Russell v. Community Hospital Ass'n

• Decision Date: 10 June 1967
• Docket Number: No. 44786,44786
• Citation: 199 Kan. 251,428 P.2d 783
• Court: Kansas Supreme Court
• Parties: John M. RUSSELL, Appellee, v. COMMUNITY HOSPITAL ASSOCIATION, Inc. and the Nuns of the Third Order of St. Dominic, a Corporation, d/b/a Central Kansas Medical Center, Third-Party Plaintiffs, Appellants, v. DONDLINGER AND SONS CONSTRUCTION COMPANY, Inc. and John A. Shaver, Robert I. McKay and John D. Smutz, a Partnership, d/b/a Shaver & Company, Third-Party Defendants, Appellees.

Page 783

428 P.2d 783

199 Kan. 251

John M. RUSSELL, Appellee, v. COMMUNITY HOSPITAL ASSOCIATION, Inc. and the Nuns of the

Third Order of St. Dominic, a Corporation, d/b/a

Central Kansas Medical Center, Third-Party Plaintiffs, Appellants, v. DONDLINGER AND SONS CONSTRUCTION COMPANY, Inc. and John A.

Shaver, Robert I. McKay and John D. Smutz, a

Partnership, d/b/a Shaver & Company,

Third-Party Defendants, Appellees.

No. 44786.

Supreme Court of Kansas.

June 10, 1967.

Syllabus by the Court

1. Although it is the purpose of K.S.A. 60-214(a) to permit the entire controversy to be determined in a single proceeding, it is only the liability of the third-party defendant to the original defendant in the action for the original defendant's liability to the plaintiff that is to be determined.

2. In the absence of express contract, the general rule is that there is no contribution between joint tort-feasors. But where they are not in pari delicto and their negligence is substantially different, not merely in degree but in character, it is generally recognized that indemnity may be awarded.

3. Where the pleadings in third-party practice disclose that the negligence of the third-party defendant may prove to be the primary or active cause of the injury and the original defendant, as the third-party plaintiff, would be entitled to indemnity, the third-party complaint is not one designed to exact contribution between joint tortfeasors, but one designed to seek indemnity from the third-party defendant by reason of his primary liability, and the third-party complaint comes within the provisions of K.S.A. 60-214(a).

4. The provision in K.S.A. 60-214(a), authorizing any party to move for dismissal of a third-party claim, does not grant the trial court discretionary power on the third-party defendant's motion to dismiss a third-party complaint, where the third-party complaint is properly filed in the action.

Warren H. Kopke, Great Bend, argued the cause and was on the brief, for third-party plaintiffs, appellants.

Herbert Rohleder, Great Bend, argued the cause, and Tudor W. Hampton and Jerry M. Ward, Great Bend, were with him on the brief, for third-party defendants, appellees.

M. John Carpenter and John M. Russell, Great Bend, were on the brief, for appellee, John M. Russell.

SCHROEDER, Justice:

This is an appeal from an order of the district court of Barton County, Kansas, dismissing a third-party petition on motion of the third-party defendants.

The only question here for consideration is whether the trial court erred in sustaining the third-party defendants' motion.

John M. Russell (plaintiff-appellee) filed a petition in the district court of Barton County, Kansas, on the 4th day of April, 1966, instituting an action for the recovery of damages against the Community Hospital Association, Inc. and The Nuns of the Third Order of St. Dominic, a Corporation, d/b/a Central Kansas Medical Center (third-party plaintiffs-appellants), for injuries alleged to have occurred on or about the 24th day of October, 1964, when it is alleged he missed his footing and fell on certain outdoor steps which led to the parking lot. In his petition he alleged negligence on the part of the appellants 'in the construction, operation and maintenance of said stairway,' upon which his alleged fall occurred.

The appellants on the 5th day of May, 1966, answered, specifically denying that they constructed said stairway or that they were negligent in the construction, operation and maintenance of the stairway. They further alleged that 'if said stairways were improperly constructed, the responsibility therefor lies with the General Contractor and Architect designing and constructing said stairways.'

Thereafter on the 8th day of May, 1966, the appellants filed their third-party petition wherein reference is made to the allegations of the petition concerning negligence in the construction of the stairway in question. The appellants then allege 'that the design and construction of the stairway in question was handled, designed and constructed by the defendants herein referred to as the Third-Party Defendants. That said hospital facility had recently been completed by the said Third-Party Defendants herein named, and that the negligence as alleged by plaintiff if any there be, and if same is found to exist, is properly the negligence and responsibility of the Third-Party Defendants herein named.'

The third-party defendants named were Dondlinger and Sons Construction Company, Inc., the general contractor, and John A. Shaver, Robert I. McKay and John D. Smutz, a Partnership, d/b/a Shaver & Company, the architects (third-party defendants-appellees).

On the 26th day of May, 1966, the third-party defendants moved to dismiss the third-party petition filed against them on the ground that it failed to state facts constituting a claim against them, and asserting that under the law of Kansas they cannot be made parties to the pending litigation upon the petition of the third-party plaintiffs.

After due notice the trial court heard the motion on the 7th day of June, 1966, and sustained it dismissing the third-party petition. Appeal has been duly perfected.

The third-party defendants argue the petition filed by the plaintiff in this action is drawn upon the theory of negligence only, and that the third-party petition is based solely upon negligence. They argue the plaintiff has chosen whom he desires to look to for recovery, and has not made any attempt at claiming recovery against the third-party defendants, so that the end result depends upon whether the appellants were or were not negligent. The third-party defendants contend if the appellants can prove the cause to have been in other parties, then they are not liable.

The third-party defendants rely solely upon the authority of Alseike v. Miller, 196 Kan. 547, 412 P.2d 1007. Their brief consists entirely of extended quotations taken from the syllabus and opinion in the Alseike case.

The section of the civil code authorizing third-party practice is K.S.A. 60-214. The applicable portion of this statute reads:

'(a) When defendant may bring in third party. At any time after commencement of the action a defendant, as as a third-party plaintiff, may cause a summons and complaint 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. Leave to make the service need not be obtained if the third-party complaint is filed not later than five (5) days after the answer to the complaint is served. Otherwise leave must be obtained on motion upon notice to all parties to the action. The person served with the summons and third-party complaint, hereinafter called the third-party defendant, shall make his defenses to the third-party plaintiff's claim as provided in section 60-212 and his counterclaims against the third-party plaintiff and cross-claims against other third-party defendants as provided in section 60-213. The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff's claim. The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. The plaintiff may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff, and the third-party defendant thereupon shall assert his defenses as provided in section 60-212 and his counterclaims and cross-claims as provided in section 60-213. Any party may move for severance, separate trial or dismissal of the third-party claim. A third-party defendant may proceed under this section against any person not a party to the action who is or may be liable to him for all or part of the claim made in the action against the third-party defendant.'

Here the third-party petition was filed within five days after the answer to the petition was served, as provided by the foregoing section of the statute.

We are not at liberty to speculate as to what the evidence may eventually establish concerning the alleged negligence of the appellants, but must view the case in its present posture-prior to discovery proceedings and prior to pretrial. We are informed in appellants' brief that they engaged the third-party defendants, Shaver & Company, as architects to design and supervise the construction of the medical center. They also engaged third-party defendants, Dondlinger and Sons, to build the structure. The completion of the structure was accomplished approximately March 1, 1964, and the injuries complained of in the plaintiff's petition occurred on October 24, 1964.

Kansas adheres to the common-law rule that there is no right of contribution between joint tort-feasors. (Rucker v. Allendorph, 102 Kan. 771, 172 P. 524.) The court in Alseike recognized this fact and further recognized that the legislature in adopting our present code of civil procedure declined to create this right as initially recommended by the advisory committee. (See, J.C.B., November, 1962, Special Report, Recommendations, p. 38.)

In order to come within the provisions of 60-214(a), supra, the third-party plaintiffs' claim against the third-party defendants must be such that the latter are or may be liable to the third-party plaintiffs for all or part of plaintiff's claim against them. In the Alseike case it was determined that the third-party action would not lie when the basis of the third-party plaintiffs' claim was designed to seek contribution from a joint tort-feasor. In the opinion the court said:

'* * * Contribution being forbidden there is no way in which the third-party defendants are or may become liable to defendant for all or part of plaintiff's claim against defendant. * * *' (196 Kan. p. 550...