Anderson Cattle Co. v. Kansas Turnpike Authority

• Decision Date: 09 March 1957
• Docket Number: No. 40375,40375
• Citation: 308 P.2d 172,180 Kan. 749
• Parties: ANDERSON CATTLE COMPANY, a Corporation, Appellee, v. The KANSAS TURNPIKE AUTHORITY, Appellant.
• Court: Kansas Supreme Court

Page 172

308 P.2d 172

180 Kan. 749

ANDERSON CATTLE COMPANY, a Corporation, Appellee, v. The KANSAS TURNPIKE AUTHORITY, Appellant.

No. 40375.

Supreme Court of Kansas.

March 9, 1957.

Syllabus by the Court.

1. Where an appeal is taken from an order overruling a demurrer to plaintiff's petition and no appeal is taken from a prior order overruling a special appearance, nothing is presented for appellate review on questions raised by the special appearance in the lower court.

2. A demurrer lodged against a petition admits all facts well pleaded therein to be true and does not permit examination of facts beyond the written allegations of the petition.

3. Under the foregoing rule the only allegation of the petition remotely material in a jurisdictional attack on the person of the defendant by a demurrer to the petition is reference to the defendant as The Kansas Turnpike Authority, and it is held that the Kansas Turnpike Act establishing The Kansas Turnpike Authority does not disclose the venue of the action in Lyon County to be improper.

4. Where the Kansas Turnpike Act provides that 'All private property damaged or destroyed in carrying out the powers granted by this act shall be restored or repaired and placed in its original condition as nearly as practicable or adequate compensation made therefor out of funds provided under the authority of this act.' (G.S.1955 Supp., 68-2015), it is held:

a. That such provision of the act creates a new statutroy cause of action;

b. That the state has waived immunity from suit or process in accordance with the limitations and conditions specified by the act; and

c. That the plaintiff, in pleading a new statutory cause of action as detailed in the opinion, has asserted and alleged a cause of action framed in the words of the statute.

5. Where a new statutory cause of action is created courts do not require explicit statutory authorization, where the legislature has left the matter at large, to supply a familiar remedy.

Robert M. Cowger, Topeka, argued the cause; Thomas W. Cunningham, Topeka, and James W. Putnam, Emporia, were with him on the briefs for appellant.

Dale A. Spiegel, Emporia, argued the cause; Archie T. MacDonald and Russ B. Anderson, McPherson, were with him on the briefs for appellee.

SCHROEDER, Justice.

This action comes before the court on an appeal from an order overruling a demurrer to the petition of the plaintiff, appellee herein.

The Anderson Cattle Company, appellee, will be referred to as plaintiff and The Kansas Turnpike Authority, appellant, will be referred to as defendant throughout this opinion.

The action against The Kansas Turnpike Authority, which is the subject of this appeal, is an outgrowth of an action filed against joint defendants, namely The Kansas Turnpike Authority and a partnership consisting of Lester W. Servis, L. M. VanDoren, and Stuart Hazard, doing business as Servis, VanDoren, and Hazard. After all defendants had entered a general appearance in the action filed in the district court of Lyon County, the trial court sustained their demurrers on the ground that misjoinder of causes of action existed, and ordered that separate actions be docketed under the provisions of G.S.1949, 60-709. Subsequent actions were filed and docketed as separate actions, and no further service obtained upon the defendants.

The petition of the plaintiff arising therefrom against The Kansas Turnpike Authority, omitting the caption and prayer, reads:

'1. That the plaintiff is a corporation organized under the laws of the State of Kansas, with its principal place of business in Emporia, Lyon County, Kansas;

'2. That the defendant is a body politic and corporate engaged in building a toll road and turnpike across the State of Kansas, through Lyon County and across Section 6, Township 19 South, Range 11 East of the 6th P.M., in Lyon County, Kansas;

'3. That prior to the 22nd day of April, 1955, and on various dates in the months of October and November, 1954, the defendant, its authorized agents and employees entered upon the land and premises above described for the purpose of making surveys, soundings, drillings, and examinations;

'4. That the defendant, its authorized agents and employees did, in going upon said lands and premises, caused damage to the personal property of the plaintiff, such personal property being 352 head of cattle, and that said damage was caused by molesting, annoying and exciting said cattle by the presence of the agents and employees of the defendant, by operation of machines and drills, and by creation of noise and motions of the defendant's agents and employees;

'5. That as a result of said action by the defendant, its agents and employees, said cattle were excited and agitated and were frightened and caused to run and were caused to lose weight by reason of failure to eat and rest in the ordinary and customary manner and were thereby damaged by loss of weight and decline in quality in the amount of $6,000;

'6. That the defendant would not and could not restore or repair the damage thus caused and has failed, neglected and refused to pay adequate compensation for said damage and that by reason thereof, there remains due and owing to the plaintiff from the defendant, the sum of $6,000.'

The defendant, Kansas Turnpike Authority, then entered a special appearance for the purpose of showing to the court (a) that no service whatsoever had been had upon the defendant, and (b) that the court was without jurisdiction, the only proper jurisdiction being in the County of Shawnee. The trial court overruled the special appearance, and from this ruling no appeal was taken to this court.

The defendant then demurred to the plaintiff's petition and interposed two points:

'1. That the court has no jurisdiction of the person of the defendant, or the subject of the action.

'2. That the petition does not state facts sufficient to constitute a cause of action.'

The trial court overruled this demurrer, and the defendant appeals only from the order overruling the demurrer.

Of interest, although not material herein, is the admission of parties in the argument of this case that the plaintiff was a lessee in possession of the lands described in the plaintiff's petition, and that the cattle owned by the plaintiff were being intensively fed concentrated feeds on a portion of the land through which the turnpike was eventually constructed. The record before this court is absolutely silent as to whether or not there was a condemnation of the land described in the plaintiff's petition or of the leasehold interest of the plaintiff therein.

What is the proper venue of actions against The Kansas Turnpike Authority? In view of the record before this court, it is unnecessary to give a complete answer to this question. Of particular importance on this point is the fact that no appeal was taken by The Kansas Turnpike Authority from the order overruling its special appearance in the lower court. No appeal having been taken from this order, the specific questions raised in the special appearance are not presented for appellate review. G.S.1949, 60-3306; Pennington v. Kansas Turnpike Authority, 180 Kan. 638, 305 P.2d 849; Rierson v. Southern Kansas Stage Lines Co., 146 Kan. 30, 69 P.2d 1; Nicholas v. Latham, 179 Kan. 348, 295 P.2d 631.

Analyzing the venue question presented by the demurrer, it must be observed that the petition, when tested by a demurrer admits all facts well pleaded therein to be true, and does not permit examination of facts beyond the written allegations of the pleading itself. The conclusions of law to be drawn from the facts are the prerogative of the court. At no place does it positively appear from the petition that the court has no jurisdiction of the person of the defendant herein unless by reference to the defendant as The Kansas Turnpike Authority such defect becomes apparent in the light of the Kansas Turnpike Act, G.S.1955 Supp. 68-2001 et seq. The defendant contends that The Kansas Turnpike Authority is an arm or agency of the State of Kansas, and that the only place in which it can be sued is at the seat of State Government, that is Shawnee County, Kansas, and in support of this contention cites authorities which have construed the statute applicable to the Kansas Highway Commission.

In Verdigris River Drainage Dist. No. 1 v. City of Coffeyville, 149 Kan. 191, 86 P.2d 592, this court said:

'* * * It has been definitely determined the venue of actions against the Commission is in Shawnee county, except as to those matters in which the legislature has specifically provided an action against the Commission may be brought elsewhere. State ex rel. v. Kansas State Highway Comm., 133 Kan. 357, 358, 299 P. 955; Rome Mfg. Co. v. State Highway Comm., supra [141 Kan. 385, 41 P.2d 761]; Gresty v. Darby, 146 Kan. 63, 68 P.2d 649. Except as to actions for damages resulting from defective highways, we find no specific provision that actions against the Commission may be maintained in counties other than Shawnee county. Our concern is not with the wisdom of such legislation, but solely with the interpretation of legislative intent. The Commission is an arm of the state. Since the legislature specifically consented only that a certain kind of action might be maintained against it in other counties than in Shawnee, we are forced to conclude it intended other actions against it should be maintained in the courts of the county where its main office and principal place of business was situated. * * *' 149 Kan. at page 194, 86 P.2d at page 595.

The act establishing the Highway Commission states G.S.1949, 74-2002, 'That the executive council shall provide suitable offices at Topeka for the commission, where it shall hold regular meetings * * *.'

In view of this statute requiring that the Highway Commission offices be in Topeka, it necessarily follows that Shawnee County is the proper venue for actions against it, and the basis for...