Safeway Stores, Inc. v. City of Raytown ( 1982 )

WELLIVER, Judge,

concurring.

I concur.

The issue in this case having most far-reaching implications is the permissive, rather than mandatory, language of Rule 52.11, which provides in part that “a defending party, as a third-party plaintiff, may cause a summons and petition to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him.” (Emphasis added.)

I have already indicated my belief that our decision in Missouri Pacific Railroad v. Whitehead & Kales Co., 566 S.W.2d 466 (Mo. banc 1978), effectively overruled State ex rel. McClure v. Dinwiddie, 358 Mo. 15, 213 S.W.2d 127 (Mo. banc 1948), which permitted a plaintiff to decline to accept a proffered defendant. Parks v. Union Carbide Corp., 602 S.W.2d 188, 196 (Mo. banc 1980) (Welliver, J., dissenting). I would now urge that we refer Rule 52.11 to our rules committee for consideration of whether we should make the rule mandatory rather than permissive. A mandatory rule would further the goal of judicial economy, get everyone into a single lawsuit, achieve consistency of result, and in fact implement the doctrine of fairness that both Whitehead & Kales and the principal opinion recognize. It also would eliminate any question of due process.