Opinion
No. 28613.
July 14, 1953. Rehearing Denied September 11, 1953.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, JAMES F. NANGLE, J.
Not to be reported in State Reports.
J. Grant Frye, Cape Girardeau, for appellants.
Fordyce, Mayne, Hartman, Renard Stribling and William W. Sleater, Jr., St. Louis, for respondent.
This is an action for damages growing out of an alleged breach of a contract of bailment. The appeal is by the plaintiffs from a final judgment of dismissal.
The question for determination is whether the facts stated in the petition were sufficient to give rise to claims upon which relief could be granted, and whether, if so, the claims of Buford Helderman and Farm Bureau Mutual Insurance Company of Missouri were improperly united.
On October 11, 1950, Buford Helderman, a resident of Burfordsville, Missouri, was the owner of a certain automobile upon which he carried a policy of insurance issued by Farm Bureau Mutual Insurance Company of Missouri insuring him against damage to or loss of the said automobile by theft.
On the day mentioned he drove to St. Louis in his automobile, and brought with him two women, Gertrude Helderman and Idell Morgan. The purpose of the trip was to attend an Eastern Star installation ceremony which was to be held in Kiel Auditorium in St. Louis.
Defendant, Von Hoffman Corporation, operates a parking lot at 714 Chestnut Street in downtown St. Louis.
Upon his arrival in St. Louis around 3 o'clock in the afternoon, Buford Helderman parked his automobile on defendant's parking lot and paid a charge of $1 which was alleged to have been paid for his own benefit as well as for the benefit of Gertrude Helderman and Idell Morgan. Left in the automobile at the time it was delivered over to defendant were certain personal belongings of Gertrude Helderman of the alleged value of $68, and certain personal belongings of Idell Morgan of the alleged value of $171. Also left in the automobile were a number of tools belonging to Buford Helderman himself of the alleged value of $15. Neither the tools, nor the personal belongings of Gertrude Helderman and Idell Morgan, were covered by the policy issued by Farm Bureau Mutual Insurance Company of Missouri.
While the automobile was in the custody of defendant, and during the absence of Buford Helderman, Gertrude Helderman, and Idell Morgan, one Heath stole the automobile from off of the parking lot and drove it away with its contents as already described. Subsequently the automobile was recovered, but without its contents, all of which had been disposed of by the thief.
Upon the recovery of the automobile it was found that it had been damaged while in the hands of the thief to the extent of $112.67, which sum Farm Bureau Mutual Insurance Company of Missouri paid Buford Helderman in discharge of its liability under its policy. Defendant, Von Hoffman Corporation, refused a demand for reimbursement of all the damage and losses sustained by the several parties on account of the theft of the automobile.
Buford Helderman, Gertrude Helderman, Idell Morgan, and Farm Bureau Mutual Insurance Company of Missouri thereupon joined as plaintiffs in an action in three counts against defendant, Von Hoffman Corporation.
Count one of the petition was predicated upon the claims of Buford Helderman and Farm Bureau Mutual Insurance Company of Missouri.
In such count it was alleged that plaintiffs (excluding, of course, Farm Bureau Mutual Insurance Company of Missouri) delivered the automobile with its contents to defendant as a bailee for hire and notified defendant's agent in charge of the parking lot of the contents of the automobile; that defendant received the automobile for parking purposes, and impliedly agreed with plaintiffs to use reasonable diligence in protecting the automobile and its contents against loss or damage by theft; but that defendant's agent in charge of the lot failed to exercise reasonable care against theft, so that in consequence of such failure the thief, Heath, was able to and did steal the automobile and its contents without any interference or opposition from defendant's agent.
It was then alleged that when Farm Bureau Mutual Insurance Company of Missouri paid Buford Helderman the sum of $112.67 for the damage to his automobile by reason of such theft, it became subrogated to his rights against defendant, Von Hoffman Corporation, to the extent of such amount; and that it and he, having agreed among themselves as to the division of any recovery, had united their respective claims in order to avoid the splitting of a single cause of action.
Judgment was prayed under count one for the aggregate amount of $127.67, comprising the sum of $112.67 paid by Farm Bureau Mutual Insurance Company of Missouri in the discharge of its obligation under its policy, together with the sum of $15 representing the value of the tools belonging to Buford Helderman.
Count two of the petition, which embodied all the facts set out in count one by special reference, was based upon the claim of Gertrude Helderman in the sum of $68, while count three, which likewise embodied all the facts set out in count one by special reference, was based upon the claim of Idell Morgan in the sum of $171.
As has already been indicated, the court dismissed each and every count of the petition upon defendant's motion.
The ground assigned for the dismissal of count one was that the attempted joinder and assertion of what purported to be the separate claims of Buford Helderman and Farm Bureau Mutual Insurance Company of Missouri violated the prohibition against the splitting of a cause of action.
Defendant seems to assume that despite the ruling of the court, Farm Bureau Mutual Insurance Company of Missouri is still in the case, subject only to the obligation that it plead further and set out with particularity the items of damage to the automobile for which it paid the sum of $112.67. If defendant will check with the record it will see that when not only Farm Bureau Mutual Insurance Company of Missouri, but all the other plaintiffs as well, declined to plead further, the court dismissed "each cause of action of plaintiffs" and directed that defendant go hence without day and have execution for its costs. Consequently the case, as the record now stands, is disposed of with prejudice as to all the several claims including that of Farm Bureau Mutual Insurance Company of Missouri, so that there is nothing now pending in the lower court unless the judgment of dismissal be set aside.
There is of course no doubt of the general rule that a single claim or demand cannot be split up or divided with separate suits thereafter maintained upon the different elements of the damage. But in this case there was actually no splitting of a claim as between Buford Helderman and Farm Bureau Mutual Insurance Company of Missouri. Instead there was the assertion of two claims — one on behalf of Buford Helderman for the loss of his tools, and the other on behalf of Farm Bureau Mutual Insurance Company of Missouri, whose existing contingent interest in any recovery of damages to the extent of its liability under its policy became a vested right to reimbursement from defendant (assuming the latter's actionable negligence) when it discharged its obligation to Buford Helderman under the policy it had written. From that moment Farm Bureau Mutual Insurance Company of Missouri, and not Buford Helderman, was the real and only party interested in recouping what had been paid out in satisfaction of its liability under its policy, while by the same token Buford Helderman, and not Farm Bureau Mutual Insurance Company of Missouri, was the real and only party interested in recovering for the loss of the tools, which had never been embraced within the coverage of the policy. Even though the theft of the automobile constituted but a single occurrence, the situation was nevertheless such that it gave rise to a number of separate claims, one to each of the several plaintiffs for the amount of such plaintiff's individual loss. General Exchange Ins. Corporation v. Young, 357 Mo. 1099, 212 S.W.2d 396.
Furthermore there was no improper uniting of the claims of Buford Helderman and Farm Bureau Mutual Insurance Company of Missouri. Not only did the claims of such two parties arise out of the same transaction or occurrence as we have already shown, but in addition they involved the common question of defendant's responsibility for the damage growing out of the theft of the automobile. Section 507.040 RSMo 1949, V.A.M.S. As a matter of fact it was not at all necessary that this action should have been brought in separate counts, but instead it would have been proper procedure for all four plaintiffs to have joined in a single count with prayers for judgment according to their respective rights to relief. Thorn v. Cross, Mo.App., 201 S.W.2d 492. Inasmuch as there was neither the splitting of a claim as between Buford Helderman and Farm Bureau Mutual Insurance Company of Missouri, nor an improper joinder of their respective claims, the court was in error in sustaining the motion to dismiss count one of the petition.
The motion to dismiss counts two and three, which were predicated upon the respective claims of Gertrude Helderman and Idell Morgan, was put upon the ground of the insufficiency of the facts stated to constitute claims upon which relief could be granted.
As we have already pointed out, each of such counts undertook to incorporate the facts alleged in count one by special reference. Even under the old code, when the petition contained two or more counts, it was proper practice, in order to avoid unnecessary repetition, to refer from one count to another as to matters of inducement and allegations common to the statement of all the several claims. Graves v. St. Louis, M. S.E. Ry. Co., 133 Mo.App. 91, 112 S.W. 736; Orr v. Russell, Mo.App., 231 S.W. 275; McCahon v. Quick Service Laundry Co., Mo.App., 263 S.W. 238.
Because of the difference in the identity of the plaintiffs in the several counts, it may well be that certain of the allegations embodied in count one, although vital to the claims of Gertrude Helderman and Idell Morgan, were actually no part of the claim of Buford Helderman himself. But as we have pointed out, the division of the petition into counts was wholly unnecessary, and no legal consequence is to be ascribed to the fact that plaintiffs saw fit to employ three counts for what really amounted to but a single count.
Reading the petition in its entirety, it must be taken as having effectively set up claims on behalf of Gertrude Helderman and Idell Morgan. Of course it was a condition to defendant's liability to Gertrude Helderman and Idell Morgan that it should have known that their separate belongings were in the automobile, and that it should have accepted such belongings as a part of the subject matter of the bailment. Samples v. Geary, Mo.App., 292 S.W. 1066. But the petition alleged this very thing — that all the plaintiffs deposited the automobile, with its contents, with defendant as a bailee for hire, and advised defendant's agent in charge of the parking lot of the contents of the automobile; that defendant received the same, and impliedly agreed to use reasonable care in looking after the automobile and its contents and in protecting the same against loss and theft; and that pursuant to such agreement Buford Helderman paid defendant the sum of $1, which was for his own benefit and also for the benefit of Gertrude Helderman and Idell Morgan. Whether Gertrude Helderman and Idell Morgan will be able to establish their respective claims at a trial of the case is a question with which we are not now concerned. It suffices for our present purposes to find, as we do, that the petition stated facts sufficient to constitute claims upon which relief could be granted.
It follows that the judgment rendered by the circuit court should be reversed and the cause remanded with directions to the court to set aside the order dismissing the petition and to reinstate the same for further proceedings. It is so ordered.
ANDERSON, J., and DEW, Special Judge, concur.