Opinion
1 Div. 475.
October 15, 1970.
Appeal from the Circuit Court, Baldwin County, Telfair J. Mashburn, J.
Holberg, Tully Hodnette, Mobile, Owens Patton, Bay Minette, for appellant.
The doctrine of recoupment or counter-claim under Alabama Law originated in and rests upon the policy of adjusting the whole controversy relating to one transaction, one affair, one res in one suit so that circuity of action might be avoided. Brown v. Patterson, 214 Ala. 351, 108 So. 16; Alabama Code, Title 7, Sec. 350 (Rec. 1958). The clear purpose of Alabama Code, Title 7, Sec. 239 (Rec. 1958) is to facilitate the disposal of all alleged torts committed in the course of one transaction and the section should be liberally construed. Gray v. Williams, 230 Ala. 14, 160 So. 715; City of Bessemer v. Brantley, 258 Ala. 675, 65 So.2d 160. A defendant in a plea of recoupment or counter-claim may join such additional parties as are within the jurisdiction of the Court so long as such counter-claim arose from and refers to the same transaction as alleged in the original complaint and whose presence as such parties are proper or necessary to the complete adjudication of the whole controversy in one case. Alabama Code, Title 7, §§ 239, 350, (Rec. 1958); American Standard Life Ins. Co. v. State, 226 Ala. 381, 147 So. 168. A master is a proper, if not a necessary, party to a plea of recoupment or counter-claim in tort filed by a defendant against an alleged agent, servant or employee, acting within the line and scope of his authority, when the matters complained of in the counter-claim arose from the same transaction or event alleged in the original complaint. Griffin v. Bozeman, 234 Ala. 136, 173 So. 857; Downes v. Norrell, 261 Ala. 430, 74 So.2d 593.
Cunningham, Bounds Byrd, Mobile, for appellee, Lou Holland.
Chason, Stone Chason, Bay Minette, for appellee, Mary G. Godard.
The construction placed upon a statute by the courts of a foreign jurisdiction does not control the construction of a statute of this state which may be similar to, but materially differs from the statute of the foreign jurisdiction. Hale v. Tyson, 202 Ala. 107, 79 So. 499; Ex parte Burns, 266 Ala. 241, 96 So.2d 308; Howell's Mining Co. v. Gray, 148 Ala. 535, 42 So. 448; Code of Ala., Title 7, Sec. 259(1)-(3); Federal Rules of Civil Procedure 13 14. A new party cannot be brought into a pending action by a plea of recoupment. Merchants Bank v. Acme Lbr. Co., 160 Ala. 435, 49 So. 782; Craft v. Standard Accident Ins. Co., 220 Ala. 6, 123 So. 271; 20 Am.Jur.2d, Sec. 76; Code of Ala., Title 7, Sec. 259(1)-(3); Sec. 357; Sec. 239. All parties participating in a wrongful act, directly or indirectly, whether as principals or as agents, or both, are jointly and separately liable in damages for the wrong done, where injury results, and separate suits may be brought against each of such parties. Carter v. Franklin, 234 Ala. 116, 173 So. 861; Greer v. City of Birmingham, 241 Ala. 684, 4 So.2d 394; Ivey, as Adm'r. v. Wiggins, as Adm'x., 271 Ala. 611, 126 So.2d 469; Brooks v. City of Birmingham, 239 Ala. 172, 194 So. 525; Sibley v. Odum, et al., 257 Ala. 292, 58 So.2d 896; A. B. C. Truck Lines, Inc. v. Kenemer, 247 Ala. 543, 25 So.2d 511; Federal Rule of Civil Procedure 13(i). The statute, Title 7, Section 357, 1940 Code of Alabama, has not enlarged the class of claims that may be pleaded by the defendant in a recoupment or reconvention of plaintiff's claim, and leaves such matters to be adjudged on the settled principles of the common law which define recoupment "as the right of the defendant in the same action, to claim damages from the plaintiff." Craft v. Standard Accident Ins. Co., 220 Ala. 6, 123 So. 271; Title 7, Section 357, 1940 Code of Alabama. A third-party complaint may only be filed by a defendant, as a third-party plaintiff when a party, who is not a party to the action, is, or may be liable to such third-party plaintiff for all, or part, of the original plaintiff's claim against the third-party plaintiff. Title 7, Section 259(2), 1940 Code of Alabama As Amended by Act Number 854 in 1965.
In an action for damages allegedly sustained by plaintiff as the result of defendant's operation of an automobile on a public street, defendant sought to implead a third party defendant. The trial court granted plaintiff's motion to strike the third party defendant and discharged the third party from the cause. Defendant assigns the action of the court as error.
Defendant filed a plea of "recoupment and counterclaim" against plaintiff and one Lou Holland, who is the third party. The court ordered service of process on Holland.
Defendant's third party complaint recites in part as follows:
"The Defendant claims of the Plaintiff and Lou Holland, the sum of FIFTY THOUSAND DOLLARS. . . . for that. . . . on, to-wit. . . . on a public street . . . . the Plaintiff who was then and there an agent, servant or employee of Lou Holland, and acting within the line and scope of her employment as such, did so negligently operate an automobile which she was then and there driving, so as to cause, permit or allow the said automobile to collide with . . . . the motor vehicle which the Defendant was then and there driving, and as a proximate result and consequence of the negligence of the said Plaintiff, as aforesaid, the Defendant suffered injuries as follows: . . . . hence this Third Party Plaintiff claim."
Defendant argues that he is entitled to join Holland as a third party so as to enable defendant to prosecute his counter-claim against Holland who was allegedly the principal of plaintiff and responsible, under the doctrine of respondeat superior, for plaintiff's negligence at the time the vehicles collided and defendant was injured. Defendant argues in brief as follows:
"On September 2, 1965, Act 854 (1965) Regular Session became law, and can now be found under Alabama Code, Title 7 Article 11A, Section 259 (1)-(3). The Legislative Reference Service reports that the legislator who introduced the Act had given instructions to the Service that the proposed Act should be prepared so as to follow as closely as possible Rules 13 and 14 of The Federal Rules of Civil Procedure. It was the idea of the legislator that since a body of law has developed as to the application of these particular rules relating to counter-claims, cross-claims and third party practice, it would be simpler to follow these rules in our State Court.
"It is significant that the Act, as adopted and as prepared by the Legislative Reference Service, provides only for actions which are commonly referred to as 'cross-claims' which are nominally litigated between parties on the same side of the main litigation. There is no mention of 'counter-claims' in Act 854, yet Rule 13 of the Federal Rules of Civil Procedure provides for the filing of counter-claims, some permissive and some compulsive, and for the joinder of parties necessary or proper to the complete determination of matter in one suit.
"It would appear, then, that the failure of the Legislature to incorporate the counterclaim provisions of Rule 13 into Act 854 grew out of the fact that such procedures were already available to the defendant under existing Statutory provisions. Such intentions are manifested by the declaration of the Legislature in Section 4 of the Act which states:
" 'Section 4. The provisions of this Act are cumulative and shall be construed insofar as practicable in pari materia with other laws and the rules of Court governing civil actions'.
"It is respectfully submitted, therefore, that the Code Sections 239, 259(1-3) and 350, et seq., should be construed in pari materia with one another, all for the purpose of disposing of one transaction in one case. . . . ."
We are not able to agree with defendant's argument. If the right of a defendant to bring in additional parties existed at law prior to Act No. 854, it does not seem likely that the legislature would have passed the act. In a publication entitled: Continuing Legal Education, Federal Practice And Procedure, Copyright 1965 by the University of Alabama, at page 69; under the heading: "2. Alabama Practice at Law," the following statement appears:
"There is no method for bringing in as a formal party a person who is or may be liable over to the defendant on the plaintiff's claim. . . . ."
So far as we are advised the quoted sentence was a correct statement as to law actions in Alabama prior to passage of Act No. 854. We do not understand any of the cases cited by defendant as holding to the contrary.
In an article entitled "Third Party Practice in Alabama," the author makes the following statements:
". . . . It should be noted at the start that while Act 854 and Rules 13 and 14 of the Federal Rules of Civil Procedure are very similar in language, the Alabama Act does not follow the exact language of the Federal Rules which are the supposed models for the Alabama Act. . . . . Due to the limitations of time I will not attempt to review all the differences in language . . . . although for purposes of construing the Alabama Act these differences in language may be a weighty factor to be considered.
". . . . Both Federal Rule 14 and the Alabama statute provide that the defendant as third-party plaintiff may join a party not a party to the action 'who is, or may be liable to such third-party plaintiff for all or part of the plaintiff's claim against him.' Thus, impleader is proper to join a third-party only when such third party would necessarily be liable over to the defendant for all or part of the plaintiff's recovery against the defendant. . . . The point to remember is that the third-party defendant must be liable under some theory of law or contract to the defendant for all or part of the plaintiff's recovery against the defendant." 28 Alabama Lawyer, January 1967, page 65.
If defendant has the right to join Holland as a third party, defendant must find that right in Act No. 854. [Title 7, § 259 (1)-(3), Code Recompiled 1958, Pocket Parts.] Section 2 of the act commences as follows:
"Section 2. At any time after commencement of a civil action, a defendant, as a third-party plaintiff, may cause a summons and complaint to be served upon a party not a party to the action who is, or may be, liable to such third-party plaintiff for all, or part, of the plaintiff's claim against him. . . . ." Act No. 854, approved September 2, 1965; 1965 Acts, Vol. II, page 1591.
Referring to Section 2 of the act, this court has said:
"Subparagraph (2) of Section 259, Title 7, relative to third party complaints states any time after the commencement of a civil action a defendant as third party plaintiff may cause a summons and complaint to be served. This brings in the additional party not a party to the action who is or may be liable to third party plaintiff for all or part of plaintiff's claim against him. . . . ." (Emphasis Supplied) Ex parte Huguley Water System, 282 Ala. 633, 637, 213 So.2d 799.
The following statement is found in Corpus Juris Secundum:
"Under statutory provisions relating to the bringing in of a third person against whom defendant may recover, it is generally required that the person sought to be impleaded be liable over to the original defendant for all or part of plaintiff's claim in the main action, whether such liability over be by reason of contract or status. The practice, under these provisions, of bringing in additional defendants is based on the possibility that the proposed defendants can be or will be required to respond to the present defendant for a part or the whole of plaintiff's claim; and a third person may not be brought in who will not be required to respond to defendant for the amount of the claim in whole or in part, which plaintiff is seeking to enforce, should plaintiff prevail. . . . ." 67 C.J.S. Parties § 74, page 1040.
Defendant's allegations in his third party complaint are to effect that the plaintiff and the third party are liable to defendant for defendant's claim against plaintiff and the third party. The allegations do not show that the third party, Holland, is or may be liable to defendant for plaintiff's claim against defendant, and, because the allegations do not show that the third party is or may be so liable over to defendant for plaintiff's claim against defendant, the defendant is not entitled to implead Holland as a third party defendant in this cause.
The court did not err in striking Holland as a third party defendant and discharging him from the cause.
Affirmed. SIMPSON, BLOODWORTH, MADDOX and McCALL, JJ., concur.