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SCHOTT v. COLONIAL BAKING CO.

March 17, 1953

SCHOTT
v.
COLONIAL BAKING CO. ET AL.



The opinion of the court was delivered by: John E. Miller, District Judge.

The amount in controversy, exclusive of interest and costs, exceeds the sum of $3,000.

The plaintiff filed his complaint against the above-named defendants on January 15, 1953, in which he alleged:

That on January 26, 1950, at about 5:00 a.m. he was driving a 1949 International truck-tractor pulling a tandem refrigerator semi-trailer in a southerly direction on U.S. Highway 65 about 12 miles north of Pine Bluff, Arkansas, when said truck trailer struck the rear of a large semi-trailer attached to a truck-tractor owned by the defendant, Arkansas Motor Freight Lines, Inc., which was parked without lights, flares, flagmen or other warning on the right lane of said highway, and plaintiff was injured as a result of said collision.

That the injury to plaintiff was directly and proximately caused by the combined negligence of the defendants in that the Colonial Baking Company, acting through its employee, Jack Freeman, who, a short time before the collision, had negligently gone to sleep while driving a truck owned by the defendant, Colonial Baking Company, and allowed the said truck to overturn and block the highway near the point of the collision; that the defendant, Arkansas Motor Freight Lines, Inc., acting through its employee, whose name is unknown to plaintiff, parked its truck-tractor and large semi-trailer on the right lane of said paved highway to the north of the overturned Colonial Baking Company truck, and neither of the defendants placed any flares or warning lights of any kind on the highway to warn plaintiff that said road was blocked, as required by the laws of Arkansas and the rules of the Interstate Commerce Commission, and failed to warn plaintiff in any manner that said road was blocked which was their duty to do in the exercise of reasonable care.

Then follow allegations specifically describing the injuries and the extent of the damage suffered by plaintiff.

On February 4, 1953, the Arkansas Motor Freight Lines, Inc., filed a motion to quash service of summons on the grounds that the said defendant corporation had been dissolved on October 31, 1951, in the manner provided by law, and on January 15, 1953, the date of the attempted service of summons, had no general manager and no officers upon whom such summons could be served.

On February 28, 1953, the Court sustained the motion to quash the service of summons as to the defendant, Arkansas Motor Freight Lines, Inc.

On February 7, 1953, prior to the entry of the order quashing the service of summons as to Arkansas Motor Freight Lines, Inc., the defendant, Colonial Baking Company, filed its motion for leave to file a third party complaint and to bring in the third party defendants. In the motion it was alleged that the Arkansas Motor Freight Lines, Inc., was dissolved in the manner provided by law on October 31, 1951, and that the certificate of dissolution was filed with the Secretary of State of Arkansas and with the County Clerk of Sebastian County on November 1, 1951; that R.A. Young, Jr., Roy C. Martin, J.C. Gibson and Thomas Harper were at the time of the dissolution of said corporation the directors of the same and that because of the dissolution of the corporation they became trustees under and by virtue of Sections 64-807 and 64-808, Arkansas Statutes 1947, Annotated, and that as such trustees they became subject to suit in the name of said dissolved corporation. This motion was granted by the Court on February 13, 1953, over the objections of the third party defendants.

Following the filing of the third party complaint against the said individuals as liquidating trustees of Arkansas Motor Freight Lines, Inc., and also Arkansas Motor Freight Lines, Inc., the third party defendants filed their motion for summary judgment of dismissal of the third party complaint.

The original defendant, Colonial Baking Company, as third party plaintiff, in its third party complaint has alleged:

That the complaint of the plaintiff, Alex Schott, alleges joint and concurrent negligence on the part of the respective agents and truck drivers of the third party plaintiff and third party defendant, Arkansas Motor Freight Lines, Inc., then an acting corporation and now a dissolved Arkansas corporation, resulting in alleged injuries and damage to plaintiff in a truck collision on U.S. Highway 65 in Jefferson County, Arkansas, on January 26, 1950, as more specifically alleged in paragraphs 3, 4 and 5 of the original plaintiff's complaint, a copy of which is attached to the third party complaint.

That the third party plaintiff is without information sufficient to form a belief as to the truth of the allegations in plaintiff's complaint with respect to the negligence alleged on the part of the agent and truck driver of Arkansas Motor Freight Lines, Inc.; and therefore, upon information and belief adopts by reference the allegations of negligence on the part of the agent and driver of Arkansas Motor Freight Lines, Inc., specifically set out in plaintiff's complaint.

That in the event the allegations as to negligence on the part of the agent and truck driver of Arkansas Motor Freight Lines, Inc., should be sustained by the evidence introduced in a trial of this cause and judgment is rendered in favor of plaintiff against the third party plaintiff for the total amount of plaintiff's damages resulting from such alleged concurrent negligence of the third party plaintiff's agent and driver and the agent and driver of Arkansas Motor Freight Lines, Inc., and the third party plaintiff discharges its common liability or pays more than its pro rata share thereof, there will accrue to the third party plaintiff a right of contribution against the third party defendants in the amount of the pro rata share of the third party defendants in such common liability to the plaintiff, and to the extent that such common liability shall have been discharged by the third party plaintiff.

In the motion for summary judgment of dismissal of the third party complaint, the third party defendants have alleged:

Plaintiff does not have and cannot assert a cause of action arising from the facts alleged in his complaint against the defendant, Arkansas Motor Freight Lines, Inc., because service of summons herein upon said defendant is defective and insufficient to give the Court jurisdiction over plaintiff's alleged claim against said defendant, and proper summons cannot now be issued and proper service thereof cannot now be had because plaintiff's complaint shows on its face that his alleged cause of action arose and accrued in the State of Arkansas on January 26, 1950, more than three years prior to the date of the filing of this motion, and, within three years following January 26, 1950, plaintiff did not properly commence his cause of action against said defendant and same is now barred against the said Arkansas Motor Freight Lines, Inc., and the trustees by reason of the Statute of Limitations in force and effect in the State of Arkansas.*fn1

That even if plaintiff's cause of action against Arkansas Motor Freight Lines, Inc., were not barred by the Statute of Limitations, the alleged cause of action is wholly barred against the said Arkansas Motor Freight Lines, Inc., for the reason that on January 27, 1950, Arkansas Motor Freight Lines, Inc., filed its complaint in the Circuit Court of Jefferson County, Arkansas, wherein it was the plaintiff, and, Jack White, doing business as City Produce Company and Jack White, doing business as Jack White Produce Company, and plaintiff herein, Alex Schott, were defendants; that said cause was docketed as No. 12623 in the Jefferson Circuit Court. In that action Arkansas Motor Freight Lines, Inc., sought to recover damages to its personal property sustained in the same collision alleged and described in the plaintiff's complaint herein; that proper service of summons was had upon the defendants in that action, including Alex Schott, the plaintiff herein, who, together with the defendant, Jack White, caused the action to be removed from the Jefferson Circuit Court to the United States District Court for the Eastern District of Arkansas, Western Division, at Little Rock, Arkansas, where the cause was docketed as Civil Action No. 2059; that the said Alex Schott, plaintiff herein, and Jack White et al., filed answers denying the allegations of the complaint and thereafter on August 23, 1950, the said Court entered an order dismissing the said action with prejudice to the plaintiff Arkansas Motor Freight Lines, Inc.; that from and after the filing of the said action and prior to the order of dismissal with prejudice as aforesaid the said Alex Schott, as a defendant therein, wholly failed to file therein or assert against Arkansas Motor Freight Lines, Inc., any cause of action or claim to recover damages arising from the facts and circumstances at issue therein, and by reason of the failure to file and assert any counterclaim against Arkansas Motor Freight Lines, Inc., in the said action, any claim of the plaintiff, Alex Schott, against the Arkansas Motor Freight Lines, Inc., is now forever and wholly barred.

That because plaintiff's alleged cause of action against Arkansas Motor Freight Lines, Inc., its directors and trustees is wholly barred for the reasons above alleged, the defendant, Colonial Baking Company, third party plaintiff herein, is not entitled to assert any claim for contribution or otherwise against this defendant in a third party proceeding or by way of cross-claim.

The attorneys for the third party defendants and the attorneys for the third party plaintiff have filed excellent briefs in support of their respective contentions.

The third party defendants contend (1) that they are not now parties defendant to the claim of the plaintiff and that plaintiff has no claim which he can assert against them, and (2) that since the plaintiff has no cause of action against the third party defendants, the third party plaintiff has no claim for contribution against them because the Uniform Contribution Among Tortfeasors Act of Arkansas, Sections 34-1001 to 34-1009, inclusive, Arkansas Statutes 1947, Annotated, contemplates the existence of a right of action by plaintiff against the third party defendant or defendants.

The third party plaintiff contends (1) that assuming the allegations of the plaintiff's complaint and the third party complaint are true, a "common liability" existed at the time of the accident and thereafter, but that the liabiliy of Arkansas Motor Freight Lines, Inc., was subsequently extinguished by the voluntary action or inaction of the plaintiff herein, and (2) that the failure of the plaintiff, Alex Schott, to after, but that the liability of Arkansas Motor Freight Lines, Inc., was subsequently destroy his right of action ab initio but ex post facto, and could not destroy the third party plaintiff's right of contribution against Arkansas Motor Freight Lines, Inc., for its pro rata part of any liability that the third party plaintiff may be required to discharge and pay to plaintiff for damages sustained by him in a collision caused by the concurrent negligence of the third party plaintiff and third party defendants.

The primary issue thus raised by the contentions of the parties is whether a right of contribution exists, prima facie, between alleged joint tort-feasors where there was prima facie a common liability at the time the plaintiff's alleged cause of action arose but no common liability at the time the third party complaint asserting the right of contribution was filed.

The third party plaintiff in its brief concedes that the original plaintiff, Alex Schott, no longer has a cause of action against the third party defendants; however, the reasons which induce this concession should be discussed because of the bearing they have upon the decision of the ultimate issue raised by the motion for summary judgment on the third party complaint.

The cause of action in the instant case arose on January 26, 1950, the date of the accident, and to this day the plaintiff, Alex Schott, has not "commenced" an action against the third party defendants.

Section 37-206, Arkansas Statutes 1947, Annotated, requires tort actions such as the one herein involved to be commenced within three years after the cause of action accrues. Section 27-301, supra, provides that a civil action is commenced by the filing of a complaint and causing a summons to be issued ...


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