Summary
construing similar language in section 506.100
Summary of this case from State ex rel. Moore v. LigonsOpinion
No. 28509.
September 16, 1952. Rehearing Denied October 17, 1952.
APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS, IVAN LEE HOLT, JR., J.
Julius J. Selvaggi, and Louis E. Zuckerman, St. Louis, for appellants.
Gragg Aubuchon, and O. P. Owen, St. Louis, for respondent.
Appeal from the order and judgment of the circuit court denying the motion of defendants (appellants) to set aside a default judgment.
Originally the appeal was taken to the Supreme Court, but that court held there was no constitutional question presented and that the jurisdiction was in this court, to which the cause was transferred. Miltenberger v. Center West Enterprises, Inc., Mo.Sup., 245 S.W.2d 855.
Plaintiff (respondent), on September 9, 1949, filed a petition in the Circuit Court of the City of St. Louis against defendants, Center West Enterprises, Inc., and Joseph Fiorito, doing business as Old Homestead Bar, seeking damages in the sum of $7500 for personal injuries alleged to have been sustained on June 4, 1949, when plaintiff stumbled and fell over the handle of metal freight doors imbedded in the sidewalk in front of the building occupied by said defendants. The allegations in said petition relating to the negligence of the defendants are in the following language: "* * * that on the 4th day of June, 1949, as she was walking westwardly on the sidewalk on the south side of Market Street, she was caused to stumble and fall over the handle of defective and unsafe metal freight doors, which were embedded in the concrete sidewalk and used by the defendants for the purpose of transporting freight in and out of the defendants' premises. That said defect of said doors was due to defendants in permitting and maintaining the defective metal doors as hereinabove mentioned in front of the said address, to-wit: 504 Market Street, causing a trap to exist; that said defective and unsafe metal doors was known to the defendants and had so continued for a time sufficient and long prior to plaintiff's injuries for its presence and condition and the danger therefrom to have been known to said defendants, and by the exercise of reasonable care by the defendants for them to have corrected and repaired or otherwise to have made said metal doors in said place safe, prior to plaintiff's injuries, but that defendants negligently suffered, allowed, permitted and maintained said metal doors in said dangerous condition, whereby plaintiff was injured and damaged as hereinafter set forth."
The summons, together with a copy of the petition was duly served on each of said defendants in September, 1949. Neither of said defendants pleaded or made answer within the required 30 days or at any other time and both were at all times thereafter in default.
On June 2, 1950, plaintiff, with leave of court, filed a first amended petition which joined Carl Fiorito as a new party defendant, the record entry being in the following language: "Now at this day comes plaintiff, by attorneys, and by leave of court first had and obtained, files her amended petition joining Carl Fiorito as a new party defendant herein." This amended petition sought recovery for the same injuries and the same amount as alleged in the original petition. Outside of adding the new party defendant the only difference in the allegations related to the specifications of negligence, which in the amended petition were as follows: "* * * That on the 4th day of June, 1949, plaintiff was walking westwardly along the sidewalk in front of the premises of defendants, when her foot came in contact with the metal freight or delivery door which was in and forming a part of the concrete open and public sidewalk, and as a direct and proximate result of the negligence and carelessness of the defendants as hereinafter set forth, plaintiff was caused to fall and sustain serious and permanent injuries.
"3. Plaintiff further states that all said defendants were guilty of the following acts of negligence in this, to-wit:
"a) That defendants and each and all of them knew or by the exercise of ordinary care could have known that said metal freight door or delivery door was not even with said sidewalk, that it projected above and at some places below the said public sidewalk, and that as a direct result thereof said sidewalk in front of the premises aforementioned was not reasonably safe for the travel of the public, more especially plaintiff, in time thereafter for said defendants and each and all of them to have remedied or repaired the same.
"b) That after defendants and each and all of them knew or could have known of the conditions above referred to in the paragraph lettered 'a' they negligently and carelessly failed and omitted to warn plaintiff of said conditions."
No copy of the amended petition or new summons was served upon either of the original defendants. However, upon oral motion the court, at the time it permitted the amended petition to be filed, ordered that a writ of summons issue for defendant Carl Fiorito and such summons, together with a copy of said amended petition, was duly served upon said defendant on June 6, 1950. This defendant did not plead or make answer within the required 30 days or at any other time and was at all times thereafter in default.
The circuit court on August 17, 1950, upon motion of plaintiff, ordered that the amended petition be taken as confessed against the defendants and an inquiry be had. The cause was assigned to Division 1 on August 30, 1950, and a judgment for $3,000 and costs was entered against all of the defendants.
Nothing further occurred until February 1, 1951, upon which date the defendants appeared specially and filed their motion to set aside the aforesaid judgment. On April 23, 1951, this motion was denied by the circuit court and, as heretofore indicated, the defendants have duly appealed.
Defendants strongly urge that the trial court committed error in refusing to set aside the judgment as to the original defendants because there was no service of the amended petition and a new summons upon them. They contend that such was required by Section 506.100, subd. 1, RSMo 1949, V.A.M.S., which reads in part as follows: "Every pleading subsequent to the original petition * * * shall be served upon each of the parties affected thereby, but no service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service [of] summons in this code." This statutory provision was supplemented by Supreme Court Rule 3.03(c), which provides: "Where amended or new pleadings assert new or additional claims for relief against a party in default for failure to appear, which are required to be served in the manner provided for service of summons, the defaulting party is required to appear and defend within the same time as is required after the original service of process of like character." The aforementioned code provision was taken from Fed.Rules Civ.Proc. rule 5(a), 28 U.S.C.A., the portion relating to service of pleadings upon defaulting parties being identical.
If the amended petition asserted "new or additional claims for relief" against these defendants, their contention would be correct and in that event they would have been entitled to have the amended pleading served upon them in the manner provided for service of summons and would have had a 30 day period in which to appear and defend. We have not been cited to any case that has construed the phrase "new or additional claims for relief," or that has determined what would constitute such a claim. Our own search of the authorities relating to this statute, as well as the federal rule, fails to disclose any such case. We will therefore proceed to place our own construction upon this provision, but in so doing will utilize certain well established rules of law and analogous cases which we have found helpful.
In effect, these defendants contend that the word "claim" as used in this statute means contention or allegation. Plaintiff presents the contrary view that the provision "new or additional claims for relief" means that there must be asserted a new cause of action on that new or additional relief be prayed for.
It is an elementary rule of statutory construction that every word, phrase and sentence in a statute should be given some meaning, if possible. State ex Inf. Huffman v. Show-Me Power Co-Op., 354 Mo. 892, 191 S.W.2d 971; Union Electric Co. v. Morris, 359 Mo. 564, 222 S.W.2d 767. If we follow the defendants' contention the exception in the statute which relates to service of pleadings on parties in default would be useless and meaningless. Every amended pleading contains some new or additional allegation. If it did not, there would be no occasion for filing it. It follows, therefore, that if we adopt the reasoning of defendants all amended pleadings would be required to be served upon parties in default for failure to appear. This view would absolutely nullify the exception in question and would be contrary to the aforementioned rule of statutory interpretation. We cannot believe this was the intent of the legislature.
Furthermore, the contention of the defendants is clearly in conflict with the uniform rulings of the Supreme Court to the effect that there is no practical difference between the new "claim for relief" as used in the new Code of Civil Procedure and the old "cause of action." Therrien v. Mercantile-Commerce Bank Trust Co., 360 Mo. 149, 227 S.W.2d 708; Gerber v. Schutte Investment Co., 354 Mo. 1246, 194 S.W.2d 25.
In determining whether a new cause of action is alleged in the amended petition we have sought assistance from the cases relating to departure and change of cause of action decided prior to the adoption of the new code. We find the rule to be firmly established that as long as plaintiff continues to seek recovery for the same injuries, a change in or addition to the allegations of negligence causing the injuries does not brand the amendment as introducing or substituting a new cause of action. Smith v. Harbison-Walker Refractories Company, 340 Mo. 389, 100 S.W.2d 909; Kirchner v. Grover, 343 Mo. 448, 121 S.W.2d 796.
Interpreted literally, the phrase "new or additional claims for relief" as used in this provision of the new code would cause said statute to be construed to mean that no pleadings subsequent to the original petition need be served on parties in default for failure to appear unless said pleading contained a prayer for an additional amount of money or some other new or additional relief.
An examination of the original and amended petitions in this cause, in the light of the authorities heretofore cited, will clearly indicate that no new or additional cause of action was alleged in the amended petition, nor did it seek any new or additional relief. Both petitions sought recovery for exactly the same injuries alleged to have been received in the same accident and for the identical amount of damages. The only change concerned the allegations of the negligence of defendants in the maintenance of the metal doors. Since it is evident that the amended petition asserted no new or additional claims for relief plaintiff was not required to serve the same upon the original defendants.
The defendants further contend that the judgment should have been set aside as to Carl Fiorito because he was not properly brought into the case as a defendant. They contend that Section 507.030, subd. 2, RSMo 1949, V.A.M.S., was not complied with. This statute provides: "When a complete determination of the controversy cannot be had without the presence of other parties, the court may order them to be brought in by an amendment of the petition, or by a supplemental petition and a new summons." Defendants urge that under this statute the only proper method of bringing in an additional defendant is to make an actual physical amendment of the original petition, or by the filing of a supplemental petition, the same to be served upon the said defendant with a new summons and that thereafter, if a plaintiff deemed it necessary, an amended petition could be filed in accordance with the provisions of Section 509.490, RSMo 1949, V.A.M.S. No case has been cited or found which has interpreted the various provisions of the new code as to the manner of bringing in new defendants.
We do not agree with the contentions of defendants as to the proper method of complying with the aforementioned code provision, but will not discuss the same herein as we have concluded that said statute has no application to this case. This statute, which is an identical reenactment of Section 972, RSMo 1939, plainly states that the court may order additional parties brought in when a complete determination of the controversy cannot be had without their presence. It is evident that it was intended to refer only to necessary or indispensable parties. This construction was indicated by this court in State ex rel. Ely v. Bandall, 220 Mo.App. 1222, 299 S.W. 155.
The defendant, Carl Fiorito, was alleged to be a joint tort-feasor and was therefore a proper, but not a necessary or indispensable party. A plaintiff need not sue all joint tort-feasors, but may sue as many of them as he may think proper. Blasinay v. Albert Wenzlick Real Estate Co., 235 Mo.App. 526, 138 S.W.2d 721; Mitchell v. Brown, Mo.App., 190 S.W. 354.
The statute in question should be considered in connection with Section 507.050 subd. 1, which provides, in part, that, "Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just." This provision is very general and if it were intended to apply to every situation where it is deemed necessary or desirable to add a defendant then the enactment of Section 507.030. subd. 2, was an unnecessary and useless proceeding. Both sections were enacted at the same time and as a part of the new Civil Code of Missouri, and if possible should be construed so that each will be given some meaning. The only way this may be accomplished is to hold that Section 507.030, subd. 2, was intended to apply to the addition of necessary parties and that Section 507.050, subd. 1, provided the procedure for adding proper parties. We believe that is the only reasonable and harmonious construction that may be placed upon these provisions.
The procedure by which Carl Fiorito was added as a defendant complies with Section 507.050, subd. 1, with the exception that the court order was evidently made upon the oral rather than written motion of plaintiff. It is clear that this would not be such an irregularity as would have required that the subsequent judgment be set aside.
As we view the situation the method adopted by plaintiff to bring in this additional defendant was a substantial compliance with the Civil Code and was in accord with the practice that has long been used and accepted in this state. There may have been irregularities, but if so, they would not be errors materially affecting the merits of the action and would not require that the judgment be set aside. Section 512.160, subd. 2, RSMo 1949, V.A.M.S.
Respondent's motion to dismiss the appeal because of appellants' alleged failure to comply with Supreme Court Rule 1.08(a) (2) is overruled.
The action of the trial court denying defendants' motion to set aside the judgment rendered in this cause should be affirmed. It is so ordered.
BENNICK, P. J., and ANDERSON, J., concur.