State ex rel. Blond v. Stubbs

• Decision Date: 07 September 1972
• Docket Number: No. KCD,KCD
• Citation: 485 S.W.2d 152
• Parties: STATE of Missouri ex rel. Barton S. BLOND and Anne Blond, Relators, v. The Honorable Tom J. STUBBS, Respondent. 25972.
• Court: Missouri Court of Appeals

Page 152

485 S.W.2d 152

STATE of Missouri ex rel. Barton S. BLOND and Anne Blond, Relators, v. The Honorable Tom J. STUBBS, Respondent.

No. KCD 25972.

Missouri Court of Appeals, Kansas City District.

Sept. 7, 1972.

Richard F. Adams, Slagle & Bernard, Kansas City, for relators.

Roy A. Larson, Jr., Sprinkle, Carter, Larson & Hanna, Kansas City, for respondent.

ORIGINAL PROCEEDING IN PROHIBITION

WASSERSTROM, Judge.

This proceeding is before the court on a writ of prohibition to test the jurisdiction of the respondent circuit court to drop three of the defendants as parties under Rule 52.06 V.A.M.R.

The case arises from injuries suffered by relator Barton Blond, on March 31, 1969, occasioned by alleged defects in a doorway in a building operated by defendant Tenth and Main Corporation. Relators, plaintiffs in the court below, allege that as a result of those injuries relator Barton Blond was treated successively by each of the three defendant doctors. The first of these latter defendants is Dr. Adelman who rendered treatment from the date of the initial injuries until April 1, 1969, which treatment relators allege was negligently performed and thereby aggravated the initial injury. Relator Barton Blond then went to Dr. Abella for treatment from April 10 to 21, 1969, which treatment the relators allege was also negligent and further aggravated the basic injuries. Then from April 21, 1969 until February, 1970, treatment was rendered by Dr. Overesch, which treatment relators allege was also negligent and still further aggravated the original injuries.

Relators' first amended petition in the trial court is in four counts. Count I is by Barton Blond against the three doctors for damages due to their alleged malpractice. Count II is by Barton Blond against Tenth and Main Corporation, for the original alleged negligence in maintenance of the building doorway. Count III is by Anne Blond, wife of Barton Blond, against the three doctors for loss of consortium. Count IV is by Anne Blond against Tenth and Main Corporation for loss of consortium.

After filing answers, Drs. Overesch and Abella filed motions under Rule 52.06 V.A.M.R. to be dropped as parties defendant. The court below announced its intention to sustain those motions and also to drop Dr. Adelman as a party on the court's own motion, all pursuant to Rule 52.06. It was with reference to that threatened action that relators applied to this court for a writ of prohibition.

In their application for the write, relators claim that the court below is threatening to act in excess of its jurisdiction and should therefore be prohibited because: (a) all four defendants have been properly joined under Rule 52.06; and (b) since there was no misjoinder, the trial court has no jurisdiction to drop any defendant under Rule 52.06. Respondent controverts both of these propositions, thus sharply delineating the issues here for determination.

I

The requirements for joinder of parties under Rule 52.05 are: (a) the claims against the defendants must arise out of the same transaction, occurrence or series of transactions or occurrences; and (b) some question of law or fact common to all of the defendants must be present. Both of those requirements are met by the allegations of the amended petition herein.

The key factor in this case, so far as joinder of parties is concerned, is the doctrine that a tort-feasor is liable not only for his own original acts of negligence, but also for any acts of medical malpractice which occur in the normal course of treatment for the original injury. This factor constitutes the rim encircling all of the various aspects of this case and all of the four defendants. More to the point, this rule of law gives the reason why there is a common occurrence or series of occurrences and why there are common questions of fact and law affecting all defendants.

The principle referred to is firmly established by the decisions of the courts of this State, which hold that a defendant who negligently causes a personal injury is liable also for the harm resulting from the manner in which normal medical, surgical or hospital services are rendered, it being deemed that such medical services flow naturally from the original injury. The original negligence is to be considered as a proximate cause of aggravation due to negligence in the furnishing of the medical services, and the medical treatment is not considered to be an insulating intervening cause. Staehlin v. Hochdoerfer, Mo., 235 S.W. 1060; Parkell v. Fitzporter, 301 Mo. 217, 256 S.W. 239; Schumacher v. Leslie, en Banc, 360 Mo. 1238, 232 S.W.2d 913; Boehmer v. Boggiano, Mo., 412 S.W.2d 103; Wilson v. Hungate, Mo., 434 S.W.2d 580; Persten v. Chesney, Mo.App., 212 S.W.2d 469. The Missouri rule stated in the foregoing cases is in accord with the law generally. 2 Restatement of Torts 2d, § 457, p. 496.

By reason of the operation of the foregoing rule, defendant Tenth and Main Corporation is liable not only for its own alleged negligence, but also for the alleged negligence of all four doctors; likewise, defendant Adelman is liable, not only for his own alleged negligence, but also for that of the two succeeding doctors; likewise, defendant Abella is liable for his own alleged negligence and also that of defendant Overesch. The net result of all this is that the alleged negligence of Dr. Overesch is a common occurrence for which all four defendants have potential liability, and all questions of fact and law pertaining to the treatment of Barton Blond by Dr. Overesch become questions common to all four defendants. This alone satisfies the two requirements for joinder of parties under Rule 52.05. Moreover, the ultimate physical condition in which Barton Blond found himself in February, 1970, was the result to which the acts of all four defendants had contributed. The acts of all four are logically related as a 'series of occurrences' and the extent of the final disability is clearly a question common to all defendants.

This conclusion supporting the propriety of joinder has been reached under similar circumstances in State ex rel. Smith v. Weinstein, Mo.App., 398 S.W.2d 41, l.c. 43--44. In that case the plaintiff suffered an injury in an automobile accident. That injury was aggravated when the ambulance in which he was being taken to a hospital collided with still another automobile. The court held that the driver in the original accident can be joined under Rule 52.05 in a suit also naming as defendants the ambulance driver and the driver of the second automobile. In answer to an argument that the two accidents were so separate that they did not constitute the same occurrence or series of occurrences, the court answered:

'In our view the deciding factor in the case at the bar is whether or not under the facts alleged, defendant Wilma N. Smith can be held liable to plaintiff for the injuries received in the second accident or for the aggravation of the injuries sustained in the first accident. If so her joinder with others as defendants was proper.

'A person who has received an injury due to the negligence of another is entitled to recover all damages proximately traceable to the primary negligence, including subsequent aggravation which the law regards as a sequence and natural result likely to flow from the original injury, even though there may have been some intervening agency contributing to the result. 15 Am.Jur., Damages, Sec. 83. Thus it has been held that the original wrongdoer who negligently causes injury to another may be held liable to the latter for the negligence of a physician who treats such person where such negligent treatment results in the aggravation of such injuries. Elliott v. Kansas City, 174 Mo. 554, 74 S.W. 617. The reason for the rule is that the employment of a physician is to be regarded as a natural consequence of the original wrong, because the necessity for such employment was imposed on the injured party by the fault of the original wrongdoer. It is also stated that such liability is founded in sound reasons of public policy. Restatement, Torts, p. 1215, Sec. 457, (Com. (b); Elliott v. Kansas City, supra.

'This is the view expressed in Lucas v. City of Juneau, 127 F.Supp. 730, 15 Alaska 413, a case very similar to the one at bar. There the question presented was whether the original tort-feasor and the owner of an ambulance whose driver's negligence caused a collision while conveying the plaintiff to a hospital, which accident aggravated the previous injuries, could be joined as defendants under Rule 20(a), Fed.Rules Civ.Proc., which rule is identical in its terms with our Civil Rule 52.05. The court held that the original tort-feasor was liable for the aggravation of the injuries received in the second accident, and it and the owner of the ambulance were properly joined as defendants, since there was a single occurrence giving rise to a right to relief, which presented questions of fact common to both.'

See also Gordon v. Manzella, D.C.W.D.Mo., 270 F.Supp. 40, l.c. 42, and the cases therein cited.

II

We now come to the more difficult question as to whether parties who have been properly joined as defendants under Rule 52.05 may be dropped as parties under Rule 52.06. No Missouri case has been cited on this point by either party and our independent research discloses none. However, Missouri Rule 52.06 is parallel to the similar Federal Rule 21 covering the same subject. There has been considerable legal writing and judicial interpretation of Federal Rule 21, and we can look to those sources for guidance to a proper interpretation of Missouri Rule 52.06.

The standard texts on the Federal Rules of Civil Procedure strees the historical background underlying all the rules concerning parties, and also the interrelationship between the various rules. Thus, in Federal Practice and Procedure, Wright and Miller, Civil, Vol. 7, § 1681, p. 319, the authors state:

'Except in cases...