(dissenting),
I am unable to concur in the majority opinion for two reasons: First, I am convinced that it is in irreconcilable conflict with Clark’s Adm’x v. Rucker, Ky., 258 S.W.2d 9; and second, the opinion distorts *952some of the Federal Rules of Civil Procedure. Ordinarily, I would not feel inclined to express my dissent from an interpretation of the Federal Rules of Civil Procedure, notwithstanding my disagreement with the views of the majority. PIow-ever, in this case, the majority opinion may constitute precedent for a similar interpretation of comparable provisions of Kentucky’s new Rules of Civil Procedure.
The Clark opinion was rendered less than three months prior to the majority opinion in this case, and the petition for rehearing in that case was overruled by an order entered the same day that the majority opinion here was rendered. The views expressed and the principles announced in the two opinions are so diametrically opposed one to the other that both cannot be right. For example, the Clark opinion, although not expressly overruling Vaughn’s Adm’r v. Louisville & N. R. Co., 297 Ky. 309, 179 S.W.2d 441, 152 A.L.R. 1060, so completely abandons the holding of the court in that case that its authority is destroyed. Notwithstanding that fact, the majority opinion says that this case should be governed by the theory announced in the Vaughn case.
The majority opinion seeks to distinguish the present case from Brown Hotel Co. v. Pittsburgh Fuel Co., 311 Ky. 396, 224 S.W.2d 165, upon the nebulous ground of the difference in the procedural rules of practice prevailing in the Federal Courts and those in effect in this State under the Civil Code. A portion of the court’s charge to the jury in the Federal Court action is quoted in support of the statement that the city’s cross-claim was tried in that court. The court’s charge does not support such a conclusion. An instruction in substantially identical terms was given to the jury in the Brown Hotel and the Clark cases and was followed by a verdict against both defendants, as in the present case.
Rule 13(g) of the Federal Rules of Civil Procedure permits a defendant to cross-claim against a co-party upon any claim arising out of the transaction or occurrence that is the subject matter of the original action, and permits the cross-claim to include the claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of the claim asserted in the original action. Where cross-claims have been asserted, the court may, in furtherance of convenience and to-avoid prejudice, hold a separate trial of any claim or cross-claim. Rule 42(b). The judgment entered in a separate trial of one claim does not dispose of or affect the cross-claim. Rule 13(i).
The judgment of the Federal Court entered upon the trial of the case of Frances Willard Stone against Gish Realty Company and the City of Central City makes no. adjudication whatever concerning the claim asserted by the City on its cross-claim against Gish. That the failure to do so was no mere oversight is evidenced by the fact that the Federal Court subsequently dismissed the cross-claim on the City’s motion, specifically reciting by its order that the dismissal was “without prejudice to any further claim or action by the City of Central City, Kentucky, against the Gish Realty Company.” Implicit in that order is the recognition that the cross-claim was still pending and had not been concluded by the original trial. The erroneous assumption that the cross-claim had been litigated and determined in the Federal Court is completely refuted by this order.
I think the trial held in Federal Court did nothing more than determine the claim asserted in the original complaint. The issue of primary and secondary liability between the City and Gish was neither submitted to the jury nor determined by any order of the Federal Court. Under my construction of the Federal Rules, the issue-raised on the cross-claim was and could be properly reserved. Not having been determined by the Federal Court, I think the claim asserted by the cross-claim could be subsequently made the subject of a separate-action. For that reason, I would affirm the-judgment of the lower court.
Justice MILLIKEN joins me in this dis~sent.