State ex rel. Siegel v. McLaughlin

• Decision Date: 08 July 1958
• Docket Number: No. 30077,No. 1,1,30077
• Citation: 315 S.W.2d 499
• Parties: STATE of Missouri at the Relationship of Sam SIEGEL, Relator, v. Honorable James E. McLAUGHLIN, Judge of the Circuit Court of the City of St. Louis, Divisionthereof, Respondent.
• Court: Missouri Court of Appeals

Page 499

315 S.W.2d 499

STATE of Missouri at the Relationship of Sam SIEGEL, Relator, v. Honorable James E. McLAUGHLIN, Judge of the Circuit Court of the City of St. Louis, Division No. 1 thereof, Respondent.

No. 30077.

St. Louis Court of Appeals, Missouri.

July 8, 1958.

Motion for Rehearing or to Transfer to Supreme Court Denied

and Opinion Modified Sept. 8, 1958.

James J. Amelung, Holtkamp, Miller & Risch, St. Louis, for relator.

Frank B. Green, St. Louis, Lloyd E. Boas, St. Louis, of counsel, for respondent.

ANDERSON, Judge.

This is a proceeding in prohibition, the object of which is to prevent the Honorable James E. McLaughlin, Judge of the Circuit Court of the City of St. Louis, from proceeding on cross-claims filed by the St. Louis Public Service Company and H. J. Hoffmann against Relator, Sam Siegel. The three last above named are defendants in a suit for damages for personal injuries filed by Bertha Smith as plaintiff. In said cross-claims the St. Louis Public Service Company and H. J. Hoffmann seek indemnity over and against Sam Siegel in the event they are held liable to plaintiff. The question presented in this proceeding is whether, under the facts alleged, respondent has jurisdiction to award indemnity under said cross-claims.

It appears from the pleadings that plaintiff, Bertha Smith, at the time she received her alleged injuries was a passenger on a streetcar owned by the defendant Public Service Company and operated at the time by its employee, H. J. Hoffmann. Relator Sam Siegel, at said time was operating an automobile. Plaintiff's petition alleged said streetcar was caused to come into collision with Siegel's automobile, with the result that she was thrown about and seriously injured. As to defendant Public Service Company and defendant Hoffmann, the case was pleaded on the theory of res ipsa loquitur, the petition alleging:

'At the time of the aforesaid collision, the streetcar in which plaintiff was riding as a fare-paying passenger was solely and exclusively in the control of defendants, St. Louis Public Service Company and Henry J. Hoffmann, and that the cause or causes of said collision is solely and exclusively within the knowledge of said defendants, and the resulting injuries sustained by plaintiff were directly and proximately caused by the negligence of said defendants in the operation, maintenance, and control of the vehicle in which plaintiff was a passenger.'

The charges of negligence against defendant Sam Siegel were:

'a. Said defendant operated his automobile at an excessive and dangerous rate of speed and at such a rate of speed as to endanger the life and limb of persons on or apt to be on the aforesaid public streets.

'b. Said defendant negligently and carelessly failed and omitted to yield the right-of-way to the vehicle in which plaintiff was a passenger.

'c. Said defendant saw or in the exercise of the highest degree of care could have seen plaintiff and the vehicle in which she was riding in a position of imminent peril of being collided with by the automobile being operated by said defendant in time thereafter to have avoided said collision with the means and appliances at hand by slackening the speed of his automobile, swerving or stopping the same, or by sounding a warning, but negligently and carelessly failed to do so.

'd. Said defendant negligently and carelessly made a sudden stop in front of said streetcar without any warning or signal.'

The cross-claim of defendant St. Louis Public Service Company alleged that at the time in question the streetcar was proceeding properly when defendant Siegel negligently and without warning caused his automobile to turn sharply to its left onto the streetcar tracks and come to a sudden stop in the path of the streetcar, which said negligence was the cause of the collision and plaintiff's injuries. It was then alleged:

'6. That by reason of the existence of the carrier-passenger relationship between this defendant, St. Louis Public Service Company, and the plaintiff, plaintiff is entitled to, and by her pleadings is relying on general res ipsa loquitur negligence and plaintiff is therefore entitled to have the jury infer that this defendant, St. Louis Public Service Company, negligently caused the collision and her injuries despite the fact that as between this defendant and the defendant Sam Siegel, the collision was caused solely by the aforesaid negligence of Sam Siegel and defendants St. Louis Public Service Company and its operator were guilty of no negligence whatever.

'7. That defendant Sam Siegel knew and is chargeable with knowledge of the law permitting the jury to infer negligence on the part of a carrier defendant upon a showing of an injury to a passenger resulting from a collision, and therefore said defendant knew or by the exercise of the highest degree of care should have known that this defendant could and might be subjected to liability for damages for injuries to its passengers if said auto was caused and permitted to collide with this defendant's streetcar, and as the direct result of the aforesaid negligence of defendant Sam Siegel, this defendant has been exposed to a possible liability for damages sustained by plaintiff as this defendant's passenger.

'8. That this defendant's liability, if any be found, is derivative or constructive and is based upon the existence of the carrier-passenger relationship, and is not based upon any direct, primary or active negligence, whereas, the defendant Sam Siegel's negligence, carelessness and recklessness was the direct, primary and active cause of the collision and the plaintiff's injuries, and by reason thereof, this defendant is entitled to be indemnified by said defendant Sam Siegel, for any and all liability or damages it is or may be exposed to.'

The prayer of the cross-claim was:

'* * * and in the event that judgment is found in favor of plaintiff and against this cross-claimant defendant, then for judgment over and against the defendant Sam Siegel for the full amount of plaintiff's judgment * * *.'

The cross-claim of defendant Hoffmann contained similar allegations to those set up in the cross-claim of St. Louis Public Service Company.

Thereafter, Sam Siegel filed his motions to dismiss the cross-claims of the defendants St. Louis Public Service Company and H. J. Hoffmann on the grounds that said cross-claims failed to state a cause of action. The trial court overruled said motions, except certain allegations pertaining to attorneys' fees and investigation expenses. Thereupon, defendant Sam Siegel instituted this proceeding.

The case is submitted here on a motion for judgment on the pleadings filed by relator. To determine whether a case for indemnity exists we look to the allegations of the cross-claims and plaintiff's petition. If from those allegations some possibility of liability over appears, the cross-claims should be allowed to stand. Otherwise, our writ should be made permanent. Johnson v. Endicott-Johnson Corp., 278 App.Div. 626, 101 N.Y.S.2d 922; Traeger v. Farragut Gardens No. 1, Inc., 201 Misc. 18, 107 N.Y.S.2d 525; Pike v. Balmar Const. Co., Inc., Sup., 104 N.Y.S.2d 569.

The area in which a party held liable for negligence may secure indemnity from another party also negligent is closely circumscribed. It embraces a group of special situations and relationships where it has seemed reasonable and desirable to impose the ultimate responsibility on the person found to have played the active or primary role in the negligent situation in favor of one also held liable, but whose part in the event is passive or secondary. In such situations the parties are said not to be in pari delicto.

Thus, where a landlord is held liable by reason of the dangerous condition of his premises he may recover indemnity from the person who actually created the dangerous condition. Barb v. Farmers' Insurance Exchange, Mo.Sup., 281 S.W.2d 297. A city held liable by reason of the dangerous condition of a sidewalk may recover from an adjacent property owner whose negligence created the hazardous condition. City of Springfield v. Clement, 205 Mo.App. 114, 225 S.W. 120. A principal who without personal fault is held liable for the acts of his agent may recover indemnity from said agent. State ex rel. Algiere v. Russell, 359 Mo. 800, 223 S.W.2d 481. One admittedly liable for injuries to a servant due to a defect in a scaffold of which defect he is ignorant may recover indemnity from the manufacturer of the scaffold for the amount paid in settlement. Busch & Latta Paint Co. v. Woermann Construction Co., 310 Mo. 419, 276 S.W. 614. Where a party wall is rendered dangerous by a fire and collapses, injuring persons, the municipality, after being held liable for failure to abate the nuisance, has an action over against the owners. Swentzel v. Holmes, dictum, Mo.Sup., 175 S.W. 871, L.R.A.1915E, 926. A telephone company which set poles in the highway was held liable to the city for any damage it might be compelled to pay a party injured by reason of a defect in the street caused by the negligence of the telephone company. Kinloch Telephone Co. v. City of St. Louis, 268 Mo. 485, 188 S.W. 182. Where a railroad company constructs its tracks across a city street and fails to keep the crossing in repair, and the city is held liable for injuries resulting therefrom, the city may recover from the railroad. City of Independence v. Missouri Pacific Ry. Co., 86 Mo.App. 585. Where a judgment was recovered against a city by one whose horse was injured by an unguarded opening in a street, the city was held to have a cause of action against a contractor for his wrongful neglect to guard the openings as required by ordinance. City of Columbia v. Malo, Mo.App., 217 S.W. 625. A city held liable in damages because of an injury caused by a defective grating in a sidewalk maintained by an abutting property owner may recover against such owner. Kilroy v. City of St. Louis, 242 Mo. 79...