State ex rel. Sho-Me Power Corp. v. Hawkins, SHO-ME

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: STONE
• Citation: 337 S.W.2d 441
• Parties: STATE of Missouri ex rel.POWER CORPORATION, Relator, v. Hon. James P. HAWKINS, Judge of the Eighteenth Judicial Circuit, Respondent.
• Decision Date: 25 July 1960
• Docket Number: No. 7866,SHO-ME

Page 441

337 S.W.2d 441 STATE of Missouri ex rel. SHO-ME POWER CORPORATION, Relator,
v.
Hon. James P. HAWKINS, Judge of the Eighteenth Judicial
Circuit, Respondent. No. 7866. Springfield Court of Appeals, Missouri. July 25, 1960.

Walker, Daniel, Clampett, Rittershouse & Ellis, Springfield, for relator.

Allen, Woolsey & Fisher, Russell G. Clark, Springfield, for respondent.

STONE, Presiding Judge.

In this original proceeding in mandamus, relator, Sho-Me Power Corporation, seeks to compel certain action by respondent, Judge of the Eighteenth Judicial Circuit, before whom is pending an action for damages styled Charles F. Watts, plaintiff vs. Sho-Me Power Corporation, defendant (hereinafter referred to as Case No. 1376), in which plaintiff Watts alleges that, while working for Koss Construction Company on May 21, 1958, he sustained severe injuries when a mobile crane owned by Koss came into close proximity with one of Sho-Me's high voltage electric transmission lines, under circumstances which (so Watts asserts) render Sho-Me liable to respond in damages.

On February 1, 1960, Sho-Me's counsel presented to respondent judge in Case No.

Page 442

1376 a motion (hereinafter referred to as Sho-Me's motion) praying for 'an order directed to plaintiff (Watts) and to Koss Construction Company authorizing defendant * * * to enter the premises of Koss Construction Company east of Springfield in Greene County, Missouri, and to photograph said Loraine Mobile Crane.' (All emphasis herein is ours.) In its motion, Sho-Me averred that, by reason of Watts' injuries, payments had been made to him under the Missouri Workmen's Compensation Law [Chapter 287, 15 V.A.M.S.]; that Koss and its compensation insurance carrier, Central Surety & Insurance Corporation, 'are subrogated to the extent of such payments and, therefore, are interested parties with respect to this suit' [V.A.M.S. 287.150, as amended Laws of 1957, p. 560]; that the mobile crane then was located on Koss' premises in Greene County, Missouri; and that Watts' counsel, who also had represented Koss and Central Surety, had denied the request of Sho-Me's counsel for permission to enter Koss' premises and photograph the crane. By order reciting generally that 'the court, after due consideration, and being fully advised in the premises, finds that said motion should be overruled,' respondent judge overruled Sho-Me's motion. Thereafter Sho-Me filed its petition for our writ of mandamus 'directing and commanding (respondent judge) to enter an order permitting petitioner (Sho-Me) to enter upon the land in question and to photograph the crane involved'; and, although then dubious whether Sho-Me's petition to us even made a paper case, we decided, in the exercise of our discretion and in the absence of any suggestions in opposition thereto [see Rule 83.22, ¹ formerly Supreme Court Rule 1.25] that our alternative writ should go.

Having had the benefit of exhaustive briefs and enlightening argument by able counsel, and having given the case careful consideration and searching study, we have become convinced that our alternative writ issued improvidently. The only pleading in Case No. 1376 seeking an order permitting entry upon Koss' premises and photographing of the crane in question was Sho-Me's motion overruled by general order on February 1, 1960. The prayer of that motion was for 'an order directed to plaintiff (Watts) and to Koss Construction Company.' A copy of this motion was served upon, and timely notice of hearing was given to, attorneys of record for plaintiff Watts, but admittedly there was no service upon, or notice to, Koss. Sho-Me's motion did not state specifically whether an order was sought under V.A.M.S. 510.030 (now, as amended, Rule 58.01) or in the exercise of the court's inherent power to make reasonable orders requiring litigants to permit entry upon their lands and to submit property thereon to inspection and photographing by adversaries; but, in either event, reasonable notice to Koss would have been a prerequisite to lawful entry of an order such as that sought by Sho-Me.

If (as Sho-Me's counsel earnestly contend, and as we here assume but do not decide) Koss was a 'party' within the contemplation and meaning of subdivision 2 of V.A.M.S. 510.030 (in effect when Sho-Me's...