SPERRY CORPORATION, Rеlator, v. The Honorable James S. CORCORAN, Judge, Circuit Court, St. Louis City, Respondent. STATE ex rel. B.G. PRATER, et al., Relator, v. The Honorable James S. CORCORAN, Judge, Circuit Court, St. Louis City, Respondent. LESTER E. COX MEDICAL CENTER, INC., Relator, v. The Honorable James S. CORCORAN, Judge, Circuit Court, St. Louis City, Respondent.
Nos. 64672, 64694 and 64669
Supreme Court of Missouri, En Banc.
Sept. 20, 1983
Rehearing Denied Oct. 18, 1983
657 S.W.2d 619
Leonard P. Cervantes, Stephen J. Jianakoрlos, St. Louis, for respondent.
This is prohibition.
On August 31, 1980, John Reynolds suffered an eye injury in Barry County, Missouri, while working on a haybine mower conditioner alleged to have been manufactured by Sperry. He was taken to Springfield, Missouri, where he was treated by B.G. Prater, M.D., of E.E.N.T. Clinic, at Lester E. Cox Medical Center.
A petition for damages was filed in the Circuit Court of the City of St. Louis. Theories of strict liability, negligence and breach of warranty were asserted against Sperry. Negligent treatment was asserted against Prater, E.E.N.T. and Cox.
Plaintiffs are residents of Barry County. Sperry is a foreign corporation with a registered agent, C.T. Corporation, in the City of St. Louis. Sperry has an office for the transaction of its usual and customary business in St. Louis County. We were informed on oral argument that Sperry has an office for the transaction of its usual and customary business in Greene County. Prater is a resident of Greene County. E.E.N.T. and Cox are corporations with offices for the transaction of their usual and customary business in Greene County.
Sperry, Prater, E.E.N.T. and Cox filed motions to dismiss in which they questioned jurisdiction and venue in the Circuit Court of the City of St. Louis. Respondent Judge Corcoran overruled the motions. Relators sought prohibition in the Eastern District of the Court of Appeals. Prohibition was denied. Relators then sought prohibition in this Court. In January 1983, provisional rules in prohibition were ordered to issue. The causes are consolidated for disposition in this opinion. Prohibition will lie where venue is improper and the trial court is without jurisdiction. State ex rel. Allen v. Barker, 581 S.W.2d 818, 824 (Mo. banc 1979).
It is wеll settled that where three corporations are sued with one individual, as here, venue is determined according to
“Suits instituted by summons shall, except as otherwise provided by law, be brought:
“(1) When the defendant is a resident of the state, either in the county within which the defendant resides, or in the county within which the plaintiff resides, and the defendant may be found; “(2) When there are several defendants, and they reside in different counties, the suit may be brought in any such county;
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“(6) In all tort actions the suit may be brought in the county where the cause of action accrued regardless of the residence of the parties, and process therein shall be issued by the court of such county and may be served in any county within the state; * * *”
We make the following observations:
(1) If thе assertions of liability made in plaintiffs’ petition against the four defendants (Sperry, Prater, E.E.N.T. and Cox) amount to one cause of action, venue in the City of St. Louis is proper because Sperry had a registered agent, C.T. Corporation, in the City of St. Louis. State ex rel. Whiteman v. James, 364 Mo. 589, 265 S.W.2d 298 (banc 1954).
(2) If the assertions of liability made in plaintiffs’ petition against the four defendants amount to a cause of action against Sperry and a separate cause of action against Prater, E.E.N.T. and Cox, venue in the City of St. Louis is improper because the joinder of two or more separate causes of action in a single petition does not create venue as to both causes in the City of St. Louis. State ex rel. Turnbough v. Gaertner, 589 S.W.2d 290 (Mo. banc 1979).
(3) Prater, E.E.N.T. and Cox cannot be held liable for the original harm alleged to have been inflicted by Sperry in Barry County, but only for the additional harm alleged to have been caused by their treatment of the eye in Greene County. State ex rel. Baldwin v. Gaertner, 613 S.W.2d 638 (Mo. banc 1981).
(4) Sperry can be held liable for damages arising from the original harm alleged to have been inflicted by Sрerry in Barry County and from the subsequent harm alleged to have been caused by the treatment in Greene County. Boehmer v. Boggiano, 412 S.W.2d 103, 108 (Mo. 1967).
(5) If recovery is had against Sperry for all damages arising from the original harm and the subsequent harm, Sperry is afforded “a separate cause of action” against Prater, E.E.N.T. and Cox for the proportionate amount of liability based on their relative fault. Safеway Stores, Inc. v. City of Raytown, 633 S.W.2d 727, 732 (Mo. banc 1982).
We reach the following conclusions: this case is controlled by Turnbough, supra, and, because plaintiffs have a separate cause of action against Sperry and a separate cause of action against Prater, E.E.N.T. and Cox, venue in the City of St. Louis is improper.
However, plaintiffs are not without a forum. They may sue Sperry alone in St. Louis County or in Greene County (where Sperry has offices for the transaction of its usual and customary business) for all damages suffered.
The provisional rules in prohibition are made absolute.
RENDLEN, C.J., HIGGINS, GUNN and BILLINGS, JJ., and MORGAN, Senior Judge, concur.
BLACKMAR, J., dissents in separate opinion filed.
WELLIVER, J., not sitting.
BLACKMAR, Judge, dissenting.
I dissent, and would quash our provisional rule in prohibition.
State ex rel. Turnbough v. Gaertner, 589 S.W.2d 290 (Mo. banc 1979), is distinctly different from the cases now before us. The principal opinion asserts that Turnbough is controlling on the basis that the products liability claim against Sperry and
The situation in the present case, however, is distinguishable. It is well established in our law that Sperry, if liable at all, would be liable for all of plaintiff‘s ensuing damages, including damages for any medical malpractice. The medical defendants would be liable, if malpractice is established, only for the augmentation of damage resulting from their own negligence. See State ex rel. Normandy Orthopedics v. Crandall, 581 S.W.2d 829 (Mo. banc 1979); Schumacher v. Leslie, 360 Mo. 1238, 232 S.W.2d 913 (1950); Parkell v. Fitzporter, 301 Mo. 217, 256 S.W. 239 (1923); Staehlin v. Hochdoerfer, 235 S.W. 1060 (Mo. 1921); State ex rel. Blond v. Stubbs, 485 S.W.2d 152 (Mo. App. 1972). The two groups of defendants, then, well may share common liability with respect to any aggravation of the plaintiff‘s injury through ensuing malpractice. Schumacher, 232 S.W.2d at 917.
That Turnbough is distinctly different from the case now before us is made clear by both the majority and the dissenting opinions in State ex rel. Normandy Orthopedics v. Crandall, 581 S.W.2d 829 (Mo. banc 1979). There the plaintiff suffered a fracture of the femur requiring an open reduction. He settled with the person who caused the initial injury, and then sued the treating physicians for negligence in the open reduction. The court majority, recognizing that the original tort-feasor would be liable for all damage if the injuries were found to have beеn aggravated through malpractice, went on to hold that there was a question of fact as to whether the release was intended to bar the malpractice action. The minority held that that action would be barred as a matter of law by a release which did not make it clear that damages resulting from malpractice were not released. The majority opinion cited earlier decisions which seemed to support the minority‘s view and emphasized that they were not overruled except insofar as they precluded consideration of the question of fact which the majority found. The majority clearly held that an unequivocal release of all claims arising out of the initial accident would bar the malpractice claims. Neither the majority nor the minority apparently found it necessary or helpful to discuss the question whether the initial accident and the malpractice claims constituted separate “causes of action.”
In the Turnbough situation, by contrast, a settlement by one defendant would have absolutely no effect on any judgment against the other. The jury, or juriеs, would be instructed that each defendant is liable, if at all, only for the injuries directly resulting from the accident involving that defendant. It would make no difference whether the accidents were six days or six years apart.
Suppose that the manufacturer in the present case should make a payment to the plaintiff in return for a covenant not to sue, after which the case against the medical defendants went to trial and judgment for the plaintiff. Those defendants would be entitled to credit for the amount of the settlement, on the basis that “there can be but one satisfaction for the same wrong.” Abbott v. City of Senath, 243 S.W. 641, 642 (Mo. 1922); State ex rel. Normandy Orthopedics v. Crandall, supra at 831. If the
There might be manifest convenience, furthermore, in trying the two present claims together, in accordance with the teaching of State ex rel. Farmers Insurance Cо. v. Murphy, 518 S.W.2d 655 (Mo. 1975). See also State ex rel. Blond v. Stubbs, 485 S.W.2d 152 (Mo. App. 1972). This is especially so because, as the principal opinion points out, Sperry might have a claim over against the medical defendants if the injuries were aggravated through malpractice. Safeway Stores, Inc. v. City of Raytown, 633 S.W.2d 727 (Mo. banc 1982); State ex rel. Baldwin v. Gaertner, 613 S.W.2d 638 (Mo. banc 1971); Boehmer v. Boggiano, 412 S.W.2d 103 (Mo. 1967). The fact that Sperry‘s claim against the medical defendants could be separately maintained does not mean that it would not be permissible to try it along with the plaintiff‘s initial claim.
Turnbough quite properly observes that venue is established by statute and that, by the express terms of Rule 51.01, court rules cannot limit or extend the statutory requirements for venue. What the opinion overlooks, however, is that Rule 52.05(a) is virtually identical tо
Some of our earlier cases, with problems of venue very much in mind, took a highly restrictive view of the joinder provisions of Rule 52.05(a).1 These holdings were disapproved in State ex rel. Farmers Insurance v. Murphy, supra, written by the author of the Turnbough opinion, and containing extensive discussion. The holding in the principal opinion would mark a retreat from Murphy and a departure from thе line of modern authority giving broad effect to provisions similar to Rule 52.05(a).2
Any intimation that the Civil Code of 1943 had no effect on the venue statutes is refuted by State ex rel. Garrison Wagner Co. v. Schaaf, 528 S.W.2d 438 (Mo. banc 1975), holding that a third party claim does require a showing of independent grounds for venue. The case overruled State ex rel. Carney v. Higgins, 352 S.W.2d 35 (Mo. 1961), and would appear to be a part of the same dеvelopment of the law as is demonstrated by State ex rel. Farmers Insurance v. Murphy, supra, in its overruling of several prior cases. (Note 1, supra). The Court advocated a construction which would permit common questions to be decided on one lawsuit rather than two. State ex rel. O‘Keefe v. Brown, 361 Mo. 618, 235 S.W.2d 304 (Mo. 1951), is sometimes cited for the proposition that the joinder rule “is not a venue statute.” That case involved an attempt to join a motor carrier with an individual defendant in a county which had no connection with the case or the parties. The plaintiff relied on a statute providing that suit against a motor carrier could be brought in any county “where the motor carrier or contract hauler operates.” The Court held that that statute applied only when the common carrier was the sole defendant, whereas thе general venue statute (predecessor of
The case at bar is much like one in which a plaintiff is physically injured by first one defendant, then another, and then another, so that it is extrеmely difficult or impossible to sort out the injuries attributable to each and joinder is thus the most feasible and economical manner available for plaintiff to pursue his claims.
That case held that independent grounds for venue did not have to exist as to the defendants properly joined in the case. The case involved a series of broadcasts by different broаdcasters, containing similar libelous statements. The plaintiff resided in and brought suit in Dallas County. Dallas County defendants were named, so as to lay a foundation for venue under
The foregoing analysis shows that our holdings about such matters as joinder, third party practice, and venue have not been wholly consistent or coherent, but that most later cases have opted in favor of broad joinder and of a finding of proper venue when closely related claims are joined. In this state of the authorities I would confine Turnbough to its particular facts and would hold that, when defendants who may be liable for a single injury are joined, suit may be brought in the county of residence of any defendant pursuant to
I am sure that the court majority is concerned because physicians in Springfield have been hailed into court in the City of St. Louis when the sole St. Louis connection is found in the presence of Sperry Corporation‘s registered office, whiсh is not connected with Sperry‘s business but rather is maintained by a professional corporation service company. I would be willing to consider a modification or rejection of the holding of State ex rel. Whiteman v. James, 265 S.W.2d 298 (Mo. banc 1954), which observes that under
The courts are not without power to take corrective action if the action is commenced in a remote jurisdiction. The doctrine of forum non conveniens is available to the trial court and may be used to prevent a trial from going forward in a jurisdiction which is manifestly inconvenient to the parties and to which no party has a substantial connection.4 The application of this doctrine is a matter of discretion and not ordinarily subject to control through the use of extraordinary writs, but there is such a thing as abuse of discretion, especially when no party has any relationship whatsoever with the forum in which the case is pending and a Missouri venue is avаilable in which all defendants may be sued together. I would consider concurring in result on the basis that a failure to apply the doctrine would represent an abuse of discretion.
I do not read the principal opinion as intimating that suit against all defendants could not be brought in Greene County. The medical defendants appear to be residents of Greene County, so as to make venue proper as to them and those properly joined with them, and Sperry has an office for transaction of business in Greene County.
The majority opinion imposes unnecessary and artificial restraints on the free joinder of parties in a manner neither required nor contemplated by the governing statutes and conforming rules. The provisional rule should be quashed.