Beck v. Phillip Billard, Post No. 1650, Veterans of Foreign Wars

• Decision Date: 27 January 1951
• Docket Number: No. 38128,38128
• Citation: Beck v. Phillip Billard, Post No. 1650, Veterans of Foreign Wars, 226 P.2d 840, 170 Kan. 490 (Kan. 1951)
• Parties: BECK v. PHILLIP BILLARD POST NO. 1650, VETERANS OF FOREIGN WARS.
• Court: Kansas Supreme Court

Page 840

226 P.2d 840

170 Kan. 490

BECK v.PHILLIP BILLARD POST NO. 1650, VETERANS OF FOREIGN WARS.

No. 38128.

Supreme Court of Kansas.

Jan. 27, 1951.

Syllabus by the Court

An appeal from an order striking a portion of the reply is dismissed for the reason that it is not an appealable order as defined by our statutes, G.S.1935, 60-3302 and 60-3303.

David Prager, of Topeka (Edward Rooney and Jacob A. Dickinson, both of Topeka, on the briefs), for the appellant.

James E. Smith, of Topeka (C. P. Schenck and Edward H. Sondker, both of Topeka, on the briefs), for the appellee.

HARVEY, Chief Justice.

This was an action for damages for personal injuries alleged to have resulted from the negligence of defendant.The appeal is from an order of the trial court sustaining defendant's motion to strike a part of the plaintiff's reply.

While other questions are discussed in the briefs our first question is to determine our jurisdiction, that is, is the appeal from an appealable order?We summarize the pleadings to the extent necessary to pass upon that question.In the amended petition it was alleged that on April 9, 1947, plaintiff attended as a paying patron 'a stag floor show' promoted and held by defendant for profit in a dance hall at a described location; that when he entered the hall the entertainment was in progress; that no seat was available for plaintiff; that the hall was crowded with patrons, most of whom were compelled to view the floor show from a standing or elevated position, some sitting on rows of benches or standing on window sills, tables or boxes; that one patron was standing on a stepladder which stood upright in the center of the hall, which patron removed himself from the stepladder and plaintiff started to climb the ladder to view the floor show; that the ladder collapsed, throwing plaintiff to the floor and injuring him.The injuries were described and the negligence of defendant is stated in several separate paragraphs.This petition was not attacked by demurrer or motion of any kind.

Defendant filed an amended answer in which it specifically denied all allegations of the petition charging it with negligence, pleaded contributory negligence of plaintiff in several paragraphs, also pleaded assumption of risk, and further alleged 'that it is a charitable and eleemosynary corporation of which plaintiff herein was a member, * * * and that by reason thereof, defendant is not liable to plaintiff for damages on account of any alleged injuries sustained by plaintiff, if any such injuries were sustained.'A copy of its charter was attached to the answer.This answer was not attacked by demurrer or motion of any kind.

Plaintiff filed a reply, which included a general denial, a specific denial that he was guilty of the...