author: SEILER, Judge. BARDGETT, Chief Justice,

text:
    Philip BEISER, by Charles Beiser, His Next Friend, Plaintiff-Appellant, v. PARKWAY SCHOOL DISTRICT, Defendant-Respondent.
    No. 61186.
    Supreme Court of Missouri, En Banc.
    Nov. 14, 1979.
    Rehearing Denied Dec. 6, 1979.

      Robert C. Ely, Ely & Wieland, St. Louis, for plaintiff-appellant.
    W. Munro Roberts, Jr., St. Louis, for defendant-respondent.
   SEILER, Judge.

This is an appeal in a personal injury case from a judgment of the Circuit Court of St. Louis sustaining defendant school district’s motion to dismiss on the ground of the doctrine of sovereign immunity. This case was transferred here by the court of appeals under Rule 83.02 for resolution of an apparent conflict in the decisions of the Court concerning the meaning to be given the term “municipality.” We will treat this case as if here on original appeal. Mo. Const, art. V, § 10.

Appellant was a student at Parkway South Junior High School on May 28, 1976, the date the alleged injury occurred. While he was attending an industrial art class, a fellow student attempted to insert a drill bit into a drill press. The drill bit flew from the drill press and struck appellant in his right eye, resulting in loss of the eye. Appellant filed suit against respondent school district, alleging that his injuries were a result of respondent’s negligence.

Appellant asserts that the school district is a “municipality” for the purpose of § 71.185, RSMo 1978. Accordingly, appellant contends that respondent is liable under the statute to the extent of its insurance coverage. The sole question on appeal, then, is whether a school district is a municipality for the purposes of § 71.185, which establishes a limited exception to the doctrine of sovereign immunity as it applies to municipalities.

Appellant cites as authority in this case dicta from two cases which broadly define the term “municipal corporation” for the purpose of exempting the properties of certain political subdivisions from taxation. In State ex rel. Caldwell v. Little River Drainage District, 291 Mo. 72, 236 S.W. 15 (1921), the Court stated that there is a presumption that the state does not intend to tax political subdivisions and therefore a political subdivision must be considered “a municipal corporation within the meaning of the term as used in the provision of the Constitution dealing with tax exemptions . 236 S.W. at 17 (emphasis added). Appellant relies upon the dicta in Caldwell that the term “municipal corporation” is applied to political subdivisions exercising functions of government and “hence includes counties, school districts, townships . special road districts and drainage districts.” Id. at 16. But in Caldwell it is clear that the Court includes school districts within the term solely for the purpose of finding them to be exempt from taxation: “It is plain that if the property not only of school districts, but of organized townships and special road districts as well, are expressly exempted from taxation by the Constitution, it is because they are ‘other municipal corporations.’ ” Id.

Appellant also cites Larat Investment Co. v. Dickman, 345 Mo. 449, 134 S.W.2d 65 (banc 1939), a case which considered whether the Housing Authority of the City of St. Louis was exempt from state taxation as a “municipal corporation.” Larat Investment cites language from the Caldwell decision and the fact that the General Assembly expressly declared the housing authority to be a “municipal corporation”, holding that the housing authority, like the drainage district in Caldwell, was entitled to a tax exemption. These cases, and dicta in subsequent cases that cite them, St. Louis Housing Authority v. City of St. Louis, 361 Mo. 1170, 239 S.W.2d 289 (banc 1951) (holding that the housing authority, as a municipal corporation, had constitutional and statutory authority to enter into a cooperation agreement); State ex rel. Crites v. West, 509 S.W.2d 482 (Mo.App.1974) (holding that a fire district can be dissolved only as provided by statute), are not persuasive authority for the contention that school districts are “municipalities” for the purposes of § 71.185, RSMo 1978.

In City of Olivette v. Graeler, 338 S.W.2d 827, 835 (Mo.1969), the Court considered the meaning of the term “municipal corporation” for the purpose of the Sawyer Act and held that the municipal services performed by a county do not “make the legal status of a charter county equivalent to that of an incorporated city.” 338 S.W.2d at 836. The Court noted the cases applying a strict reading of the term “municipal corporation” to include only “cities, towns and villages, having subordinate and local powers of legislation” (Heller v. Stremmel, 52 Mo. 309 (1873)), and the larger scope urged by appellant that includes “any public local corporation, exercising some function of government and includes counties [and] school districts . . . ” (Caldwell, supra at 16). But the Court observed that “[t]he same word, term or phrase may vary in meaning depending on the time, place and circumstances under which it is used.” 338 S.W.2d at 835.

Here the statute in question does not even use the term “municipal corporation” which, as discussed above, has been used in a variety of contexts with a varying scope. Rather, § 71.185 uses the term “municipality.” While a municipality may be a municipal corporation in either construction of the term, not all municipal corporations are municipalities. See City of Olivette, supra. Even assuming that a school district may be a municipal corporation for certain limited purposes, it does not follow that a school district is, therefore, a “municipality” for the purposes of the statute in question.

In State ex rel. Conservation Commission v. Le Page, 566 S.W.2d 208, 212 (Mo. banc 1978), we stated the general rule in construing the language of statutes: “Words used in statutes are to be considered in their plain and ordinary meaning to ascertain the intent of the lawmakers.” Under this rule, the plain and ordinary meaning of the term “municipality” does not indicate an intent of the legislature to include school districts within the meaning of § 71.185. The legislature could have used the more inclusive term “public entity” if that were the scope intended; indeed, in the recent sovereign immunity statute the legislature used the term “public entity.” § 537.600, RSMo 1978.

We recently stated the rule of construction that statutory provisions that waive sovereign immunity are construed strictly. Charles v. Spradling, 524 S.W.2d 820 (Mo. banc 1975). Section 71.185 undoubtedly waives the sovereign immunity of a municipality for torts committed while exercising a governmental function if and to the extent the municipality carries liability insurance. In applying a strict construction to the statutory provision, we find that a school district is not a “municipality” for the purposes of § 71.185.

As we note in St. Joseph Light & Power Company v. Kaw Valley Tunneling, Inc. et al., 589 S.W.2d 260 (Mo. banc 1979), a municipality can perform both proprietary and governmental functions and loses sovereign immunity when performing proprietary functions. A special government district, on the other hand, is an arm of the state, and can by its nature perform only governmental functions for which it will enjoy sovereign immunity. Id.; Page v. Metropolitan St. Louis Sewer District, 377 S.W.2d 348 (Mo.1964). In Rennie v. Belleview School District, 521 S.W.2d 423 (Mo. banc 1975), the Court discarded a plaintiff’s contention that a school district was not protected by sovereign immunity because it performed an allegedly proprietary function of maintaining a playground. “It would serve no useful purpose in this case, involving a school district and not a municipality, to enter the maze of the ‘governmental-proprietary’ dichotomy.” 521 S.W.2d at 424 (emphasis added). Clearly, a municipality’s particular liability for torts was not lost upon the legislature- when it used the term “municipality” in its limited exception to the doctrine of sovereign immunity in § 71.185.

In the case at bar, appellant asserts that it is significant that Parkway School District (“Parkway”) carried a policy of liability insurance and that it did so under § 71.185. Whether Parkway purchased insurance coverage erroneously in the belief that § 71.185 authorized it to do so, or whether Parkway purchased insurance in anticipation of the judicial abrogation of sovereign immunity, Parkway’s insurance coverage, if any, is not determinative of the legal issue presented in this case. It goes without saying that a school district does not become a municipality by purchasing insurance under a statutory provision authorizing the purchase of insurance by municipalities.

We hold that a school district is not a “municipality” for the purposes of § 71.185, RSMo 1978. The judgment of the circuit court is affirmed.

DONNELLY, WELLIVER and MORGAN, JJ., and FINCH, Senior Judge, concur.

BARDGETT, C. J., dissents in separate dissenting opinion filed.

RENDLEN, J., dissents and concurs in separate dissenting opinion of BARDGETT, C. J.

HIGGINS, J., not participating because not a member of the court when cause was submitted.

BARDGETT, Chief Justice,

dissenting.

I respectfully dissent. I acknowledge that credible arguments can be made on both sides of the question presented by this case. In this case the municipal corporation — the school district — did utilize public funds to pay the premiums attending the purchase of the public liability insurance which would afford protection to the school district in case of suits in tort. Section 71.185, RSMo 1978, in my opinion, authorizes a municipal corporation to utilize public funds to purchase liability insurance if the municipal corporation chooses to do so. It enables that type of entity to waive governmental immunity to the extent of the insurance coverage purchased. I believe this type of law should be given the broadest interpretation, and, in the context of this statute, the term municipality should be interpreted to include any municipal corporation which had the benefit of governmental immunity from tort liability at the time the statute was passed. In this way the municipal corporation and the public get the full benefit of the expenditure of public funds by the municipal corporation, and there is no imposition of liability which was not foreseen and agreed to by the school district.

I therefore dissent.

      . In Jones v. State Highway Commission, 557 S.W.2d 225 (Mo. banc 1977), this court prospectively abolished governmental immunity, effective August 15, 1978. The delay was allowed, among other reasons, in order to permit the legislature to determine whether to reinstate immunity by statute. It has done so, § 537.600, RSMo 1978. In any case, it is clear that the doctrine of sovereign immunity existed prior to August 15, 1978, and in particular served to protect school districts. O’Dell v. School District of Independence, 521 S.W.2d 403 (Mo. banc 1975); Rennie v. Belleview School District, 521 S.W.2d 423 (Mo. banc 1975).

      . There is no contention that the school district has waived sovereign immunity protection by securing liability insurance or that the school district could be held liable in any event beyond the amount of the insurance so carried. Appellant’s theory of recovery was based solely upon § 71.185, RSMo 1978.

      . The statute, first enacted in 1959, provides:
      “1. Any municipality engaged in the exercise of governmental functions may carry liability insurance and pay premiums therefor to insure such municipality and their employees against claims or causes of action for property damage or personal injuries, including death, caused while in the exercise of the governmental functions, and shall be liable as in other cases of torts for property damage and personal injuries including death suffered by third persons while the municipality is engaged in the exercise of the governmental functions to the extent of the insurance so carried.
      “2. In all suits brought against the municipality for tort damages suffered by anyone while the municipality is engaged in the exercise of governmental functions, it shall be unlawful for the amount of insurance so carried to be shown in evidence, but the court shall be informed thereof and shall reduce any verdict rendered by a jury for an amount in excess of such insurance to the amount of the insurance coverage for the claim.”

      . As we stated earlier, the sole question before the Court is whether a school district is a municipality for the purposes of § 71.185, RSMo 1978. In determining that § 71.185 does not apply to school districts we make no judgment as to § 537.6C0 and its provisions concerning the purchase of insurance by public entities.


source: Caselaw Access Project

license: Public Domain

text:
    Thomas KUHN, Plaintiff-Appellant, v. LADUE SCHOOL DISTRICT, Defendant-Respondent.
    No. 61198.
    Supreme Court of Missouri, En Banc.
    Nov. 14, 1979.

      Mark G. Arnold, Donald W. Bird, St. Louis, for plaintiff-appellant.
    W. Munro Roberts, Jr., St. Louis, for defendant-respondent.
   SEILER, Judge.

This is an appeal in a personal injury case from a judgment of the Circuit Court of St. Louis County sustaining defendant school district’s motion to dismiss on the ground of the doctrine of sovereign immunity. This case was transferred here prior to opinion in the court of appeals on the application of the plaintiff-appellant, under Rule 83.06. We will treat this case as if here on original appeal. Mo.Const. art. Y, § 10.

Appellant alleges that he suffered a compound fracture of his left arm when he fell from a diving board at the West Ladue Junior High School on April 6, 1976, during a faculty “family fun night.” Appellant filed suit against respondent school district alleging that his injuries were a result of respondent’s negligence. Appellant asserts that the school district is a “municipality” for the purpose of § 71.185, RSMo 1978, which waives the sovereign immunity of a municipality for torts committed while exercising a governmental function if and to the extent the municipality carries liability insurance.

In Beiser v. Parkway School District, 589 S.W.2d 277 (Mo. banc 1979) (No. 61186, decided concurrently herewith), we hold that a school district is not a “municipality” for the purposes of § 71.185, RSMo 1978. The same applies here, of course, and the judgment of the circuit court is therefore affirmed.

DONNELLY, WELLIVER and MORGAN, JJ., and FINCH, Senior Judge, concur.

BARDGETT, C. J., dissents in separate dissenting opinion filed.

RENDLEN, J., dissents and concurs in separate dissenting opinion of BARDGETT, C. J.

HIGGINS, J., not participating because not a member of the court when cause was submitted.

BARDGETT, Chief Justice,

dissenting.

I respectfully dissent for the reasons set forth in my dissenting opinion in the case of Beiser v. Parkway School District, No. 61186, 589 S.W.2d 277 (Mo. banc, Nov. 14, 1979), decided concurrently herewith.

      . In Jones v. State Highway Commission, 557 S.W.2d 225 (Mo. banc 1977), this court prospectively abolished governmental immunity, effective August 15, 1978. The delay was allowed, among other reasons, in order to permit the legislature to determine whether to reinstate immunity by statute. It has done so, § 537.600, RSMo 1978. In any case, it is clear that the doctrine of sovereign immunity existed prior to August 15, 1978, and in particular served to protect school districts. O’Dell v. School District of Independence, 521 S.W.2d 403 (Mo. banc 1975); Rennie v. Belleview School District, 521 S.W.2d 423 (Mo. banc 1975).


author: WELLIVER, Judge.

text:
    STATE of Missouri ex rel. ST. LOUIS COUNTY, Missouri, et al., Relators, v. Ninian M. EDWARDS et al., Circuit Judges of the 21st Judicial Circuit of the State of Missouri, Respondents.
    No. 60914.
    Supreme Court of Missouri, En Banc.
    Nov. 14, 1979.
    Rehearing Denied Dec. 6, 1979.
    Thomas W. Wehrle, George W. Lang, II, Clayton, for relators.
    Shulamith Simon, Mark G. Arnold, St. Louis, for respondents.
   WELLIVER, Judge.

This is an original proceeding in the nature of quo warranto instituted by the St. Louis County Supervisor and the acting Director of Welfare of St. Louis County, Missouri, against the circuit judges of the 21st Judicial Circuit. Relators seek to oust respondents from usurping relators’ alleged authority to control “all children’s buildings, all places of detention and correction for children, and other County child welfare institutions,” and to “provide for such personnel in both the administration and detention departments of the Juvenile Court of St. Louis County under the County Merit System as may reasonably be necessary to properly carry on the functions of that Court.” Relators allege that they have the authority to control the juvenile detention facilities by virtue of Art. IV, § 4.410(3) of the 1968 Charter of St. Louis County and Mo.Const. art. VI, § 18, despite the provisions of §§ 211.161 and 211.331, RSMO 1978 to the contrary. Relators base their claim of right to control the juvenile court’s employees on State on inf. Anderson ex rel. Weinstein v. St. Louis County, 421 S.W.2d 249- (Mo. banc 1967) and State on inf. Anderson ex rel. Weinstein v. St. Louis County, 451 S.W.2d 99 (Mo. banc 1970). We find respondents in this case to be innocent of any usurpation of, intrusion into, or unlawful holding and executing of an office or franchise as alleged in relators’ information, and quash the writ of quo warranto.

Relators filed this information in the nature of quo warranto on August 1, 1978, and on September 12, 1978, this Court issued its order to respondents to show cause why they should not be ousted from the exercise of control over juvenile detention facilities and from providing for such personnel as may be reasonably necessary to carry on the functions of the juvenile court as prayed in the information. Respondents filed an answer denying that they are usurping any franchise properly belonging to relators. On January 15,1979, this Court ordered the appointment of the Honorable Norwin D. Houser as Special Commissioner for the purpose of conducting a hearing, taking testimony, making findings of fact and conclusions of law, and reporting to this Court his recommendations as to final disposition of the issues, all pursuant to Rule 68.03 and Mo.Const. art. V, § 26. The parties agreed to a stipulation of the material facts and each party filed a memorandum and proposed conclusions of law with the Special Commissioner. In the report filed June 7, 1979, Special Commissioner Houser recommended that the order to show cause

be quashed for failure of the stipulated facts to show that respondents are usurping, intruding into or unlawfully holding, exercising or executing privileges, rights, duties or lawful authority of relators with respect to the control and charge of the children’s buildings, places of detention and correction for children and other county child welfare institutions, or with respect to the provision of personnel in the administration and detention departments of the Juvenile Court of St. Louis County.

The Special Commissioner further recommended that costs be assessed to relators. Exceptions to the report were filed by rela-tors and overruled by the Special Commissioner and the case was docketed for hearing before-this Court.

The parties stipulated to the following facts. Respondents currently exercise and at all relevant times have exercised control over the facilities involved: the Juvenile Center, the Lakeside Center for Boys, and two facilities known as the Group Homes. The Superintendent of the Juvenile Center is responsible to the Director of Court Services who in turn is under the control of the juvenile court judge. The appointment to juvenile court judge is rotated among the judges of the various divisions of the Circuit Court of St. Louis County. The juvenile court judge also controls and administers the Group Homes and sits on the Board of Directors of the Lakeside Center. Relator St. Louis County carries and pays premiums for fire, extended coverage and vandalism insurance on the buildings and contents of the Juvenile Center and the Lakeside Center and on the contents of the Group Homes.

The Juvenile Center, located at 501 South Brentwood, St. Louis, Missouri, was constructed with funds from a $5,000,000 bond issue approved by the voters of St. Louis County in 1969 and is equipped, operated and maintained with public funds of St. Louis County. Supplies for the Center are purchased through St. Louis County’s Department of Administration, but respondents make decisions regarding such purchases. The Juvenile Center contains housing for juveniles in the custody of the Juvenile Court of St. Louis County and ancillary facilities, the juvenile court room and the administrative offices of the juvenile court, and facilities in which the juvenile court’s diagnostic, educational, counseling and treatment programs are conducted, including the Shelter Care Unit, the General Educational Degree Program, Project L.E.A. R.N., and Psychological Services for Children.

The Lakeside Center for Boys, located at 13044 Marine Avenue, St. Louis County, Missouri, is a specialized residential treatment center for socially and emotionally disturbed boys with a high potential for improvement, who appear before the Juvenile Court of St. Louis County. The Lakeside Center was acquired and constructed with funds from an $800,000 bond issue approved by the voters of St. Louis County in 1955 and is equipped, operated and maintained primarily with public funds of St. Louis County, with funds for a small portion of expenses ánd for certain programs provided by private donors.

The Group Homes, located at No. 2 and No. 7 Concord Center Drive, and Darrow Hall, Rt. 1, Box 550, Cedar Hill, Missouri, are leased pursuant to St. Louis County ordinance. The funds to lease, equip, operate and maintain the Group Homes are exclusively public funds of St. Louis County. Prior to October 1, 1978, the federal government provided varying proportions of the funds used to equip, operate and maintain the Group Homes.

Fifty-eight of the 189 employees who serve the juvenile court and whose salaries are not funded under federal grants are covered by the St. Louis County Merit System, pursuant to agreement between the judges of the 21st Judicial Circuit and the St. Louis County Council. The employees covered by the county merit system have the following job classifications: clerk typist, licensed practical nurse, cook, head cook, court room security officer, maintenance man, custodial worker, food service worker and laundry worker. The remaining 131 employees are not covered by the St. Louis County Merit System, but are hired and terminated and their compensation is fixed by the juvenile court judge. These employees have the following titles or job classifications: Director of Court Services, Superintendent and Assistant Superintendent of the Juvenile Center, chief juvenile officer, deputy juvenile officer (social worker and social worker aide), institutional teacher, detention program director, detention caseworker, legal staff, and legal intern. Employees whose salaries are funded by federal grants are not included in the county merit system.

After the adoption of the St. Louis County Merit System on April 1, 1954, the employees serving the detention facility were brought under the county merit system, but the remaining employees serving the juvenile court were not subject to the merit system. Following this Court’s decision in State on inf. Anderson ex rel. Weinstein v. St. Louis County, 421 S.W.2d 249 (Mo. banc 1967), all employees serving the juvenile court were placed under the Department of Public Welfare and were subject to the merit system. Following the subsequent decision in State on inf. Anderson ex rel. Weinstein v. St. Louis County, 451 S.W.2d 99 (Mo. banc 1970), all employees serving the juvenile court were eliminated from the Department of Welfare and were not subject to the merit system. Fifty-eight nonprofessional employees were then brought under the merit system when the above-mentioned agreement between the judges of the 21st Judicial Circuit and the St. Louis County Council was reached in settlement of a suit brought by clerical employees seeking to be included in the County Retirement Plan.

The instant dispute raises two questions: (1) whether the juvenile court has the right to control the physical facilities provided by the county for the detention and treatment of juveniles who are subject to the jurisdiction of the juvenile court; and (2) whether the juvenile court has the right to control the employees who provide services in carrying out the functions of the juvenile court. In the discussion that follows, the two questions are treated separately.

I.

Relators contend that the St. Louis County Director of Welfare has the right to immediate control of juvenile detention and correction facilities, specifically the Juvenile Detention Center, the Lakeside Center for Boys, and the Group Homes. Relators base this contention on Art. IV, § 4.410(3) of the 1968 Charter of St. Louis County, which provides that the director of welfare shall have the power and duty to “[h]ave control and charge of all children’s buildings, all places of detention and correction for children, and other county child welfare institutions.” This charter provision directly contradicts §§ 211.161.3 and 211.331.3, RSMo 1978, which expressly place the control of such facilities in the juvenile court. The question for determination thus becomes whether the provisions of the St. Louis County Charter relating to control over juvenile facilities takes precedence over the provisions in the Juvenile Code relating to such control. The answer depends on whether the control of juvenile detention facilities is a matter which is within the province of general legislation involving the public policy of the state as a whole. Flower Valley Shopping Center v. St. Louis County, 528 S.W.2d 749, 754 (Mo. banc 1975); State ex rel. Spink v. Kemp, 365 Mo. 368, 283 S.W.2d 502, 514 (banc 1955).

Missouri’s Juvenile Code, Chapter 211, RSMo 1978 establishes a comprehensive statutory framework for the treatment of juveniles coming within its jurisdictional provisions. The Juvenile Code endows the juvenile court with numerous powers. The Code provides that the juvenile court shall have exclusive jurisdiction in proceedings involving children who are alleged to have violated a state law or municipal ordinance. § 211.031.1(2);, RSMo 1978. The Code provides that the juvenile court may, in general, retain jurisdiction over a child until the child attains the age of twenty-one for the purpose of facilitating the child’s care, protection and discipline. § 211.041, RSMo 1978. The juvenile court may order that a juvenile who is taken into custody for violation of law or ordinance be detained pending disposition of the case, provided the court specify the reason for detention. § 211.141, RSMo 1978. The Code gives the juvenile court the authority to commit a child to the custody of a public or other agency or institution legally authorized to care for children, or to the custody of an association, school or institution in another state on the approval of the appropriate agency in that state, or to the custody of the juvenile officer. § 211.181(2), RSMo 1978. The juvenile court may suspend any of its orders and place the child on probation as it deems reasonable. § 211.181(6), RSMo 1978. All commitments made by the. juvenile court shall be for an indeterminate period of time, not to continue beyond the child’s twenty-first birthday. § 211.231, RSMo 1978. The Juvenile Courts Chapter is to be liberally construed to effectuate its purpose. § 211.011, RSMo 1978.

As part and parcel of this statutory framework, the Code provides that “medical, psychiatric and other facilities . shall be under the administration and control of the juvenile court.” § 211.161.3, RSMo 1978. Detention facilities must be provided in first and second class counties by- the county court or other authorized body, so located and arranged that a child never comes into contact in any manner with convicted or arrested adults. §§ 211.-331.1 and 211.331.2, RSMo 1978. As noted above, “[t]he place of detention shall be in charge of a superintendent” who is appointed by the juvenile court and whose compensation is fixed by the juvenile court. § 211.331.3, RSMo 1978. The General Assembly considered placement of control of juvenile facilities in the juvenile court to be so important to the achievement of the purpose of providing care, protection and discipline of children coming within the juvenile court’s jurisdiction that it made explicit provision for the juvenile court to control those facilities. The evident purpose of the Juvenile Code provisions in question is to insure that a single agency (the juvenile court) control and coordinate all aspects of juvenile treatment. We are convinced that the question of who is to control juvenile facilities is a subject of general legislation that involves the public policy of the state as a whole. “In general, the provisions of the Juvenile Act (Chapter 211) relate to state functions and are applicable to St. Louis County.” State on inf. Anderson ex rel. Weinstein v. St. Louis County, 421 S.W.2d 249, 255 (Mo. banc 1967). Consequently, Art. IV, § 4.410(3) of the 1968 Charter of St. Louis County, which purports to override §§ 211.161.3 and 211.-331.3, RSMo 1978 is without effect.

Relators contend that Art. IV, § 4.410(3) of the 1968 Charter of St. Louis County should take precedence over the Juvenile Code, placing heavy reliance on State on inf. Dalton ex rel. Shepley v. Gamble, 365 Mo. 215, 280 S.W.2d 656 (banc 1955). In Gamble, this Court declined to oust the Department of Police of St. Louis County from performing the duties of law enforcement which, prior to adoption of a charter amendment in 1954, had been performed in St. Louis County by a sheriff. The Court determined that a sheriff is a county officer within the meaning of the constitutional provision that gives the county the right to provide in its charter “for the form of the county government, the number, kinds, manner of selection, terms of office and salaries of the county officers.” Mo.Const. art. VI, § 18(b). The Court held that “provision must be made by the charter county for the performance of the duties enjoined upon sheriffs by our statutes, but the county has the choice as to what officer or agency will be designated to perform the duties.” Gamble, 280 S.W.2d at 660.

The control of the facilities here in question is distinguishable in at least three ways from the question of the manner of provision of law enforcement services which Gamble determined to be a matter of local concern. First, there is clear support in the debates concerning Mo.Const. art. VI, § 18 in the Constitutional Convention for the view that although a county charter must provide some officer to enforce state laws, they “might call him anything.” Mr. Mayer, 9 Debates of the Missouri Constitution 1945, pp. 2747-48; Gamble, 280 S.W.2d at 661. There is nothing in the Debates to support the inference that a county might vary the control of facilities for juvenile care provided for in the Juvenile Code. Secondly, the Court in Gamble found statutory support for the conclusion that a sheriff was a “county officer” in § 57.080, RSMo 1949, which provided that vacancies in the office of sheriff shall be filled by the county court. Nothing in the Juvenile Code can be construed to give the county control over juvenile facilities. The third and most important distinction to be drawn is one suggested by the other two points: unlike the duty of law enforcement, which is placed on the county by our statutes, the duty of controlling juvenile facilities was never placed on the county but is placed on the juvenile court by the Juvenile Code. Control of the facilities in question by the county cannot be rendered consistent with these statutory provisions. Consequently, unlike charter provision for a county Department of Police, § 4.410(3) of the 1968 Charter of St. Louis County does much more than merely vary the manner of performing a duty which is already imposed on the county; it also attempts to arrogate to the county the duty to control juvenile facilities. The analogy sought to be drawn by relators to the situation in Gamble thus does not withstand analysis.

Relators have failed to show that respondents are usurping a franchise rightfully belonging to the county. The requested ouster of respondents from control of juvenile facilities should be denied.

II.

Relators seek to oust respondents from control of the employees of the juvenile court, and to bring those employees within the.provisions of the county merit system established in Art. VII of the 1968 Charter of St. Louis County. The merit system provides “for the appointment of all county employees and appointive county officers ... on the basis of merit ascertained as nearly as practicable by competitive examination and for the retention of said employees and officers on the basis of merit and ability.” 1968 Charter of St. Louis County art. VII, § 7.010. The merit system provides a plan for classification of positions in which, the compensation of the employees will be tailored to follow “the principle of equal pay for substantially equal work,” and for the establishment of a civil service commission to establish pay plans, to set up job classifications, and to hear appeals in cases of disciplinary actions by appointing authorities. Id., §§ 7.010 and 7.030.

Relators base their claim to the right to control the juvenile' court’s administrative and detention facility employees on the conclusion reached in State on inf. Anderson ex rel. Weinstein v. St. Louis County, 421 S.W.2d 249, 255 (Mo. banc 1967) (hereinafter, Weinstein I). Weinstein I was an action in the nature of quo warranto challenging the legal authority of the St. Louis County Council to reduce budget estimates of the juvenile court without its consent. The Court held that such budget estimates could not be reduced without the consent of the circuit court. The Court also concluded that “the personnel provided for the assistance of the juvenile court are not judicial officers within the meaning of [Mo.Const.] Art. VI, § 18(e), but are employees of the county.” Based on this conclusion, Wein-stein I held that the employees reasonably necessary to properly carry on the functions of the Juvenile Division of the Circuit Court of St. Louis County in either the administration or detention departments

shall be expeditiously employed and their salaries fixed in accordance with the charter, rules, and ordinances applicable to the civil service commission and the merit system; [and] that the present employees serving the juvenile court are subject to the merit system and their salaries shall be fixed in accordance therewith and the estimates placed in the budget for said employees shall be in harmony with the salaries so fixed.

Id. at 255.

The finding of Weinstein I that the employees of the juvenile court were subject to the provisions of the St. Louis County Merit System, was subsequently overruled in State on inf. Anderson ex rel. Weinstein v. St. Louis County, 451 S.W.2d 99 (Mo. banc 1970) (Weinstein II). Weinstein II was an action in the nature of quo warranto challenging the legal authority of St. Louis County and certain county officials to determine the number of employees serving the administration and detention departments of the juvenile court, to select and control those personnel, and to fix their compensation. Id. at 101. Although Weinstein II nowhere makes explicit reference to the St. Louis County Merit System, it is obvious that the provisions of the merit system relating to the determination of the number of juvenile court employees, to the selection and control of such employees, and to the compensation to be paid such employees were directly affected by the decision. The Court in Weinstein II determined that these functions were within the inherent power of the juvenile court:

We are of the opinion that within the inherent power of the Juvenile Court of St. Louis County, subject to the supervisory control of the Circuit Court of St. Louis County . . [citations omitted] is the authority to select and appoint employees reasonably necessary to carry out its functions of care, discipline, detention and protection of children who come within its jurisdiction, and to fix their compensation. In order that the Court may administer justice under the Juvenile Code, it is essential that it control the employees who assist it.

Id. at 102. Weinstein I and Weinstein II read together, indicate that although Mo. Const, art. VI, § 18(e) prohibits the legislature from enacting laws affecting the number and salary of county employees other than judicial officers, the inherent powers of the court itself are not subject to the same limitations. “Inherent powers do not depend upon statutory authorization as their source.” State ex rel. Cain v. Mitchell, 543 S.W.2d 785, 786 (Mo. banc 1976).

Relators argue that the application given the doctrine of inherent power in Weinstein II misinterprets the concept of “inherent power.” Relators cite the statement in Weinstein II that the doctrine of inherent power is to be invoked “only on occasions where necessary personnel and facilities are not provided by conventional methods,” id. at 102, and contend that the merit system is the conventional method for the provision of administrative and detention employees. The language in Weinstein II on which relators place emphasis specifically relates to the failure of conventional sources to “provide necessary funds.” Id. at 102. (Emphasis added.) This language certainly cannot be read out of context to negate the determination that the number, compensation, selection and control of juvenile court employees is within the inherent power of the court. To assert that the county’s assumption of the control of the selection, discipline and physical conduct of the employees of the juvenile court does not encroach on the inherent powers of the juvenile court simply because the merit system is the “conventional method” of providing county employees is to miss the central point of Weinstein II. The court, and not the county, must have control of its employees, so that the county cannot “determine the extent to which the judicial department could perform its judicial functions. . by limiting the number of employees, regardless of need, or by providing for no employees at all.” Id. at 102.

Relators contend that the supervision and maintenance of detention facilities and the supervision of the treatment and discipline of persons in custody is an executive and not a judicial function. Relators argue that the placement of control of the juvenile court’s detention facilities and employees in the juvenile court therefore violates the separation of executive from judicial powers required by Mo.Const. art. II, § 1. This argument attempts to analogize the power to control juvenile facilities to the charter power to control the facilities for and treatment of adult prisoners in the county jail. Relators’ contention ignores the vast difference between the theory and purposes of the juvenile court system under the Juvenile Code and those of the adult penal system. Moreover, our determination in this case that the juvenile court must control and coordinate all aspects of juvenile treatment in order to carry out its duties under the Juvenile Code, and the determination in Weinstein II that control of juvenile court employees is within the inherent power of the juvenile court, require rejection of relators’ claim that detention and treatment of juveniles is an executive function.

The ouster sought by relators is denied and the writ of quo warranto is quashed. Costs will be assessed against relators.

BARDGETT, C. J., and DONNELLY, SEILER, MORGAN and HIGGINS, JJ., concur.

RENDLEN, J., concurs in result.

      . Section 211.161.3, RSMo 1978 provides:
      A county may establish medical, psychiatric and other facilities, upon request of the juvenile court, to provide proper services for the court in the diagnosis and treatment of children coming before it and these facilities shall be under the administration and control of the juvenile court. The juvenile court may appoint and fix the compensation of such professional and other personnel as it deems necessary to provide the court proper diagnostic, clinical and treatment services for children under its jurisdiction.
      Section 211.331.3, RSMo 1978 provides:
      The place of detention shall be in charge of a superintendent. The judge of the juvenile court shall appoint and fix the compensation and maintenance of the superintendent and of any assistants or other personnel required to operate the detention facility. Such compensation and maintenance are payable out of funds of the county.

      . See Mashak v. Poelker, 367 S.W.2d 625, 632 (Mo. banc 1963): “The statutory authority [of the juvenile judge to appoint and fix the compensation of the court’s administrative assistant under § 211.161.3, RSMo 1978] renders nugatory the contention that the expenditures are not authorized under the city charter.”

      . The county’s own action, in promptly removing the juvenile court’s employees from the county merit system in the wake of Weinstein II, belies relators’ contention that Weinstein II is consistent with leaving the employees of the juvenile court under the county merit system. Our decisions do not disturb the agreement between the circuit judges and St. Louis County, by which clerical and nonprofessional employees of the juvenile court are now covered by the county merit system.

      . Relators quote the statement made in Ex parte Hughes, 133 Tex. 505, 129 S.W.2d 270, 273 (1939) that “[u]nder our system there is no such thing as the inherent power of the court, if by that, be meant a power which the court may exercise without a law authorizing it.” The quoted language does not aid relators in this case. It is clear that Missouri does recognize the concept of the inherent power of a court. State ex rel Cain v. Mitchell, 543 S.W.2d 785, 786 (Mo. banc 1976); Weinstein II, 451 S.W.2d at 101-02; Weinstein I, 421 S.W.2d at 255; State ex rel. Gentry v. Becker, 351 Mo. 769, 174 S.W.2d 181, 183 (1943). Hughes involved the attempt to hold the habeas corpus petitioner in contempt of court for his refusal to produce records in an action brought by the state to enjoin usurious lending practices. The case held that the court had no jurisdiction to entertain the action underlying the contempt citation, and the relator was discharged. The language quoted from Hughes was directed toward rejection of the notion that a court has any inherent power to act beyond its constitutional and statutory jurisdiction. No such question of jurisdiction is presented here. The question of whether the juvenile court has the inherent power to control administrative and detention personnel is distinct from questions relating to the scope of its jurisdiction under § 211.031, RSMo 1978.


author: FINCH, Senior Judge.

text:
    STATE ex rel. James Albert TURNBOUGH, Relator, v. The Honorable Carl E. GAERTNER, Judge of the Circuit Court of the City of St. Louis, State of Missouri, Respondent.
    No. 61092.
    Supreme Court of Missouri, En Banc.
    Nov. 14, 1979.
    Ben Ely, Jr., K. Steven Jones, St. Louis, for relator.
    Donald L. Schlapprizzi, Mark F. Haywood, St. Louis, for respondent.
   FINCH, Senior Judge.

This is an original proceeding in prohibition wherein James Albert Turnbough as relator seeks to prevent Judge Gaertner from proceeding further with the case of David L. DeRousse v. St. Louis-San Francisco Railway Company (Frisco) and James Albert Turnbough. That suit, filed in the Circuit Court of the City of St. Louis, contains two counts. Count I seeks recovery from Frisco for injuries sustained in a vehicular accident on December 21, 1977, while DeRousse was an employee of Frisco. Injuries alleged were soft tissue injuries to his head, neck, back and spine and left elbow, plus a brain concussion and aggravation of a pre-existing neck condition. Recovery is sought on the basis of the Federal Employers’ Liability Act, 45 U.S.C., § 51 et seq. (1976). Count II, based on negligence, seeks recovery from Turnbough for injuries allegedly sustained on December 27, 1977, when an automobile operated by Turn-bough collided with an automobile in which DeRousse was a passenger. Injuries alleged were a fractured rib, a strain and sprain of the left leg and hip and aggravation of injuries received in the December 21, 1977 accident.

DeRousse and Turnbough are residents of Cape Girardeau County where both accidents occurred. Frisco has its principal place of business in St. Louis but it operates trains through Cape Girardeau County.

Turnbough filed a motion to sever the two counts and to dismiss Count II for lack of venue. Judge Gaertner overruled both portions of the motion and plans to proceed with trial of the case. Turnbough unsuccessfully sought prohibition in the Missouri Court of Appeals, Eastern District, after which he filed this proceeding. We issued a provisional rule in prohibition. We now make that rule permanent.

Two questions are presented on appeal. Was joinder of Counts I and II permissible under Rule 52.05(a) and does the Circuit Court of the City of St. Louis have venue of the cause of action stated against Turn-bough in Count II? We consider first the question of venue.

Section 508.010 RSMo 1969, the general venue statute, rather than § 508.040, which deals with suits against corporations, has been held to be the applicable statute when suit is brought against a corporation and an individual. State ex rel. Baker v. Goodman, 364 Mo. 1202, 274 S.W.2d 293 (banc 1954). Hence, § 508.010 governs whether there is venue of Count II. It provides in pertinent part as follows:

“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; * * * * * *
(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, * * *”

Venue of Count II is not in the City of St. Louis under § 508.010(1) because Turn-bough does not reside in St. Louis nor was he found and served there. He resides in and was served in Cape Girardeau County. Nor is there venue of Count II under § 508.010(6) because the cause of action against Turnbough accrued in Cape Girar-deau County, not the City of St. Louis.

Respondent’s brief concedes that when the claim of DeRousse against Turnbough is considered separately there is no independent basis for venue thereof in the Circuit Court of the City of St. Louis. However, his position is that there is venue of Count I which contains the DeRousse claim against Frisco and that when Count II is joined in the same petition with Count I, there is venue in the City of St. Louis as to Count II because when there are multiple defendants residing in different counties, § 508.010(2) authorizes suit in the county wherein any one of the defendants resides.

In making this contention respondent relies on Rule 52.05(a) which superceded § 507.040 RSMo 1949 and governs permissive joinder of asserted claims for relief. This position of respondent is predicated on the proposition that by joining two or more separate causes of action in a single petition pursuant to Rule 52.05(a), venue as to all is created in any county wherein any one of the several defendants resides even though there would not have been venue as to one (or more) of the counts if filed separately in that county. The joinder is said to result in venue as to the counts so joined.

We reject this contention. Respondent’s argument ignores the language of Rule 51.-01 which clearly and explicitly states that the Rules of Civil Procedure, of which Rule 52.05(a) is a part, “shall not be construed to extend or limit the jurisdiction of the Courts of Missouri or the venue of civil actions therein.” This limitation is underscored by the Committee Note to Rule 51.-01, promulgated when the rule was first adopted. It observes that even though venue may be procedural rather than substantive within the meaning of Mo.Const. art. V, § 5 which grants rule making authority to the Supreme Court and even though establishment of venue by procedural rule may be permissible, such a determination was avoided by the Court by the disclaimer contained in Rule 51 that venue was not to be established or limited on the basis of the Rules of Civil Procedure. Therefore, assuming, but not deciding, that joinder of Counts I and II was authorized by Rule 52.05(a), that fact would not establish venue as to Count II under the provisions of § 508.010(2). To hold otherwise would mean that, contrary to the express provisions of Rule 51.01, venue as to Count II would be established by means of Rule 52.-05(a) when it would not have existed without such joinder.

Respondent argues that Hager v. McGlynn, 518 S.W.2d 173 (Mo.App.1974), supports the proposition that where there is venue as to one count and there is joinder of another count pursuant to Rule 52.05(a), venue exists as to the count so joined. Such is not the case. Hager involved a situation wherein plaintiff, in separate counts, sued two defendants with whom plaintiff had collided at different times. The suit was filed in Jackson County where both accidents had occurred and where both defendants resided. The issue resolved in Hager was whether joinder of the two claims was desirable and was permissible under Rule 52.05(a). There was no issue as to venue. As a matter of fact the Circuit Court of Jackson County had venue of each claim if asserted separately and hence had venue when they were joined. The case does not support the contention of respondent in this case with respect to venue.

Having so concluded, we need not and do not reach or decide the question of whether joinder of Counts I and II was permissible under Rule 52.05(a).

Count II should have been dismissed. Hence, we make permanent our rule in prohibition against respondent proceeding further with reference to trial of Count II.

DONNELLY, RENDLEN, SEILER, WELLIVER and MORGAN, JJ., and HENLEY, Senior Judge, concur.

BARDGETT, C. J., not sitting.

HIGGINS, J., not participating because not a member of the court when cause was submitted.

      . Rule 52.05(a) provides:
      “(a) Permissive Joinder. All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrences or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or mote defendants according to their liabilities.”

      . The parties do not cite or discuss State ex rel. Garrison Wagner Co. v. Schaaf, 528 S.W.2d 438 (Mo.banc 1975) which holds that third party proceedings are ancillary to the principal action and that it is not necessary to show an independent basis of venue of the third party proceeding before permitting its joinder with the principal action. See Comment, Civil Pro-ceduré — “Ancillary” Venue in Third-Party Practice In Missouri, 41 Mo.L.Rev. 582 (1976). In this case Count II is not ancillary to Count I but is an entirely separate and independent claim. Hence, Garrison Wagner does not require a ruling in favor of respondent in this case.


author: PER CURIAM: WELLIVER, Judge, BARDGETT, Chief Justice, DONNELLY, Judge,

text:
    David W. STEINMAN, Appellant, v. Cornelius E. STROBEL and Donald O. Schnieders, Respondents.
    No. 61245.
    Supreme Court of Missouri, En Banc.
    Nov. 14, 1979.
    Rehearing Denied Dec. 6, 1979.
    Thomas A. Vetter, Dale C. Doerhoff, Jefferson City, for appellant.
    Marvin E. Wright, Columbia, for respondent Schnieders.
    John E. Burruss, Jr., Jefferson City, for respondent Strobel.
   PER CURIAM:

Plaintiff Steinman sued defendants Stro-bel and Schnieders for personal injuries. Strobel was driving a pickup truck in a westerly direction ahead of Steinman’s motorcycle. Steinman was approximately thirty feet behind Strobel’s pickup truck and traveling at an estimated speed of forty-five miles per hour. Schnieders was driving a tractor-trailer in an easterly direction. The road was narrow and all vehicles were approaching a bridge at the bottom of a grade. Stroble slowed his pickup truck. Steinman’s motorcycle collided with the rear end of the pickup truck, and veered into the eastbound lane into collision with the tractor-trailer operated by Schnieders.

Plaintiff alleged that defendant Strobel slowed without adequate timely warning; that respondent Schnieders failed to slacken speed after he knew or should have known that plaintiff was in a position of immediate danger; that both defendants were thus negligent, and their combined negligence caused his injuries. Defendants alleged that plaintiff’s own negligence with respect to speed, lookout, following too closely, driving on the wrong side of the road, etc., was the cause of his injuries.

Plaintiff moved unsuccessfully to strike defendants’ allegations of contributory negligence on the ground that contributory negligence was a “harsh rule which could unfairly place the entire burden of loss” on plaintiff; and for trial of the case on a theory of comparative negligence. After plaintiff’s opening statements, both defendants moved for directed verdict. The trial court sustained the Schnieders motion and overruled Strobel’s motion. The case proceeded to trial and plaintiff’s contributory negligence was included in the submission to the jury. The jury returned a verdict in favor of Strobel and against plaintiff. Plaintiff’s motion for new trial preserved the request for trial on comparative negligence. The trial court overruled the motion for new trial, and plaintiff appealed to the Western District of the Missouri Court of Appeals.

The appeal was transferred prior to opinion to consider again whether a concept of comparative negligence should be judicially adopted in Missouri, a matter previously deemed better suited for legislative action. Epple v. Western Auto Supply Co., 557 S.W.2d 253 (Mo. banc 1977).

A change from contributory negligence to comparative negligence encompasses much more than simply allowing plaintiffs who are partially at fault to recover part of their damages. Numerous questions exist such as whether to retain Missouri’s humanitarian doctrine; and the effect of comparative negligence on other doctrines such as contribution, indemnity and joint and several liability, to name but a few. In the latter respects, see the California experience with judicial adoption of comparative negligence in Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 (1975), and American Motorcycle Assn. v. Superior Court, 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899 (1978), and the comment at 18 Santa Clara Law Review, pp. 780-807 (1978).

This case does not demonstrate appropriate circumstances for judicial adoption of comparative negligence; and the view expressed in Epple v. Western Auto Supply Co., supra, is reaffirmed.

Accordingly, this appeal is retransferred to the Western District of the Missouri Court of Appeals.

RENDLEN, MORGAN and HIGGINS, JJ., concur.

WELLIVER, J., concurs in separate concurring opinion filed.

BARDGETT, C. J., and DONNELLY, J., dissent in separate dissenting opinions filed.

SEILER, J., dissents and concurs in separate dissenting opinion of DONNELLY, J.

WELLIVER, Judge,

concurring.

I concur. This is the first time since coming to the Court that I have had an opportunity to express any opinion on either the doctrine of comparative negligence or the doctrine of relative fault.

Philosophically, I am persuaded that the doctrine of pure comparative negligence, like that of pure relative fault as it was first announced in Missouri Pacific v. Whitehead and Kales, 566 S.W.2d 466 (Mo. banc 1978), is far more attuned to the needs and realities of modern day society than our existing body of tort case law, rules and statutes.

I recognize that this state should not adopt pure comparative negligence across the board without dealing with contributory negligence, the humanitarian doctrine, contribution, indemnity, joint and several liability, res ipsa loquitur, the rear-end doctrine, the doctrine of strict tort liability, the holding of State ex rel. McClure v. Dinwiddie that a plaintiff may choose the defendant he desires to sue, interspousal immunity, The Workmen’s Compensation Law, court rules, instructions, suitable methods for the release of claims where there are multiple defendants, and possibly other matters.

To adopt comparative negligence without undertaking a systematic treatment of this multitude of related issues would be to place the bar on a violent and stormy sea of uncertainty and frustration that would make the post-Whitehead and Kales era seem a serene and placid mountain lake in comparison. Any single opinion that would attempt to deal with all of these issues could only result in a giant legislative enactment by judicial fiat. My inability to find agreement among scholars, judges, lawyers, or my brothers of this court as to the exact form of “comparative negligence” best suited to our social and economic need's also makes me reluctant to do other than concur in the per curiam.

The adoption of pure relative fault in Whitehead and Kales constituted a first step toward the judicial adoption of pure comparative negligence. I interpret our action of this date as a reversal of our prior course which was in the direction of adoption of comparative negligence by judicial action. Having so reversed our course, I believe we should now extricate both the bar and the litigants of this state from the twilight zone of partial pure relative fault created by our prior decisions in Whitehead and Kales and State ex rel. Maryland Heights Concrete Contractors, Inc., v. Ferriss. I believe that we should overrule Whitehead and Kales and return the law of torts in Missouri to whatever degree of stability existed for the one hundred and fifty years prior that decision.

By this opinion I would announce to my former colleagues of the General Assembly that, with respect to comparative negligence, “the ball is now in your court”.

I would urge their most thorough study and consideration of the comparative negligence doctrine as a method of redressing injuries resulting from negligent acts. The legislative process has a superior capability for getting the input of the finest legal scholars, the best trial lawyers, and the consumer public in determining the system of tort law best adapted to our present day social and economic needs. “No area of the law cries out more for a clear policy established by democratically elected representatives.” American Motorcycle Association v. Superior Court, 20 Cal.3d 578, 617, 146 Cal.Rptr. 182, 208, 578 P.2d 899, 925 (1978).

BARDGETT, Chief Justice,

dissenting.

I would adopt a comparative fault system in this case and abandon contributory negligence, last clear chance, and humanitarian doctrines in Missouri.

The purpose of this dissent is to make clear that there is an alternative to the concepts enunciated by Judge Donnelly in his dissenting opinion which is also known as “pure” comparative fault but which does not involve abandonment of joint liability nor permit a person to be joined as a party even though no judgment could be rendered against him.

In the state of California “pure” comparative fault was adopted in Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 (1975), as opposed to other types of comparative negligence systems, such as the one in effect in the state of Wisconsin which prohibits recovery if the claimant is more than fifty percent negligent. In American Motorcycle Assn. v. Superior Court, 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899 (1978), the Supreme Court of California adopted the system of distribution of fault as between tort-feasors very similar to what this court adopted in Missouri Pacific Railroad Co. v. Whitehead & Kales Co., 566 S.W.2d 466 (Mo. banc 1978). In American Motorcycle, supra, the Supreme Court of California dealt with the ancillary matters attending the adoption of a comparative fault system and, inter alia, retained joint liability, but as between tort-feasors allowed the same type of apportionment as this Court allowed in the Whitehead & Kales case. The reader may see those cases for the reasoning and details of the system in effect in California.

Essentially, I would adopt the system as set forth in Li v. Yellow Cab, supra, and American Motorcycle Assn. v. Superior Court, supra.

DONNELLY, Judge,

dissenting.

I would abandon contributory negligence and the last clear chance and humanitarian doctrines as viable concepts in Missouri and would reverse and remand this case for trial under a concept of pure comparative fault.

I am mindful of the classical common law process articulated in R. Bridwell and R. Whitten, The Constitution and the Common Law 13-15 (Lexington, Massachusetts: D. C. Heath and Company, 1977). That process is given flexibility to embrace change by the doctrine “of desuetude, or the repeal of custom by disuse. Just as custom would be gradually introduced and adopted by consent, so might it gradually be abrogated by the ‘tacit consent of all.’ ” Id. at 22.

In James, Comments on Maki v. Frelk, 21 Vand.L.Rev. 891, 895 (1968), it was noted “that juries now do for plaintiffs illicitly what the change [to comparative negligence] would do for them forthrightly. * * * Juries * * * probably speak for the community sense of fairness more faithfully than do legislatures. Consistent jury acceptance of proportional negligence * * * suggests that legislative failure to enact this reform reflects inertia rather than community sentiment.”

I agree. In my view, juries in Missouri have effectually repealed the “all-or-nothing” doctrine of contributory negligence by disuse. Now embraced by general acceptance is the concept that where persons contribute to cause an occurrence, and damage is suffered, each should bear responsibility only in proportion to his fault. As I perceive it, this is the essence of the concept of pure comparative fault.

In Missouri Pacific Railroad Co. v. Whitehead & Kales Co., 566 S.W.2d 466, 474 (Mo. banc 1978), this Court held that the “principle of fairness imbedded within our law compels * * * [the] adoption of a system for the distribution of joint tort liability on the basis of relative fault.” Most significantly, we embraced the concept, as explicated in Rawls, A Theory of Justice, that “in exchange for the opportunity of some undertaking, we each promise all others that we will be liable for the damage which our own negligence in the undertaking has caused.” Id. at 469. Therefore, the essential question in this case narrows to whether the Rawls concept should apply to all parties — defendants and plaintiffs. Of course, it must.

The doctrine of contributory negligence is court-made. Butterfield v. Forrester, 11 East 60, 103 Eng.Rep. 926 (1809). The last clear chance and humanitarian doctrines are court-made. Davies v. Mann, 10 M & W 546, 152 Eng.Rep. 588 (1842); McCleary, The Bases of the Humanitarian Doctrine Reexamined, 5 Mo.L.Rev. 56 (1940). The teaching of Abernathy v. Sisters of St. Mary’s, 446 S.W.2d 599 (Mo. banc 1969) is that we need not defer to the General Assembly in the circumstances of this case.

Accordingly, I would adopt a system of pure comparative fault, as follows:

I. Effect of Contributory Fault.
(a) In an action based on fault to recover damages for injury or death to person or harm to property, any contributory fault chargeable to a claimant diminishes proportionately the amount awarded as compensatory damages for any injury attributable to that claimant’s contributory fault, but does not bar recovery. This rule applies whether or not the claimant’s contributory fault heretofore constituted a defense or was disregarded under applicable legal doctrines, such as the last clear chance and humanitarian doctrines.
(b) “Fault” includes acts or omissions that are in any measure negligent or reckless toward the person or property of the actor or others, or that subject a person to strict tort liability. The term also includes breach of warranty, unreasonable assumption of risk not constituting an enforceable express consent, misuse of a product for which the defendant otherwise would be liable, and unreasonable failure to avoid an injury or to mitigate damages. Legal requirements of causal relation apply both to fault as the basis for liability and to contributory fault.
II. Apportionment of Damages.
(a) In all actions involving fault of more than one person, the court, unless otherwise agreed by all parties, shall instruct the jury to make findings, indicating:
(1) the amount of damages each claimant would be entitled to recover if his contributory fault is disregarded; and
(2) the percentage of the total fault that is allocable to each tort-feasor-party, including claimants. For this purpose the court may determine that two or more persons are to be treated as a single party. The percentages shall total 100%.
(b) A tort-feasor’s percentage of fault shall be taken into consideration in determining the total fault even though judgment cannot be entered against him. Where the evidence warrants it, the court shall add that person as a party solely for the purpose of determining and allocating fault upon a 100% basis.
(c) In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of the person and the extent of the causal relation between the conduct and the damages claimed.
(d) The court shall determine the award of damages to each claimant, and shall state in the judgment the amount which represents each party’s share of the obligation to each claimant in accordance with the respective percentages of fault found, holding each party responsible by judgment only for his apportioned amount. There shall be no set-off between claimants.
(e) The court shall not enter judgment against a tort-feasor-party, in accordance with the percentage of his fault found, if the claim against him is barred by release or by law.

It should be apparent that in adopting a system of pure comparative fault in Missouri I would borrow freely, but selectively, from the Uniform Comparative Fault Act, 12 U.L.A. (1977). See also Wade, A Uniform Comparative Fault Act — What Should It Provide?, 10 Univ. of Mich.J. of L.Ref. 220 (1977).

It should also be apparent that in the usual comparative fault situation I would do away with joint and several liability among tort-feasors held responsible by the trier of fact; they should be liable only severally, and not jointly. See Adams, Settlement After Li: But Is It “Fair”? 10 Pac.L.J. 729, 739-40 (1979). Otherwise, “one defendant could, in derogation of the stated purposes [of pure comparative fault], be apportioned a responsibility for satisfying damages greater than his own proportionate share of fault.” Timmons and Sil-vis, Pure Comparative Negligence in Florida: A New Adventure in the Common Law, 28 Univ. of Miami L.Rev. 737, 778 (1974). See also Note, Multiple Party Litigation Under Comparative Negligence in Kansas— Damage Apportionment as a Replacement for Joint and Several Liability, 16 Washburn L.J. 672 (1977); Note, Reconciling Comparative Negligence, Contribution, and Joint and Several Liability, 34 Wash. & Lee L.Rev. 1159, 1170-71 (1977).

I respectfully dissent.

      . 358 Mo. 15, 213 S.W.2d 127, 131 (1948).

      . § 287.120.1, RSMo 1978.

      . In Maryland Heights, 588 S.W.2d 489, filed September 11, 1979 (Mo. banc) rehearing denied contemporaneously herewith, this Court refused to compel the joinder of decedent’s employer as a third-party defendant in a wrongful death action brought against a construction subcontractor because judgment and recovery against the employer was legally barred under § 287.120.1, RSMo 1978. As pointed out in the dissenting opinion filed by Donnelly, J., in that case, refusing to permit a third party petition against the employer for the purpose of comparing the employer’s fault is inconsistent with the general principles announced in Whitehead and Kales. A parallel problem arises in the wake of Whitehead and Kales in the context of attempts to settle with one of several defendants. In short, the adoption of relative fault in Whitehead and Kales has resulted in a situation in which no attorney in this state can confidently negotiate and draft an effective release of a client or opponent.


author: • HIGGINS, Judge. WELLIVER, Judge, DONNELLY, Judge,

text:
    Fayette P. NEBBITT, Petitioner-Respondent, v. Anthony W. NEBBITT, Respondent-Appellant.
    No. 61413.
    Supreme Court of Missouri, En Banc.
    Nov. 14, 1979.
    Rehearing Denied Dec. 6, 1979.

      James A. Stemmier, St. Louis, for respondent-appellant.
    Fayette P. Nebbitt, pro se.
   • HIGGINS, Judge.

Appeal transferred from the Court of Appeals, Eastern District, after opinion, to review whether the husband pleaded a cause of action for damages in his wife’s action for dissolution of marriage. Affirmed in part and reversed and remanded in part.

Fayette and Anthony Nebbitt' were married June 1, 1976. Two weeks later, Fa-yette filed a petition for dissolution of the marriage and a temporary restraining order excluding her husband from the family home. He cross-petitioned alleging that respondent had defrauded him by misrepresenting her affection by which he was induced to marry her, and that she had used the restraining order to convert his separate personal property. On December 3, 1976, the circuit court dissolved the marriage on the husband’s cross-petition, decreed that he was to receive the property in the family home, and dismissed the cross-petition for damages as failing to state a cause of action.

The cross-petition for damages was in three counts. Count I alleged that in asking the trial court for a temporary restraining order, Fayette falsely represented that Anthony had committed certain acts putting her in fear for herself and children; that she did so asking the court to put him out of the apartment to enable her to steal his property. Appellant claims the court erred in dismissal of this count because it alleges fraud on the court and no court should permit itself to be an instrument of fraud.

Appellant’s complaint under Count I is that because of an alleged lie to the court, he lost his belongings. To be actionable, fraud in the procurement of a judgment for divorce must have been extrinsic or collateral to matters which either were or could have been presented or adjudicated in the original proceedings. Hemphill v. Hemphill, 316 S.W.2d 582 (Mo.1958). In this case consideration of the conduct of defendant in treatment of his wife and children is intrinsic to the dissolution proceeding and is not, therefore, the type of fraud which would warrant setting aside the trial court’s temporary restraining order.

Appellant asserts that Count III of his petition alleges a premarital tort; that it is not ruled by the doctrine of interspousal tort immunity, and the trial court erred, therefore, in dismissing it. He argues that his former wife committed fraud when she misrepresented her love for and intention to live with him as husband and wife; and that this tort was complete before the marriage took place. He posits as damages, not only the loss of his personal property, but expenses in preparation for the marriage as well; and argues further that Count III was erroneously dismissed because it stated a cause of action for fraudulent inducement to marriage.

There are cases which have allowed damages for the fraudulent inducement by one putative spouse of another into a void marital state. See, e. g., Higgins v. Breen, 9 Mo. 497 (1845) and cases cited at 72 A.L.R.2d 956. There are no cases, however, allowing an action for damages where, as alleged here, one spouse has induced another into a valid marriage on the basis of misrepresentation of affection.

Appellant concedes there are no Missouri cases supporting his claim. He cites Piper v. Hoard, 107 N.Y. 73, 13 N.E. 626 (N.Y.Ct. of App.1887) as representative of “the weight of authority from other states supporting] a cause of action for fraud in the inducement of a marriage.” It is inapposite because it dealt with the fraudulent representation by a third party to one spouse that the other spouse owned certain property which, in fact, he did not. Appellant also cites Berry v. Harmon, 329 S.W.2d 784 (Mo.1959) which involved an automobile accident between a man and woman occurring prior to their marriage, and held that an action could be instituted and maintained by the wife against her husband after the parties were married, for injuries received before the marriage. This holding lends no support to appellant’s argument for the existence of a tort of fraudulent inducement to marriage under the circumstances here. Because there is no cause of action in this or any other state for inducement into a valid marriage by misrepresenting affection, the trial court did not err by dismissing Count III of the petition.

Appellant charges it was error to dismiss Count II of his petition which alleged that while the restraining order was in effect, his wife converted his separate personal property and household goods. He argues that regardless of present vitality in the doctrine of interspousal tort immunity, conversion of property is an exception. If the rule were otherwise, he contends, “an unscrupulous spouse could convert money or property with impunity at any time before a divorce decree were rendered.”

Smith v. Smith, 300 S.W.2d 275 (Mo.App.1957) distinguished between “personal torts,” involving injuries to person, reputation, feelings, or body, and “property torts,” which embrace injury or damage to property, real or personal, and held that the doctrine of interspousal tort immunity affected only the former and that a wife could maintain an action against her husband for the wrongful taking of her separate personal property, not only for the recovery of specific items, but, if they were misappropriated and converted, then for their replacement in money by an action in conversion. See also, Ray v. Ray, 336 S.W.2d 731 (Mo.App.1960), which held that a spouse may maintain an action for accounting in connection with a divorce proceeding after a conversion of personal property owned by the entirety; and Coffey v. Coffey, 485 S.W.2d 167 (Mo.App.1972), which held that the husband, although denied a divorce, was entitled to an accounting to set off his share of personal property, held by his wife and him as tenants by the entirety, which allegedly had been sequestered by the wife without his consent.

The foregoing demonstrates that an action exists against a spouse who wrongfully has taken or sequestered the property of the other. The doctrine of in-terspousal tort immunity, last discussed in Ebel v. Ferguson, 478 S.W.2d 334 (Mo. banc 1972), has no application where the tort involved is conversion of a spouse’s separate property. Whether the petitioned-for divorce is granted or denied does not affect the right to sue for conversion.

Count II of appellant’s petition alleged that before the decree of dissolution and while the temporary restraining order was in effect, his wife “wrongfully converted, appropriated and embezzled all of [his] personal and household goods.” This states a cause of action for damages for conversion and the trial court, therefore, erred in dismissing it. Smith v. Smith, supra.

Accordingly, dismissal of Counts I and III of the cross-petition is affirmed; the dismissal of Count II is reversed and the case is remanded.

BARDGETT, C. J., and RENDLEN and MORGAN, JJ., concur.

WELLIVER, J., concurs in separate concurring opinion filed.

SEILER, J., concurs as to Count II, concurs in result as to Count I, dissents as to Count III.

DONNELLY, J., dissents in separate dissenting opinion filed.

WELLIVER, Judge,

concurring.

I concur in the result reached by the majority. The cause is reversed and remanded for further proceedings on Count II of appellant’s cross-petition (alleging conversion) because, as the principal opinion correctly points out, a claim for conversion has long been recognized as an exception to the interspousal tort immunity doctrine in Missouri. However, I have reservations about the treatment given appellant’s Count I claim alleging fraud in the procurement of a temporary restraining order which caused plaintiff damage.

The authority cited in the opinion of the majority for affirming the dismissal of appellant’s Count I claim is not persuasive. The principal opinion states:

Appellant’s complaint under Count I is that because of an alleged lie to the court, he lost his belongings. To be actionable, fraud in the procurement of a judgment for divorce must have been extrinsic or collateral to matters which either were or could have been presented or adjudicated in the original proceedings. Hemphill v. Hemphill, 316 S.W.2d 582 (Mo.1958).

Hemphill involved a petition filed by the guardian of an insane woman seeking to set aside a decree of divorce on the alleged ground of fraud in its procurement, and seeking an accounting from the administra-trix of the alleged husband’s estate. It is apparent that appellant’s claim for damages for alleged fraud is quite distinct from a direct attack on the validity of a divorce. Appellant does not appeal the order of December 3, 1976, granting a decree of dissolution, but instead appeals the dismissal of the three counts of his cross-petition.

In my view, the dismissal of Count I was proper because that count fails to state a cause of action for fraud. The elements necessary to constitute actionable fraud were outlined in Latta v. Robinson Erection Co., 363 Mo. 47, 248 S.W.2d 569, 576 (banc 1952) as follows:

that a representation was made as a statement of fact, which was untrue and known to be untrue by the party making it, or else recklessly made; that it was made with intent to deceive and for the purpose of inducing the other party to act upon it; and that he did in fact rely on it and was induced thereby to act to his injury and damage.

(Emphasis supplied.) Appellant’s Count I, in contrast, alleges that appellant’s bride:

falsely represented to the Court that Respondent committed certain acts putting her in fear of him, all the time knowing that such representations were untrue, and at the same time asking the Court to rely on said representations, which the Court did, in granting a restraining order which put Respondent out of the family apartment.

(Emphasis supplied.) These allegations do not allege intent to deceive appellant, intent to induce appellant’s reliance, or appellant’s reliance on the representations — rather, it is the court that is alleged to have been induced to rely on the allegedly false statements.

The dismissal of Count I on the authority of Hemphill is unacceptable if it makes this Court appear to be avoiding the question whether interspousal tort immunity should be abrogated in Missouri. Of the three counts in appellant’s cross-petition, it is only Count I that even colorably presents the interspousal tort immunity issue.

I am convinced that this case is not the proper vehicle for reconsideration of the doctrine of interspousal tort immunity articulated in the line of cases of which Ebel v. Ferguson, 478 S.W.2d 334 (Mo. banc 1972) is a part. Respondent’s petition was stricken by the trial court and judgment of dissolution entered on appellant’s cross-petition as sanctions for respondent’s failure to comply with discovery proceedings. Respondent did not file any briefs opposing appellant’s attack on the interspousal tort immunity doctrine, either in the court of appeals or in this Court. Without the full development of issues that adversary argument allows, making a change in the law with such far-reaching implications as the abrogation of interspousal tort immunity is not appropriate. Moreover, because Count I of appellant’s cross-petition fails to state a cause of action in fraud, any attempt by this Court to address the immunity question in this case would be mere dicta.

DONNELLY, Judge,

dissenting.

In my view, the principal opinion effectually overrules Ebel v. Ferguson, 478 S.W.2d 334 (Mo. banc 1972), insofar as Ebel, supra, bases the doctrine of interspousal tort immunity on “the common law concept that a wrongful act between spouses does not give rise to a cause of action.” Id. at 336.

I respectfully dissent.

      . It appears that Fayette absconded with all such property; and she has no brief on this appeal.

      . A spouse’s separate property is recognized in Missouri’s Dissolution of Marriage Law at § 452.330 RSMo.