of the Civil Code the respondent had the power and jurisdiction to order impleader of the third-party defendant, Jack Lanham, over the objection of the plaintiff because the proposed third-party defendant was alleged to be a joint tort feasor, and responsible for contribution to the original defendant for all sums paid as a result of any recovery. Sec. 20, Civil Code; Browne v. Creek, 209 S.W.2d 900; 53 Harvard Law Review 449; 1 Carr, Missouri Civil Procedure, sec. 69, pp. 205, 206; 1 Moore's Federal Practice; Analysis of Rule 14, pocket part, p. 353; Glazer v. Wheeler, 130 S.W.2d 353; Lottman v Cuilla, 288 S.W. 123; 78 A.L.R. 580; 132 A.L.R. 1424; Five Years of Federal Third Party Practice, 29 Virginia Law Review 981, l.c. 989; 4 Fed. Rules Service 900; Fed. Rule of Civil Procedure 14; Erie Railroad Co. v. Thompkins, 304 U.S. 64; Sec. 3658, R.S. 1939. (2) Effect of liability for contribution. Farrell v. Kingshighway Bridge Co., 117 S.W.2d 693; Sec. 3658, R.S. 1939; Eaton & Prince Co. v. Mississippi Valley Trust Co., 123 Mo.App. 117. (3) There is nothing in the nature of this case to warrant the respondent in denying the impleader as a matter of judicial discretion. Sec. 7687, R.S. 1939; Sporia v. Pennsylvania Greyhound Lines, Inc., 143 F.2d 105; Camden v. St. Louis Pub. Service Co., 206 S.W.2d 699; Kansas City v. Mullins, 200 Mo.App. 639, 209 S.W. 558; 1 Carr, Missouri Civil Procedure, 201-202. (4) Under the record in this case the respondent was not justified in denying the impleader upon the ground that the trial would be delayed, and did not in fact deny the impleader for such discretionary reason, if any. Civil Code, sec. 20. (5) Mandamus is the proper remedy. The right of appeal is inadequate under the circumstances. State ex rel. Fielder v. Kirkwood, 345 Mo. 1089, 138 S.W.2d 1009; State ex rel. Wabash v. Shain, 341 Mo. 19, 106 S.W.2d 898.

Alexander, Ausmus & Harris for respondent.

(1) The overruling of relator's motion to implead a third-party defendant by respondent was the exercise of a judicial discretion specifically granted to respondent by Section 20 of the Civil Code. Sec. 20, Civil Code; Federal Rule of Civil Procedure 14; Johnson v. Walsh, 65 F.Supp. 157; General Taxicab Assn. v. O'Shea, 109 F.2d 671; 1 Moore's Federal Practice; Analysis of Rule 14, pocket part, p. 356. (2) Mandamus will not lie to control or dictate the exercise of judicial discretion, unless a clear and gross abuse of such discretion is shown. State ex rel. Clarke v. West, 198 S.W. 1111, 272 Mo. 304; State ex rel. Howe v. Hughes, 123 S.W.2d 105; Sec. 20, Civil Code; State ex rel. Fielder v. Kirkwood, 345 Mo. 1089, 138 S.W.2d 1009; State ex rel. Wabash v. Shain, 341 Mo. 19, 106 S.W.2d 898. (3) Respondent was in doubt as to the right of relator to implead a third-party defendant over the objection of plaintiff. Browne v. Creek, 209 S.W.2d 900; Sec. 3658, R.S. 1939; Eaton & Prince Co. v. Mississippi Valley Trust Co., 123 Mo.App. 117; Farrell v. Kingshighway Bridge Co., 117 S.W.2d 693; Neal v. Curtis Mfg. Co., 41 S.W.2d 543, 328 Mo. 389; Secs. 2, 20, Civil Code; Delano v. Ives, 40 F.Supp. 672; 1 Moore's Federal Practice; Analysis of Rule 14, pocket part, p. 354; Satink v. Holland Township, 31 F.Supp. 229; 1 Carr, Missouri Civil Procedure, sec. 69, pp. 205, 206; 78 A.L.R. 578-580; 132 A.L.R. 1421-1424; Rouse v. Eagle Convex Specialty Co., 13 S.E.2d 15; Lottman v. Wheeler, 288 S.W. 123. (4) Relator has an adequate remedy by appeal. State ex rel. Howe v. Hughes, 123 S.W.2d 105; 1 Carr, Missouri Civil Procedure, pp. 201-202; Secs. 20, 125, Civil Code.

OPINION

Conkling, J.

Mandamus. Upon petition therefor we issued our alternative writ directing Honorable Walter M. Dinwiddie, as Judge of the Circuit Court of Boone County, to permit Thomas McClure, Jr., the defendant in an automobile damage action pending in said circuit court, to file in said cause his third-party petition, or to show cause why such petition should not be permitted to be filed.

We thus have before us an important and heretofore unsettled question of practice under Sec. 847.20 of our new Code (Laws Mo. 1943, pp. 362, 363, Sec. 20). This innovation was introduced by the New Code as of January 1, 1945. The instant question has been quite troublesome to the Courts and to counsel. The lack of uniformity of interpretation and application of this statute in the trial courts has resulted in much confusion in procedure. In various forms this question has arisen in many circuit courts.

On April 9, 1947, Andrew Lanham, a minor, was riding in an automobile then being driven by Jack Lanham. The Lanham automobile collided with one being driven by Thomas McClure, Jr. (original defendant below and relator here) moving at a right angle upon an intersecting street. Andrew Lanham was injured and filed an action for damages against McClure. Andrew Lanham's petition alleged specific negligence in certain particulars. McClure answered denying he was negligent and pleaded contributory negligence. Depositions in the cause were taken and filed, including that of Jack Lanham.

McClure filed in the circuit court his motion for leave to file his third-party petition and therein to make Jack Lanham a third-party defendant, and prayed that summons be served upon Jack Lanham. Attached to that motion, as part thereof, was the third-party petition McClure was asking leave to file. That petition alleged that Jack Lanham was negligent in the specific particulars therein set out; that Andrew Lanham's injuries "were the direct and proximate result of the . . . negligence of the third party defendant" (Jack Lanham); that "Jack Lanham is liable to plaintiff for all damages plaintiff (Andrew Lanham) claims against Thomas McClure, Jr." That petition prayed the discharge of McClure; that "whatever damages the plaintiff herein is entitled to recover, if any, be had and received from the third-party defendant, Jack Lanham"; or, in the alternative, that if both McClure and Jack Lanham be found liable as joint tort feasors, that McClure "have and recover from . . . Jack Lanham contribution for all sums paid to plaintiff on account of any judgment rendered in favor of plaintiff". In said third-party petition relator asserted no cause of action on his part against the proposed third-party defendant. But it is clear from relator's brief that he seeks contribution and not a substitution of Jack Lanham as the sole responsible defendant.

Upon the hearing of the motion plaintiff's counsel appeared and objected to the motion being sustained. The respondent judge by order of record overruled defendant's motion for leave to file the proposed third-party petition, but in his return filed here pleaded: ". . . for the purpose of showing cause, respondent states that the plaintiff in said cause appeared and objected to the granting of said motion and under these circumstances respondent was in doubt as to relator's right to bring in said third-party defendant (Jack Lanham) in any case".

Little has been written touching this general subject in this state. The curious may read. See, Browne v. Creek, 357 Mo. 576, 209 S.W.2d 900; Camden v. St. Louis Public Service Co., 206 S.W.2d 699; Vol. XIII, No. 2 Missouri Law Review, 223, et seq., (April, 1948), and 1 Carr Missouri Civil Procedure, Sec. 69. We have been cited to no case of this jurisdiction which, upon similar facts, has directly considered the precise question here presented. Nor has our research revealed such a case. But many cases upon the subject from other jurisdictions and the Federal Courts have been collected and annotated in 78 A.L.R. 580, et seq., 132 A.L.R. 1424, et seq., and 148 A.L.R. 1182.

It has been written that the general purpose of a rule or statute of the purport here considered is "to avoid two actions which should be tried together to save the time and cost of a reduplication of evidence, to obtain consistent results from identical or similar evidence". It has further been said that its purpose is, "to accomplish ultimate justice for all concerned with economy of litigation and without prejudice to the rights of another".

This section of our statute was adopted substantially in toto from original Rule 14 of the Federal Rules of Civil Procedure, as the rule existed before the amendments thereof effective September 1, 1947. See, 28 U.S.C.A., following Sec. 723c, p. 479. One of those amendments struck from original Rule 14 the words "or to the plaintiff" as they appeared in the first sentence of that rule. Those same words appear in the first sentence, and in the same context in Mo. R.S.A. Sec. 847.20. That amendment thus limited, as to Federal practice, the right of an original defendant to file a third-party petition to a third-party defendant who is or may be liable only to the original defendant. See, "Analysis of Rule 14", 1 Moore's Federal Practice, 1947 Supplement, Pocket Part, page 354, et seq. And compare original and amended Federal Rule 14, and our statute in question.

In the practical use of Rule 14 the experience of the Federal Courts demonstrated that after the tender of a third-party defendant by granting of leave and filing of a third-party petition most plaintiffs declined such tender, refused to amend the complaint and state a cause of action, or, as it is now denominated, a claim upon which relief could be granted, as against such tendered...