110 Mo. App. 312 | Mo. Ct. App. | 1905
— Plaintiff was engaged in mining, as a laborer, for a corporation known as the “Big Circle Mining Company” and was injured (as he alleged) by reason of the negligence of that company. He brought suit against the company for damages and obtained a judgment for $2,500. The mining company appealed to this court where the judgment was reversed and the cause remanded for a new trial. At the second trial this plaintiff again prevailed and obtained a judgment against the mining company, this time for $3,500. Of the latter judgment plaintiff accepted $1,000 as in full and satisfied the record.
Thereafter he instituted this action of maintenance against the present defendant for damages on account of this defendant having willfully intermeddled and unlawfully maintained the defense of the mining company in his case for personal injury. The defendant demurred to the petition as not stating a cause of action. The demurrer was sustained and plaintiff, in view of that ruling, having refused to amend, judgment was rendered for defendant and plaintiff appealed.
Maintenance is one of the old actions at common law, the right of which exists to this day. [Bradlaugh v. Newdegate, 11 Queen’s Bench Div. 1.] It is defined as an “officious intermeddling in a suit that no way belongs to one, by assisting either party with money, or otherwise, to prosecute or defend.” And it is said, “to be an offense against good morals, in that it keeps alive strife and perverts the remedial powers of the law into an engine of oppression.” [5 Am. and Eng. Ency. of Law (2 Ed.), 815.] The offense may be committed by stepping in after litigation has been begun, as by encouraging and aiding its origin. [Bradlaugh v. Newdegate, supra, 9.] Champerty is
The action being recognized to exist as a common law action, we have examined the petition with a view to ascertaining the legal merits of the demurrer. We find that it sets out the controversy which existed in litigation between this plaintiff and the mining company. That he obtained judgment against said company. That this defendant “unlawfully, willfully and maliciously, without having any interest in the case, maintained the mining company by obtaining and prosecuting an appeal from the judgment,” etc. (describing how it did so). Continuing, it alleged that all expenses of procuring and perfecting said appeal were paid by the defendant herein. The petition then alleges the reversal of the judgment and remanding of the cause for another trial. That at such second trial this defendant continued to maintain the defense at its own expense. That by various ways it caused the case to be continued and changes of venue to be had'; but that finally, at the second trial, plaintiff obtained judgment against the mining company for $3,500. It then alleges that before the second trial the mining company had become insolvent, so that it became impossible for plaintiff to collect his judgment and that in view of such condition of the mining company he was compelled to accept $1,000 in full of his said judgment. That at the rendition of the first judgment the mining company was solvent and its insolvency came about between the first and second judgment. And that
In our opinion the petition stated a cause of action. If the acts charged are true (and we must so consider them) defendant was guilty of maintenance and should respond in damages.
Though it does not appear of record, yet in view of the statement of counsel, it may turn out that defendant in its interference with plaintiff’s case against the mining company was not an officious intermeddler. It is said that this defendant is an accident insurance company, and that in that capacity it had indemnified the mining company, upon a valuable consideration, to hold such company harmless from liability in personal injury cases arising against it in favor of employees. Now, if that be true, defendant is not guilty of maintenance in taking part in the litigation between plaintiff and the mining company, and in using the same endeavor and the same means in aid of the mining company to defeat the case which that company might legally have used without such aid. The law recognizes that where one has an interest in the result of a controversy he may aid in its litigation without subjecting himself to prosecution for maintenance, civilly or criminally. Thus he may be a surety or guarantor on a note and aid the principal in defense. He may be a warrantor of title to property and aid and sustain a defense by the warrantee. The landlord may aid his tenant, etc. [5 Am. & Eng. Ency. Law (2 Ed.), 821.]
But more than that, there need not be a pecuniary interest in the result to absolve the aider from the charge of maintenance. The parent may aid the child, or the child the parent; and so in other substantial
It, therefore, seems clear to us that if this defendant had the interest in the result of plaintiff’s suit against the mining company which has been suggested, it had a right to take part in and aid that company in the defense.
The judgment is reversed and cause remanded.
