McMillan v. Jayhawk Const. Co., 42134
| Decision Date | 08 April 1961 |
| Docket Number | No. 42134,42134 |
| Citation | 360 P.2d 1082,188 Kan. 113 |
| Parties | Roy G. McMILLAN and Nadine A. McMillan, Appellants. v. JAYHAWK CONSTRUCTION COMPANY, Inc., Defendant, and The Sargent Excavating Company, Inc., Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
In an action to recover for damage to plaintiffs' residence alleged to have resulted from excessive charges of dynamite used in excavating rock for a sewer ditch, the record is examined and, as set forth in the opinion, it is held that under G.S.1949, 60-3309, and G.S.1959 Supp. 60-3314a, the appeal was taken in time so as to render orders striking allegations from the second and third amended petitions reviewable; and further held that such petitions stated facts sufficient to constitute a cause of action for punitive damages and that the allegations in question were improperly stricken.
E. H. Hatcher, Topeka, argued the cause, and B. J. Lempenau, Topeka, was with him on the brief for appellants.
Ernest J. Rice, Topeka, argued the cause and was on the brief for appellee.
This is an action to recover for damage to plaintiffs' residence alleged to have resulted from excessive charges of dynamite used in excavating rock for a sewer ditch. Plaintiffs appeal from orders striking certain allegations from their second and third amended petitions.
The story as told by the first amended petition, which was filed on November 19, 1959, is as follows:
Plaintiffs are husband and wife, and own and reside in their home in Topeka. On or about September 1, 1958, defendant construction company was engaged in constructing a sewer line running about 100 feet west of their home, and employed defendant excavating company to excavate the ditch for the sewer pipe. It was alleged that the excavating company, for the purpose of speeding the work, used heavy and dangerous charges of dynamite with wanton and reckless disregard of injury to plaintiffs' property; that rocks were thrown against their house and through the bathroom window; that the ground was shattered and cracked, causing large cracks in the basement walls, which were theretofore sealed and water resistant; that the basement now fills to overflowing with every rain; and that plaintiffs requested the workmen to cease using heavy charges of dynamite, but they refused to do so until the sheriff's office was called and an officer sent out to stop them. As a result of the foregoing, plaintiffs suffered damage to their home and basement in the sum of $3,000, and damage from the loss of use of their besement in the sum of $360. It was further alleged that they should be allowed punitive damages in the sum of $3,000, due to defendants' wanton and willful negligence. The prayer sought recovery in the amount of $6,360.
On November 27, 1959, defendant excavating company filed a motion to make the first amended petition definite and certain in seven particulars. On the same date it also filed a motion to strike certain portions of the first amended petition. The record does not show any ruling on this motion to strike, but does show that on December 11, 1959, the motion to make definite and certain was sustained as to the last four grounds thereof, the effect of which ruling was that plaintiffs were directed to make their first amended petition more definite and certain by setting forth (1) wherein defendant excavating company acted with wanton and reckless disregard; (2) where, in relation to plaintiff's home, the ground was shattered and cracked; (3) matters concerning the sealed and water-resistant condition of the basement walls, and (4) the elements making up the alleged damage to the house.
The foregoing order also gave plaintiffs twenty days in which to file an amended petition.
On December 14, 1959, plaintiffs filed their second amended petition containing allegations similar to those in their first amended petition, and in addition alleged that with the knowledge of defendants, and at their direction, dangerous charges of dynamite were discharged; that defendants knew, or should have known, that such charges so discharged would cause the ground to shake and vibrate about plaintiffs' basement, causing injury thereto, and that plaintiffs orally informed defendants' employees that the explosions from the charges of dynamite were causing their house to shake and vibrate, resulting in damage, and asked them to desist, which defendants refused to do. Then appear further allegations with respect to the damage caused to the basement walls as the result of the blasting, and these two further allegations:
'Defendants continued to use the same charges of dynamite for the purpose of speeding up the work and reducing their cost of construction, with wanton and reckless disregard of the injury that would result to the plaintiffs.
* * *
* * *
'Plaintiffs should be allowed punitive damages in the sum of $3,000.00.'
On January 6, 1960, defendant excavating company filed a motion to strike and expunge from the files the second amended petition on the ground it did not comply with the order of December 11, 1959, requiring plaintiffs to make their first amended petition definite and certain.
Also, on January 6, 1960, defendant excavating...
To continue reading
Request your trial