Campbell v. Preston

• Decision Date: 08 June 1964
• Docket Number: No. 50262,No. 2,50262,2
• Citation: Campbell v. Preston, 379 S.W.2d 557 (Mo. 1964)
• Parties: Thomas M. CAMPBELL, Plaintiff, v. Albert PRESTON, Jr., Defendant-Cross-Claimant-Appellant, Rebecca Beeman, William Bradley, and Marie Palmer, Defendants-Cross-Defendants-Respondents
• Court: Missouri Supreme Court

Page 557

379 S.W.2d 557

Thomas M. CAMPBELL, Plaintiff, v. Albert PRESTON, Jr., Defendant-Cross-Claimant-Appellant Rebecca Beeman, William Bradley, and Marie Palmer Defendants-Cross-Defendants-Respondents.

No. 50262.

Supreme Court of Missouri, Division No. 2.

June 8, 1964.

Wm. Coleman Branton, James E. Grier, Kansas City, for defendant, cross-claimant-appellant, Albert Preston, Jr., M.D., Brewer, Myers & Branton, Kansas City, of counsel.

Jerome W. Seigfreid, Edwards, Seigfreid & Runge, Mexico, Mo., for respondent William Bradley.

William H. Sanders, Dean F. Arnold, Thomas I. Osborne, Kansas City, for respondent Palmer, Caldwell, Blackwell, Sanders & Matheny, Kansas City, of counsel.

Clark A. Ridpath, Kansas City, for respondent Beeman, Moody & Ridpath, Kansas City, of counsel.

STORCKMAN, Presiding Judge.

This is an appeal from an order dismissing a cross-claim filed pursuant to Civil Rule 55.49, V.A.M.R. in an action to recover for the wrongful death of plaintiff's wife, Edith S. Campbell, who died from the effects of a drug alleged to have been negligently prescribed and administered to her while she was a patient in St. Luke's Hospital in Kansas City.

The sole defendant in the original petition was Albert Preston, Jr., a medical doctor who prescribed the drug. Thereafter, an amended petition was filed joining as defendants William Bradley, an intern employed by St. Luck's Hospital, Rebecca Beenman and Marie Palmer, both registered nurses also employed by the hospital. These added defendants are alleged to have had a part in administering the drug which Dr. Preston prescribed. The petition is separated into three counts with one prayer for relief which seeks a $25,000 judgment against all the defendants.

The defendants Beeman, Bradley, and Palmer filed separate motions to dismiss the amended petition for failure to state a claim and because as to them the plaintiff's claim was barred by the one-year statute of limitations. In addition to an answer, the defendant Preston filed a cross-claim against his co-defendants Bradley, Palmer, and Beeman by which he sought to have judgment rendered against his co-defendants for all amounts that might be adjudged against him in favor of the plaintiff. The cross-defendants filed separate motions to dismiss the cross-claim of defendant Preston alleging generally that the cross-claim failed to state a claim upon which any relief could be granted and that the claim as to them was barred by the one-year statute of limitations. Mrs. Campbell died March 13, 1961, and the amended petition was filed February 25, 1963.

On June 11, 1963, the trial court entered its orders sustaining the separate motions of the defendants Beeman, Bradley, and Palmer to dismiss plaintiff's first amended petition and the cross-claim of the defendant Preston. The plaintiff's amended petition was dismissed without prejudice but the dismissal was stated in the order to be a final judgment as to the defendants Beeman, Bradley, and Palmer. The cross-claim of the defendant Preston was also 'dismissed without prejudice', and the dismissal was designated a 'final judgment'. The orders of dismissal did not specify the grounds upon which they were granted.

The plaintiff did not appeal from the judgment dismissing his petition as to the defendants Beeman, Bradley, and Palmer. The case is before us on the appeal of the cross-claimant Preston who presents the contentions that his cross-claim states a claim for indemnity and that it is not barred by the statute of limitations. The respondents Beeman, Bradley, and Palmer in general contend that the cross-claim fails to state a cause of action in that no facts were alleged to establish a primary duty owing by the intern and the nurses to Dr. Preston and because the cross-claimant's own pleadings establish that the intern and the nurses were employees of the hospital and not of Dr. Preston and that the alleged negligence of the intern and the nurses did not expose the defendant Preston to liability under the doctrine of respondeat superior.

This court has jurisdiction of the appeal because the amount involved exceeds $15,000 in that the sum for which the appellant seeks indemnity is $25,000 as shown by plaintiff's petition. Crouch v. Tourtelot, Mo., 350 S.W.2d 799, 802 . See also Federal Practice and Procedure, Rules Edition, Barron and Holtzoff, Vol. 1A, Sec. 392, pp. 547-550.

Civil Rule 55.49 provides that: 'A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein, or relating to any property that is the subject matter of the original action. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.' Our cross-claim rule is the same as Federal Rule 13(g). Civil Rule 52.10, regarding the third-party practice, and Civil Rule 55.45, concerning counterclaims, are related in purpose to Civil Rule 55.49 but cover different factual situations.

In his brief and written argument, the appellant has narrowed the issues considerably with respect to the grounds on which he seeks to proceed with his cross-claim against the respondents. He asserts that his cause of action based upon a claim of indemnity depends upon the existence of a principal and agent relation between the appellant and the respondents. He concedes that he is not entitled to relief under his cross-claim unless he is free from active and primary negligence and is not in pari delicto with the respondents. In his brief the appellant states his position in this fashion: 'Pursuant to the foregoing rule [55.49], the appellant elected to file a cross-claim against the respondents stating that if, as plaintiff claims, the proximate cause of the plaintiff's injury or damage was solely and exclusively acts or omissions of the respondents while acting as the agents of the appellant, then respondents were liable and should indemnify appellant. Thus, in his cross-claim, the appellant sought relief only if it were found that his liability to plaintiff was based on respondeat superior, i. e., that he was liable to plaintiff on account of the negligence of his agents, the respondents.'

As a general rule, indemnity is allowed in favor of one who is held responsible solely by imputation of law because of his relation to the actual wrongdoer, as where an employer is vicariously liable for the tort of an employee or in favor of one who was under only a secondary duty where another was primarily responsible, but as between joint tortfeasors or persons in pari delicto, contribution rather than indemnity is the right available. McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., Mo., 323 S.W.2d 788, 793 . With a somewhat different emphasis, it has been stated that 'a person who without any fault on his part is exposed to liability and compelled to pay damages on account of the negligence or tortious act of another' has a right of action against the active tortfeasor on the theory of an implied contract of indemnity. 42 C.J.S. Indemnity Sec. 21, p. 596. To the same effect, see Busch & Latta Painting Co. v. Woermann Const. Co., 310 Mo. 419, 276 S.W. 614, 619 ; Central Surety & Insurance Corp. v. Hinton, 233 Mo.App. 1218, 130 S.W.2d 235, 238 ; Hunter v. De Luxe Drive-In Theaters, Mo App., 257 S.W.2d 255, 259; Barb v. Farmers Ins. Exchange, Mo., 281 S.W.2d 297, 304 ; Joshmer v. Fred Weber Contractors, Mo.App., 294 S.W.2d 576, 588 ; State ex rel. Siegel v. McLaughlin, Mo.App., 315 S.W.2d 499, 507 [4-6]; Kansas City Southern Ry. Co. v. Payway Feed Mills, Inc., Mo., 338 S.W.2d 1, 5 [1, 2]. In Restatement of the Law Second, Agency 2d, Sec. 401, pp. 239-240, the rule is stated in this way: 'Unless he has been authorized to act in the manner in which he acts, the agent who subjects his principal to liability because of a negligent or other wrongful act is subject to liability to the principal for the loss which results therefrom.' See also State ex rel. Algiere v. Russell, 359 Mo. 800, 223 S.W.2d 481, 483 .

The corollary of these statements of the rule is that the right of indemnity does not exist if the alleged indemnitee authorized the act which proved to be negligent or wrongful and is directly at fault so that his liability does not arise solely by imputation of law because of his relation to the actual wrongdoer.

The requirements for pleading a cross-claim are the same as other claims for relief and are set out in Civil Rule 55.06 as follows: 'A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim or third-party claim, shall contain (1) a short and plain statement of the facts showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled. If a recovery of money be demanded, the amount shall be stated. Relief in the alternative or of several different types may be demanded.'

In determining the...