(DOWNLOAD) "Safeway Stores v. City Raytown" by Supreme Court of Missouri En Banc " Book PDF Kindle ePub Free
eBook details
- Title: Safeway Stores v. City Raytown
- Author : Supreme Court of Missouri En Banc
- Release Date : January 11, 1982
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 64 KB
Description
Plaintiff, Safeway Stores, Inc., appeals from final judgment of dismissal with prejudice of its cause of action for apportionment of liability between it and three defendant-respondents, City of Raytown, Fulton Industries, Inc., and Contractor's Supply Company. The liability of Safeway arises from a judgment rendered against it in a wrongful death action in United States District Court, Western District of Missouri, March 24, 1976. Esler v. Safeway Stores, Inc., 585 F.2d 903 (8th Cir. 1978). Safeway did not implead respondents in the original suit for purposes of subjecting them to a joint judgment as concurrent tortfeasors. The trial court adopted the respondents' position that absent a prior finding of actionable negligence by the original trier of fact, plaintiff is not now entitled to bring a separate and independent action for indemnity against non-parties to the original suit. The trial court's memorandum opinion observed that limiting claims for contribution to the original action through the use of cross-claims, counterclaims or third party practice was consistent with the requirement of due process rights accorded defendant to present their defense in good time and without lapse of many years. This Court granted transfer of Safeway's appeal upon recommendation of and prior to opinion by the Missouri Court of Appeals, Western District. The issues are whether a defendant against whom a judgment of tort liability is rendered has an independent cause of action for apportionment of liability against concurrent tortfeasors 1; and if so, whether such an action violates the respondents' due process rights. U.S. Const. amend. XIV, § 1; Mo. Const. art. I, § 10. Reversed and remanded. Safeway's petition alleges: that on March 24, 1976, John Esler was working pursuant to an agreement with the City of Raytown, Mo; that his work involved the use of a JLG Lift leased to Esler by Contractors Supply and manufactured by Fulton Industries, Inc.; that Esler was killed when a Safeway store vehicle collided with said lift; 2 and that subsequently Esler's widow obtained in the United States District Court, Western District of Missouri, a verdict of liability for negligence against Safeway in the amount of $152,000. All of the foregoing occurred prior to the decision of Missouri Pacific Railroad Co. v. Whitehead & Kales Co., 566 S.W.2d 466 (Mo. banc 1978). Safeway filed this action on April 9, 1979, seeking the apportionment of liability based on relative fault among the City of Raytown, Contractor's Supply Co., Fulton Industries, Inc., and itself. Respondents' separate motions to dismiss Safeway's petition assert: that no separate substantive or procedural right to indemnity or contribution 3 existed prior to the decision in Whitehead & Kales and no such right was created by that decision; and that by failure to file a third party petition against defendants in the original action brought by Esler's widow, Safeway has waived its right to maintain a separate indemnity action. Defendant Fulton Industries also asserted that its right to due process of law would be violated if Safeway's petition is permitted to stand. The trial court granted these motions.
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