State ex rel. Tarrasch v. Crow, 62472

• Decision Date: 13 October 1981
• Docket Number: No. 62472,62472
• Citation: 622 S.W.2d 928
• Parties: STATE of Missouri ex rel. Ernest TARRASCH, Relator, v. The Honorable John C. CROW, Judge, Circuit Court of Greene County, Respondent.
• Court: Missouri Supreme Court

Page 928

622 S.W.2d 928

STATE of Missouri ex rel. Ernest TARRASCH, Relator, v. The Honorable John C. CROW, Judge, Circuit Court of Greene County, Respondent.

No. 62472.

Supreme Court of Missouri, En Banc.

Oct. 13, 1981.

Glen A. Burkart, Springfield, for relator.

Rodney E. Loomer, Meredith B. Turner, Springfield, for respondent.

SEILER, Judge.

In this case, filed here after respondent indicated he would deny relator's motion for summary judgment in the underlying damage suit, wherein relator is one of the defendants, we are asked to make absolute our preliminary writ in prohibition. The case turns on the effect to be given a particular release between a plaintiff and one of multiple defendants on the right of the remaining non-settling defendant to bring a cross-claim or third party impleader for indemnity against the settling defendant. The cross-claim against relator is couched in terms of seeking full indemnity and alternatively in terms of comparative and relative fault responsibilities for the injuries suffered by plaintiff. In fact, as will be seen below, this particular cross-claim relates solely to full recovery of, or full reimbursement for, the damage caused by a successive tortfeasor which the original tortfeasor may have to pay the plaintiff by reason of the rule that the person causing the initial injury is liable for aggravation of the injury due to the subsequent negligence of the attending physician. The case comes before us on the pleadings, so we will assume the various charges of negligence and damages are true. ¹

The action out of which this proceeding arose was brought on October 3, 1978 against relator Ernest Tarrasch and two other defendants, Ronnie McVay and Carl Durremann, by the plaintiff, Kenny Hemphill. ² It is there alleged that on May 29, 1969, defendant McVay, a bus driver for the Lebanon, Missouri School District R-3, negligently left his school bus unattended after it broke down as a result of mechanical failure. While McVay was absent from the bus, defendant Durremann, then a nine-year-old fifth-grader, negligently threw a ruler which struck Hemphill, likewise a nine-year-old fifth-grader, in the eye. Relator Tarrasch, an ophthalmologist, also a defendant in the underlying suit, treated Hemphill's injured eye during the period May 29 through August 26, 1969. Hemphill charges relator with thirteen separate acts of medical malpractice, including relator's failure to remove the injured eye and to administer steroids which would have prevented sympathetic ophthalmia. It is alleged that as a result of the negligence of relator, sympathetic ophthalmia developed, causing blindness in the uninjured eye as well as the injured one.

Both McVay and Durremann filed cross-claims against relator, seeking determination of their respective relative fault and responsibility with respect to apportionment of plaintiff's damages among them.

Thereafter, on April 11, 1980, plaintiff Hemphill and relator executed an agreement and covenant not to sue in which relator paid Hemphill the limit of his malpractice insurance policy $50,000 to be released from all claims and actions arising out of the incident of May 29, 1969. ³ McVay also settled with Hemphill for McVay's insurance policy limit of $100,000 and dismissed, with prejudice, his cross-claim against Tarrasch.

Plaintiff Hemphill's action against relator was then dismissed on July 22, 1980. Relator, pursuant to his agreement with Hemphill, then moved for summary judgment on the cross-claim filed against him by defendant Durremann. Attached to relator's motion and incorporated therein by reference was a copy of the April 11, 1980 agreement and covenant not to sue.

The trial judge issued a memorandum indicating his intention to deny relator's motion for summary judgment. Relator then instituted proceedings in prohibition to prevent the judge from issuing an order in accordance with his memorandum. According to the trial court's memorandum, the trial court did not believe that one tortfeasor (Tarrasch), by settling with plaintiff, could cut off another tortfeasor's (Durremann) right to obtain contribution from Tarrasch for the latter's proportionate share of the fault for plaintiff's injury. Durremann was not a party to the settlement between plaintiff and Tarrasch, and it was "logically unsound" to hold that Durremann's right "can be impaired thereby." Relator takes the contrary position that because he has obtained a release (covenant not to sue) from Hemphill with regard to any claims Hemphill may have against relator, defendant Durremann should not be permitted to proceed in a cross-claim against relator for contribution or indemnification.

The arguments of both parties generally centered around the case of Missouri Pacific Railroad v. Whitehead & Kales Co., 566 S.W.2d 466 (Mo. banc 1978) and whether or not it was applicable. In Whitehead & Kales, this court adopted "a system for the distribution of joint tort liability on the basis of relative fault." Id. at 474. That case took us out of an all or nothing indemnity system, based on active versus passive negligence, into a system of partial indemnity, based on relative fault, with each tortfeasor bearing his fair share. It established a method of working out partial indemnity or contribution based on relative fault between or among joint or concurrent tortfeasors. ⁴ See Stephenson v. McClure, 606 S.W.2d 208, 211 (Mo.App.1980). The end result is a sharing of damages between tortfeasors in proportion to fault. Whitehead & Kales, however, involved tortfeasors whose negligence was concurrent with respect to the whole harm suffered. In Whitehead & Kales, the facts were that all the harm to the plaintiff, Robert Sampson, occurred when he fell to the ground from the third deck of an auto rack. The fall came about by reason of Whitehead & Kales negligently designing and manufacturing the auto rack by reason of the omission of a portion of a foot rail on the third deck and Missouri Pacific negligently failing to warn plaintiff of the defect.

Whitehead & Kales did not have in it any aspect of medical malpractice by a successive tortfeasor for which the original tortfeasor could be held liable under the rule stated in the first paragraph of this opinion of extension of proximate cause to encompass the act of the doctor. In the instant case, we have the negligence of the bus driver in leaving the bus, followed by the students becoming unruly and one of them (Durremann) throwing the ruler and injuring plaintiff in one eye, causing damage thereto, and finally the subsequent malpractice of the doctor, resulting in loss of the other eye and causing additional damage, over and above that caused by the earlier acts and omissions of the bus driver (McVay) and the boy who threw the ruler (Durremann). Relator and Durremann are not true joint or concurrent tortfeasors. "Their acts were independent and successive, not joint and concurrent." State ex rel. Normandy Orthopedics, Inc. v. Crandall, 581 S.W.2d 829, 831 n. 1 (Mo. banc 1979). "(T)hey were not joint tortfeasors; they were acting independently of each other; their several wrongs were committed at different times; and the tort of each, being several when committed did not become joint because its consequences united with the consequences of the other." Staehlin v. Hochdoerfer, 235 S.W. 1060, 1062 (Mo.1921).

As said earlier, Durremann is seeking by his cross-claim against relator Tarrasch (the doctor) to obtain full indemnity for whatever portion of the damages which may be awarded plaintiff in the underlying damage suit against Durremann was due to relator's subsequent malpractice in the treatment of plaintiff. Relator, of course, cannot be liable for the original harm to plaintiff inflicted by Durremann, but only for the additional harm caused by his own negligence in treatment. State ex rel. Baldwin v. Gaertner, 613 S.W.2d 638, 640 (Mo. banc 1981). Under plaintiff's petition, Durremann and McVay, however, are liable to plaintiff Hemphill for the damages arising from both the original injury (throwing the ruler and injuring one eye) and the subsequent injury caused by relator's malpractice (loss of the uninjured eye, resulting in total blindness), see Boehmer v. Boggiano, 412 S.W.2d 103, 108 (Mo.1967); Schumacher v. Leslie, 360 Mo. 1238, 1245-46, 232 S.W.2d 913, 917 (banc 1950); Staehlin v. Hochdoerfer, 235 S.W. 1060, 1062 (Mo.1921); State ex rel. Blond v. Stubbs, 485 S.W.2d 152, 154 (Mo.App.1972); Restatement (Second) of Torts §§ 433A and 457 (1965); W. Prosser, Law of Torts § 52 at 321 (4th ed. 1971), the reasoning being that the action of the initial tortfeasor is deemed to be the proximate cause of the aggravation, and the subsequent negligent medical treatment is not considered to be an insulating intervening cause.

Although in such cases the initial tortfeasor is held liable for the total injuries to the plaintiff, the courts have held that as against the doctor (i. e., the successive tortfeasor), the initial tortfeasor is not justly chargeable with the damages from the aggravation and is entitled to indemnity or contribution therefor.

The case of Gertz v. Campbell, 55 Ill.2d 84, 302 N.E.2d 40 (1973), is a good illustration, both as to the facts and reasoning of the court. Gertz filed suit against Campbell, alleging that Campbell negligently drove his automobile into Gertz, who was standing on the shoulder of the road. Campbell then filed a third party action against H. M. Snyder, the physician who treated Gertz, alleging malpractice in his treatment of Gertz and seeking indemnity for any damages which might be assessed against Campbell under Gertz's complaint which was attributable to the malpractice of Dr. Snyder. The third party complaint against the doctor alleged that after Gertz sustained the injuries from Campbell's automobile, Gertz was admitted to the emergency room of the hospital where he was examined by Snyder. It was...