This personal, injury action was instituted in the St. Louis County Circuit Court by plaintiff Sandra Martinez, who was allegedly injured by defendant in an automobile accident. Defendant moved to join plaintiff’s husband, the driver of plaintiff’s automobile, as a third party defendant for indemnity under authority of
Missouri Pac. R. Co. v. Whitehead & Kales Co.,
On appeal the issues before the court are: (1) whether the doctrine of inter-spousal immunity should be abrogated in that it serves no rational purpose, or, in the alternative, (2) whether a joinder of plaintiff’s husband as a third party defendant under Rule 52.11 violates that doctrine. This court holds the doctrine of interspousal immunity should not be abrogated and the doctrine would be violated if a third party action were allowed in this ease; accordingly, the trial court’s judgment denying the third party petition is affirmed.
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Defendant first claims that the trial court erred in denying her motion to join plaintiff’s husband as a third party defendant in view of recent decisions in other states abrogating interspousal immunity. Immunity from tort actions between spouses has been the rule since the decision in
Rogers v. Rogers,
Defendant’s second point is that even if the doctrine of interspousal immunity is held to be valid, her motion should be granted because a joinder of a spouse as a third party defendant does not constitute a suit against him. Therefore, according to her, the doctrine does not apply to this case. In support of her contention, she argues that the principle of fairness, 1 which was the basis of Whitehead & Kales Co., supra, dictates that plaintiff’s husband should share in the responsibility for plaintiff’s injuries. In order to achieve a fair result, defendant argues, the distribution of joint tort liability must be based on relative fault. The joinder thus merely represents an enforcement of the equitable duty to share liability, and is not a recovery for the tort.
The Missouri Supreme Court was confronted with the issue of the effect of
Whitehead & Kales Co.
on Missouri’s workmen’s compensation law in
State of Missouri ex rel. Maryland Heights Concrete Contractors, Inc. v. The Honorable Franklin R. Ferriss,
The dissent in Maryland Heights Concrete Contractors argued that Whitehead & Kales Co. adopted a system for the distribution of tort liability based on relative fault. Therefore, even though the employer could not be forced to pay any part of the judgment to the plaintiff, it still should be joined as a third party defendant for the sole purpose of ascertaining the subcontractor’s relative fault.
The standard established by Maryland Heights Concrete Contractors is binding on this court. This court is not to consider whether the relative fault of the parties should be determined, but rather must ascertain whether plaintiff’s husband is amenable to a suit in this case.
The dissent in the Maryland Heights Concrete Contractors case did express its belief that if the concept of relative fault were not used, a party immune from suit could not be joined as a third party defendant, for this would circumvent the purpose of the immunity.
“In this case the bar is raised by The Workmen’s Compensation Law. The purpose of that Law would be circumvented if Charter, the employer, could be held liable to Maryland for Charter’s relative fault in causing plaintiff’s harm. Therefore, a judgment cannot be entered against Charter in this case. A similar situation, with similar result, would arise if the° legal bar were in the form of a *318 release given by the plaintiff to one of multiple defendants. See e. g. State ex rel. Normandy Orthopedics, Inc. v. Crandall,581 S.W.2d 829 (Mo.banc 1979). Again, the purpose and function of the release would be circumvented if the released defendant could be held liable to other defendants for his relative fault in causing plaintiffs harm. Therefore, a judgment could not be entered against the released party.”
Dissent,, page 492. Similarly, in this case the policy of interspousal immunity would be nullified to a large extent if defendant were allowed to hold plaintiff’s husband liable for his negligence. The action would accomplish indirectly an action which could not be accomplished directly.
Shell v. Watts,
“[i]f the one from, whom contribution is sought is not in fact liable to the injured person, he is not liable for contribution. This is true, for example, if he has one of the immunities from liability heretofore recognized for members of the plaintiff’s family, charities and governments. . . . In other words, his defense cannot be circumvented by the plaintiff’s recovery against another tortfeasor, followed by a suit for contribution.”
It is possible that the real effect of the joinder would be to make plaintiff’s husband a defendant in the case. The dissent in
Maryland Heights Concrete Contractors
noted, on 492, that
Whitehead & Kales Co.
dealt with relative fault where “tort-feasors are added as
defendants
under Rule 52.11.” [Emphasis added.] Therefore, the application of
Whitehead & Kales Co.
may be to make the husband a defendant, which is clearly impermissible. Even if not technically made a defendant, however, the practical effect of the third party action would still be to make plaintiff’s husband liable for her injuries. In
Schroeder v. Longenecker,
“What would be the effect of permitting defendant to implead plaintiff’s husband? The case would proceed to trial and the results would be the same as if plaintiff had originally sued her husband jointly with defendant. Under proper instructions if the jury found the husband .was solely responsible for plaintiff’s injuries a verdict would be rendered solely against the husband. If the jury found the husband was jointly responsible for plaintiff’s injuries it would render a judgment jointly against the two defendants.”
The basis of a third party action is a common liability to the plaintiff. Whitehead & Kales Co., supra, 469. Where there is no common liability, as here, no contribution can be obtained. In Hipp v. Kansas City Public Service Co., 237 S.W.2d 928, 931[4] (Mo.App.1951) the court stated that:
“ ‘The test of the propriety of third party impleader has been said to be whether the third party could have been joined originally as a defendant by plaintiff, or whether the third party is liable as a guarantor, surety, insurer or indemnifier of the principal defendant. United States v. Jollimore (Holland Furnace Co.), D.C.Mass.1941 [2 F.R.D. 148 ].’ Page 362, 1947 Supp. Moore’s Federal Practice, Vol. 1.”
In
Ennis v. Truhitte,
In support of her position defendant cites four cases of other jurisdictions which adhere to the minority rule that a joinder is allowable despite marital or family immunity. In two of these cases,
Puller v. Puller,
In
Zarrella v. Miller,
Finally, defendant argues that Missouri law itself recognizes a distinction between a suit against a defendant and third party practice. A defendant is permitted to bring a claim for indemnity after the statute of limitations has run on the plaintiff’s claim against the defendant.
Simon v. Kansas City Rug Company,
The judgment is affirmed.
Notes
. In Whitehead & Kales Co., the court held that “ ‘[t]he essential thing is the attempt to be fair as between persons subjected to a common legal liability.’ ” [Citing Leflar, Contribution and Indemnity Between Tortfeasors, 51 U.Pa.L. Rev. 130, 137 (1932)]. Whitehead & Kales Co., supra, 469.
. Maryland Heights Concrete Contractors, supra, 490[1], held that “Missouri Pacific Railroad Company v. Whitehead & Kales Company, supra, does not remove the immunity conferred by section 287.120.1, supra."
. The Chamberlain case, like many others, recognized that if immunity is to be protected, such third party suits must be denied.
.This case and others recognized that “[a]n interpretation of the Contribution Law that would sustain contribution in these circumstances would afford the means of rendering the husband indirectly liable to his wife in tort for negligence . . ."
Kennedy v. Camp, supra,