concurring in result.
This case is on all fours with Simon v. Kansas City Rug Company, 460 S.W.2d 596 (Mo.1970). The petition declares that the relator was “the original and primary wrongdoer” and that defendant acted “without knowledge of the likelihood of injury, and therefore its conduct was passive and its liability constructive and secondary. ...” The trial court, in apparently following Simon, was not exceeding its jurisdiction, and its decision should not be upset in prohibition. It is not necessary at this point to deal with the effect of Missouri Pacific Railroad Co. v. Whitehead & Kales Co., 566 S.W.2d 466 (Mo. banc 1978) on statutes of limitation.
I am not prepared to say that Whitehead & Kales has the effect of applying Simon to all claims for contribution or indemnity. Nor would I foreclose ruling on a clear statute of limitations issue in prohibition. Prohibition, however, is not appropriate to review a decision wholly consistent with Simon and dealing with only a part of the problem. The parties may of course proceed by way of appeal at an appropriate time, and may seek reconsideration of Simon.
The principal opinion goes much further than necessary in expressing views on factual situations not now before the Court. Whitehead & Kales was forged by the unanimous action of this Court, “steadfastly consistent with the dictates of our common law tradition and the principles of equity embedded therein_” 566 S.W.2d at 473. I want to retain the freedom to mold the common law with the assistance of principles of equity to the myriad statute of limitations problems which may be presented under Whitehead & Kales, as they are presented in proper cases. Those sought to be held as indemnitors or contributors are entitled to equitable consideration, just as persons named as principal defendants are. The Court might well find an obligation to present newly recognized claims promptly. I would not foreclose or even cast doubt upon the availability of a laches defense in such cases. It is not my purpose to express an opinion as to how cases should eventually be decided, but simply to make it clear that I consider the questions open.
Particularly disturbing and unnecessary is the endorsement of the proposition that “the third party’s claim arises, and the statute of limitations commences to run, at the time the defendant in the original suit pays more than his or her share of the proportionate judgment.” (emphasis supplied). The applicable statute, then, is presumably ten years under § 516.110(3), RSMo 1978, for want of any other applicable statute of limitations.1 If payment is the ultimate triggering event it is not difficult to imagine situations in which the statute would not run for fully 20 years after the accident or injury complained of. I see no reason for the Court to commit itself to a holding of the breadth suggested, or even to give a blanket endorsement to the proposition that “The wording of Rule 52.11(a) clearly contemplates no time limitation upon the right to file the third party pro*770ceeding.” We should be free to take note of, and to correct, inequitable situations as presented.
The Court has deviated from the prior law in establishing new actions, not known to the common law. The law is judge made. I do not fault it for this reason; most of our common law is judge made. See Gustafson v. Benda, supra, p. 28 (Billings, J., concurring). But I would like to maintain the freedom to consider adjustments and restrictions on newly created actions. The same authority which created the actions is entitled to take steps to ensure just and equitable treatment for all.
Although I did not participate in the decision in Gustafson v. Benda, supra, I understood that the Uniform Comparative Fault Act was used to provide minimum guidance in comparative negligence cases, and was not being totally adopted as legislation. I see no warrant for substituting it for our usual statutes of limitation.
Just as every cloud has a silver lining, the majority opinion may have a fortunate byproduct in the demise of the recent rule of State ex rel. Morasch v. Kimberlin, 654 S.W.2d 865 (Mo. banc 1983), which holds that the writ of prohibition would be used only for the purpose of ruling on jurisdictional questions, and not for the purpose of furthering interlocutory appeals. I considered that holding unnecessary for the decision of the matter then before the Court, and unwise in its constriction of the Court’s power to issue and determine original remedial writs (Mo. Const., Art. V, Sec. 4.1). Here the Court makes use of a prohibition action to announce broad rules of law which the majority considers desirable, even though the trial court had the unquestionable jurisdiction to render the decision which was subjected to our provisional rule. Although I do not agree with the broad pronouncements of the principal opinion, and believe that the case can and should be resolved on much narrower grounds, I note that the writ is now available for the purpose of making legal pronouncements any time a majority of the Court wants to use it for that purpose.
It may be suggested that the bench and the bar are in need of “guidance” in the full implication of Whitehead & Kales and Gustafson. There are many interesting and important legal questions, in this area and others, which are subject to uncertainty, and it is often tempting to answer them in advance of the need for doing so in the setting of a particular case. But common law courts should strive to adhere to the tradition of the common law, by avoiding overexpansive holdings, and not answering questions which have not been fully briefed and presented to them in an adversary setting.
For the reasons stated, and without joining in the principal opinion, I agree that the provisional rule should be quashed.
. 516.110,-Within ten years:
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(3) Actions for relief, not herein otherwise provided for.