Willey v. Fyrogas Co.

• Decision Date: 08 September 1952
• Docket Number: No. 42690,No. 2,42690,2
• Citation: 251 S.W.2d 635,363 Mo. 406
• Parties: WILLEY v. FYROGAS CO. et al
• Court: Missouri Supreme Court

Page 635

251 S.W.2d 635

363 Mo. 406

WILLEY v. FYROGAS CO. et al.

No. 42690.

Supreme Court of Missouri, Division No. 2.

Sept. 8, 1952.

Motion for Rehearing or for Transfer to Court en Banc Denied

Oct. 13, 1952.

Trusty, Pugh & Green, Guy W. Green, Jr., Kansas City, for appellant-respondent.

Albert Thomson, Johnson, Davis, Thomson, Van Dyke & Fairchild, Kansas City, for appellant-respondent Fyrogas Co.

Shughart & Thomson, Harry P. Thomson, Jr., Kansas City, for appellant, Ruud Mfg. Co. Hale Houts, Alvin C. Randall, Hogsett, Trippe, Depping, Houts & James, Kansas City, for respondent Robertshaw-Fulton Controls Co.

Spurgeon L. Smithson, Kansas City, for respondent, Elmer W. Cone Co.

BARRETT, Commissioner.

The plaintiff's husband, William H. Willey, was injured and died as the result of an explosion of propane gas in the basement of their home. The explosion occurred on August 24, 1948 as Mr. Willey attempted to relight the pilot light on an automatic hot water heater. The plaintiff, Mrs. Willey, claims that the gas escaped and accumulated in the basement by reason of a defective automatic cutoff valve on the heater. Because of their alleged negligence with respect to the defective automatic cutoff valve and Mr. Willey's resulting wrongful death Mrs. Willey instituted this action against the Ruud Manufacturing Company who assembled and manufactured the heater, Robertshaw-Fulton Controls Company, who manufactured and sold the valve to Ruud, the Fyrogas Company, a retailer, who sold the heater to Mr. and Mrs. Willey and installed it in their home, and Elmer W. Cone Company, who negotiated the sale of the heater from Ruud to Fyrogas. The negligence and liability of Ruud, the manufacturer of the heater, and Fyrogas, the retailer and installer of the heater, was submitted to a jury and upon that submission Mrs. Willey has recovered a judgment of $15,000 against these two defendants and they separately appeal from the judgment against them. At the close of all the evidence the trial court directed verdicts for Robertshaw-Fulton Controls who manufactured the valve and Elmer W. Cone Company who effectuated the sale of the heater from the manufacturer, Ruud, to the retailer, Fyrogas, and Mrs. Willey appeals from the judgments in favor of these defendants.

Before the essential merits of this appeal can be determined it is necessary to dispose of a preliminary question raised by the appellant Ruud, and the appeal of Mrs. Willey with respect to the Elmer W. Cone Company. Mr. and Mrs. Willey resided in Jackson County and the explosion and Mr. Willey's death occurred in Jackson County. The Fyrogas Company is a Missouri corporation with its office and residence in Clay County. Mrs. Willey instituted her action in Jackson County and originally the sole defendant was the Fyrogas Company. In her amended and second amended petitions Ruud, Robertshaw-Fulton and Elmer W. Cone were added and joined as defendants. Ruud Manufacturing Company and Robertshaw-Fulton Controls Company are foreign corporations with service agents in the City of St. Louis. Elmer W. Cone Company is a Missouri corporation with its residence and place of business in Jackson County and it is upon the fact of this defendant's residence that Mrs. Willey seeks to maintain the venue of her action in Jackson County. Section 508.010 RSMo 1949, V.A.M.S.; State ex rel. O'Keefe v. Brown, 361 Mo. 618, 621, 235 S.W.2d 304, 306. Ruud does not question as a general proposition or rule the appropriateness of the venue in this action. State ex rel. Columbia Nat. Bank v. Davis, 314 Mo. 373, 284 S.W. 464. It claims, however, that Mrs. Willey's petition did not state a cause of action against the Cone Company, that she in fact had no cause of action against that company and that the joinder of that company as a defendant was for the sole purpose of establishing venue in Jackson County and was fraudulent. It is urged, for these reasons, that the trial court erred in overruling its motion to quash the service before the trial and in overruling its motion to dismiss at the close of all the evidence when the trial court directed a verdict for the Elmer W. Cone Company. If these are the facts established by the record and Ruud's arguments are sound in the respects urged it would follow, of course, lacking proper venue, that the Circuit Court of Jackson County did not have jurisdiction of the defendant Cone and could not thereby acquire jurisdiction over the complaining nonresident defendant Ruud. State ex rel. Thompson v. Terte, 357 Mo. 229, 207 S.W.2d 487; Diehr v. Carey, 238 Mo.App. 889, 191 S.W.2d 296.

Ruud's initial motion to quash was verified by the affidavit of its counsel, there was no evidence upon the motion, and hence there was no proof of fraudulent joinder unless it can be found as the fact that the plaintiff's petition against Cone, the resident defendant, wholly failed to state a claim upon which relief could be granted. State ex rel. Thompson v. Terte, 357 Mo. loc. cit. 240, 207 S.W.2d loc. cit. 492; Diehr v. Carey, supra. And, essentially, that is what Ruud claims, that the petition fails to state a cause of action against Cone and in fact that the plaintiff did not and could not have a cause of action against that defendant. With reference to Elmer W. Cone Company the plaintiff alleges that Cone is the agent and representative of Ruud Manufacturing Company in Missouri, that it had the Ruud heater and valve in its control and possession and sold and delivered the heater to Fyrogas for the purpose of its being installed and used as a water heater and 'that said defendant knew that if said valve was not in proper working condition so as to automatically close the gas passage way of the pilot light, it whould not accomplish the safety results for which it was manufactured and intended * * *.' It is then alleged that Cone 'negligently sold said water heater for the use herein described while it was in said unsafe and dangerous condition, and negligently failed to use ordinary care to inspect said valve before so placing the valve and heater in the hands of The Fyrogas Company to be installed and used in the home of this plaintiff, and negligently failed to warn or inform The Fyrogas Company of such danger.'

The petition does not set forth with accuracy and precision all the essential elements of a cause of action against Cone, but as against the bare claim that it wholly fails to state a claim upon which relief could be granted the petition is certainly sufficient. The petition does not show, upon its face, by its allegations that the Cone Company had discharged any obligation or duty it may have had to the plaintiff, and that, therefore, the plaintiff did not and could not have a cause of action against the resident defendant as was the case in Winter v. Commercial Bank, Mo.App., 238 S.W. 833. It is not the rule, merely because Cone is a distributor or vendor, that Mrs. Willey could not in any and all circumstances have a cause of action against Cone as well as against the other defendants. State ex rel. Dutcher v. Shelton, 249 Mo. 660, 156 S.W. 955. There could be joint and several liability in this case as to all the defendants; such liability is not defeated by the mere fact that the negligence of one defendant preceded or followed that of another defendant in point of time. 65 C.J.S., Negligence, Sec. 102, page 639; State ex rel. C. H. Atkinson Paving Co. v. Aronson, 345 Mo. 937, 138 S.W.2d 1. As will appear more certainly in connection with Cone's ultimate liability, this is not an instance in which 'from the existing state of the law and the facts it is clear that the resident defendant can be liable to the plaintiff on no reasonable legal ground, and that plaintiff knew or must be presumed to have known such to be the case,' and that joinder of the resident defendant was 'pretensively made,' as it plainly appeared in Diehr v. Carey, supra. The plaintiff did not voluntarily dismiss her action as to Cone and the fact that the trial court, in the circumstances, appropriately directed a verdict for the defendant Cone at the close of all the evidence does not establish in and of itself that Mr. Willey could not have had, in any and all events, a cause of action against that defendant or that its joinder as a party was fraudulent or pretensive. Annotation 93 A.L.R. 949; 67 C.J., Sec. 172, p. 110. It follows, in the circumstances of this case, that the trial court did not err in overruling Ruud's motions to quash the service and to dismiss for lack of proper venue.

The heater involved in this explosion was one of a consignment of two heaters shipped by Ruud from Kalamazoo to Cone in Kansas City. The heaters came in crates, each heater covered with a paper bag, and the intake and outlet holes on the automatic cutoff valve were covered with tape. While the heaters were shipped to Cone they were never in Cone's place of business but were stored in the Central Storage and Warehouse Company. It was admitted 'that Elmer W. Cone Company was agent in this territory, that as manufacturer's agent for the sale of Ruud heaters in this territory, as such agent for Ruud Manufacturing Company it effected a sale from Ruud to The Fyrogas Company of the heater in question.' Fyrogas paid the drayage on this heater from the warehouse to its place of business and the heater was received by it in the original crate. The invoice for the heater was from Ruud to Fyrogas, and Fyrogas paid Ruud for the heater by a check to Ruud in the sum of $137.21, Cone receiving a sales commission of $6.70. Mrs. Willey says that Cone was 'the exclusive sales representative for the Ruud heater in all or parts of nine states' and that it had 'physical control, at least by constructive possession in the warehouse' of the heater and that removal of the tape from the inlet port would have revealed the defect to any one at the Cone Company. There was a written contract between Ruud and Cone but...