Campbell v. Preston, No. 50262

• Court: United States State Supreme Court of Missouri
• Writing for the Court: STORCKMAN; EAGER, J., and HUNTER; LEEDY
• Citation: 379 S.W.2d 557
• Decision Date: 08 June 1964
• Docket Number: No. 50262,No. 2
• Parties: Thomas M. CAMPBELL, Plaintiff, v. Albert PRESTON, Jr., Defendant-Cross-Claimant-Appellant, Rebecca Beeman, William Bradley, and Marie Palmer, Defendants-Cross-Defendants-Respondents

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.

Page 558

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

Page 559

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...