Allman v. Bird

• Decision Date: 03 March 1962
• Docket Number: No. 42499,42499
• Citation: Allman v. Bird, 189 Kan. 331, 369 P.2d 387 (Kan. 1962)
• Parties: Florence ALLMAN, Appellant, v. Jesse BIRD, Appellee.
• Court: Kansas Supreme Court

Page 387

369 P.2d 387

189 Kan. 331

Florence ALLMAN, Appellant, v.Jesse BIRD, Appellee.

No. 42499.

Supreme Court of Kansas.

March 3, 1962.

Syllabus by the Court

1.In an action for personal injuries the trial court overruled a motion to strike an affirmative defense from an answer, and on appeal from such order it is held: The order is not final within the contemplation of the code of civil procedure, and it is therefore not appealable.

2.Rulings on motions to strike, regardless whether such motions have been sustained or overruled, rest in the sound discretion of the trial court and are not appealable under G.S.1949, 60-3302 and 60-3303, unless they are final, affect a substantial right, or in effect determine the action.

Cyrus Leland and George A. Lows, Olathe, argued the cause and were on the briefs, for appellant.

Howard E. Payne, Olathe, argued the cause, W. C. Jones, Robert P. Anderson and H. Thomas Payne, Olathe, were with him on the briefs, for appellee.

SCHROEDER, Justice.

This is an action for damages sustained by the plaintiff while water skiing alleged to have been caused by the negligence of the defendant in operating a motor boat.The case has previously been to this court on appeal in Allman v. Bird, 186 Kan. 802, 353 P.2d 216, on a question of pleading.The instant appeal (still at the pleading stage of the case) is from an order of the trial court overruling the plaintiff's motion to strike the defense of assumption of risk from the defendant's answer, and also from an order of the trial court overruling plaintiff's motion to make such allegations in the answer more definite and certain.

The controlling question is whether the plaintiff has an appealable order.

The plaintiff(appellant) by her second amended petition filed on June 14, 1960, after having successfully appealed to this court in Case No. 41,903, Allman v. Bird, supra, seeks to recover damages from the defendant(appellee) for injuries she received in water skiing while the defendant was operating a motor boat in the Lake of the Ozarks, near Warsaw, Missouri.In her first count recovery is sought on the ground of negligence, specifying the various acts.By the second count she seeks recovery of punitive or exemplary damages on the ground of gross and wanton negligence.By the third count she seeks damages on behalf of her husband for the loss of her services in operating a beach resort on the Lake of the Ozarks, near Warsaw, Missouri.

The trial court required the defendant to make his original answer filed more definite and certain by setting forth the facts constituting certain alleged affirmative defenses.In his amended answer the defendant made certain admissions, denied generally the rest of the allegations in the plaintiff's petition, alleged that the plaintiff's cause of action was governed by the laws of the state of Missouri, pleaded specific facts which he alleged constituted contributory negligence, and pleaded the affirmative defense of assumption of risk as follows:

'VI.Defendant further answering herein alleges the fact to be that Plaintiff had full knowledge of the hazards incident to engaging in the sport of skiing, particularly the hazards encountered in 'skiing double', and the employment of double ski tow ropes of different lengths.

'That notwithstanding said knowledge upon the part of said plaintiff, Plaintiff voluntarily engaged in said sport and voluntarily assumed the risk and hazards incident to engaging in said sport, and the dangerous procedure used by Plaintiff at said time and place, in engaging in said sport.'

By appropriate allegations the answer joined issues and set up defenses to each of the other counts in the petition.

Thereupon the plaintiff moved to strike the above quoted allegations from the answer for the reason that they did not state facts sufficient to constitute defenses to counts one and three respectively.Appeal has been perfected from the order of the trial court overruling this motion, and from an order overruling the plaintiff's motion to make the above quoted allegations more definite and certain by describing in detail the 'hazards' mentioned in said paragraphs and the 'dangerous procedure' claimed by the defendant to have been used by the plaintiff.

It is apparent the appellant herein was attempting to force the appellee to plead in his answer whether the plaintiff assumed the risk of the defendant's acts of negligence.(Page v. City of Fayette, [1938]233 Mo.App. 37, 116 S.W.2d 578;Hathaway v. Evans, [Mo.App., 1950]235 S.W.2d 407;and see, Fred Harvey Corporation v. Mateas, [U.S.C.A., 9th Cir., 1948] 170 F.2d 612;andIsaacson v. Jones, [U.S.C.A., 9th Cir., 1954] 216 F.2d 599.)

Motions to strike and to make definite and certain rest in the sound discretion of the trial court, and rulings thereon are not appealable under G.S.1949, 60-3302 and 60-3303, unless they affect a substantial right and in effect determine the action.(Axe v. Wilson, 150 Kan. 794, 96 P.2d 880;Lee v. Johnson, 186 Kan. 460, 350 P.2d 772;andKlepikow v. Wilson, 189 Kan. 66, 366 P.2d 800.)

Although an independent appeal does not lie from an order overruling a motion to make definite and certain, such an order is reviewable under the provisions of G.S.1959 Supp. 60-3314a, notwithstanding the fact that such order may have been made more than two months before an appeal therefrom is taken, provided an appeal by the aggrieved party is timely perfected from a judgment or some other appealable order.(Standard Steel Works v. Crutcher-Rolfs-Cummings, Inc., 176 Kan. 121, 269 P.2d 402;andFirst National Bank of Topeka v. United Telephone Ass'n, 187 Kan. 29, 353 P.2d 963.)Our inquiry must therefore be directed to the order of the trial court overruling the appellant's motion to strike the defense of assumption of risk from the appellee's answer.

The appellant takes the position that assumption of risk is an affirmative defense, and that the facts constituting the defense must be pleaded as fully as a cause of action in a petition.(38 Am.Jur., Negligence, § 279, p. 968;and 41 Am.Jur., Pleading, § 157, p. 402.)She argues the appellee has failed to plead facts sufficient to constitute the defense of assumption of risk in his answer, and the order of the trial court overruling her motion to strike the defense is tantamount to a ruling on a demurrer.(Citing, In re Estate of Shirk, 188 Kan. 513, 363 P.2d 461;Johnson v. Killion, 179 Kan. 571, 297 P.2d 177;andCollins v. Richardson, 168 Kan. 203, 212 P.2d 302.)

While it may be conceded there is some inconsistency in our decisions, the statement has frequently been made that under the established rule of this jurisdiction rulings on motions to strike, regardless whether such motions have been sustained or overruled, rest in the sound discretion of the trial court and are not appealable under G.S.1949, 60-3302 and 60-3303, unless they are final, affect a substantial right, or in effect determine the action.(Nausley v. Nausley, 181 Kan. 543, 545, 313 P.2d 302;In re Estate of Sims, 182 Kan. 374, 321 P.2d 185;Lee v. Johnson, supra;andWescoat v. State Highway Commision, 187 Kan. 228, 356 P.2d 841; and the many cases cited in these decisions.)

Here the order of the trial court overruling the appellant's motion to strike the foregoing quoted paragraphs from the answer is not a final order within the contemplation of our code; it does not affect a substantial right; nor does it in effect determine the action.

The appellant's cause of action remains intact; none of her rights to pursue her remedy under the allegations of her petition has been taken away; there is nothing final concerning the defense of assumption of risk pleaded by way of answer.In due time the appellant will have her say in court.The doctrine of assumed risk pleaded by way of defense does not deny the appellant any right of trial or right to be heard on the merits of her case.Evidence presented by the appellee at the trial of the case concerning the defense of assumed risk, if improper, may be challenged by objection.Should the question still remain open after all the evidence has been presented, counsel for the respective parties will be permitted to present their views of the law relative to instructions for the jury, and the matter will again receive the attention of the trial court.

The appeal is dismissed.

SCHROEDER, Justice (concurring).

While I fully concur in the foregoing decision and the reasons assigned, I think members of the bar are entitled to have the court clarify its position on the point of appellate procedure here presented.

One reading the recent decisions of this court on the point under consideration might well conclude the court treats each case as sui generis, under the guise of looking through form to substance, thereby unduly inviting appeals at the procedural stage of a case.

In effect the decision of the court herein overrules In re Estate of Shirk, 188 Kan 513, 363 P.2d 461, which held in substance that an order overruling a motion to strike separately numbered defenses from an answer was appealable.Question is also cast upon the reliability of Vakas, Administratrix v. Collins, 189 Kan. 178, 368 P.2d 271, which followed the reasoning in Shirk.In my opinion the court should frankly recognize this fact by overruling Shirk and by further explaining Vakas.

The rule which has repeatedly been asserted in this jurisdiction, and one which has, with few exceptions, withstood the test of time, is that rulings on motions to strike, regardless whether such motions have been sustained or overruled, rest in the sound discretion of the trial court and are not appealable under G.S.1949, 60- 3302 and 60-3303, unless they are final, affect a substantial right, or in effect determine the action.This is the acid test.

The foregoing rule is derived from the code of civil procedure itself.Under G.S.1949, 60-3302, provision is made for appeal to ...