Billups v. American Sur. Co.

• Decision Date: 10 March 1951
• Docket Number: No. 38168,38168
• Citation: Billups v. American Sur. Co., 228 P.2d 731, 170 Kan. 666 (Kan. 1951)
• Parties: BILLUPS et al. v. AMERICAN SURETY CO. et al.
• Court: Kansas Supreme Court

Page 731

228 P.2d 731

170 Kan. 666

BILLUPS et al. v.AMERICAN SURETY CO. et al.

No. 38168.

Supreme Court of Kansas.

March 10, 1951.

Syllabus by the Court.

1.Under the provisions of G.S.1949, 66-1305, the liability of an insurer who gives a liability insurance policy for the express purpose of enabling a public or contract carrier of property to obtain a permit from the Port of Entry Board authorizing him to enter the state and operate as such over its highways is a tort liability for the negligent operation of such carrier.

2.The record in an action against two public or contract carriers and their respective insurers to recover damages resulting from the alleged negligent operation of two trucks on the public highways examined, and it is held, (1) the order of the trial court overruling the motion of defendant, The Maryland Casualty Company, to dismiss the cause of action, and (2) rulings of such court on divers motions to make the petition more definite and to strike, are not 'final orders' as that term is defined in the code of civil procedure, G.S.1949, 60-3303, and hence are not appealable under our statute.G.S.1949, 60-3302.

3.The petition in the action described in paragraph 2 of this syllabus examined, and held, the trial court did not err in overruling (1)defendant Wilkening's motion to make the petition more definite and certain and (2)demurrers of the defendant insurance companies to the petition based on grounds of misjoinder of causes of action and failure of such pleading to state facts sufficient to constitute a cause of action.

Ralph W. Oman, of Topeka (Robert Stone, James A. McClure, Robert L. Webb, and Robert A. McClure, all of Topeka, on the briefs), for appellants, American Surety Co., John Elsesser, and the Hensel Transfer & Warehouse Co.

O. B. Eidson, of Topeka (T. M. Lillard, Philip H. Lewis, and James W. Porter, all of Topeka, on the briefs), for appellants, Maryland Casualty Co. and Merle Wilkening.

Harold E. Doherty, of Topeka (G. Clay Baker, Howard F. McCue and Roy N. McCue, all of Topeka, on the briefs), for appellees.

PARKER, Justice.

Plaintiffs, as partners, brought this action in September, 1949, against the defendants to recover damages to their tractor truck and for loss of the use thereof, all claimed to have been sustained by them as the result of an accident and collision between three motor trucks on the public highway near Manhattan.

All issues involved on appeal relate to the sufficiency of the petition.For that reason and because such pleading discloses the factual situation about as clearly as it could be described in narrative form we shall quote from it at length omitting only formal averments and other immaterial allegations to which we shall presently refer.

After alleging that the plaintiffs were a partnership with their principal place of business at Clyde, Kansas, that the American Surety Company is a New York corporation authorized to do business in Kansas, that the defendant, John Elsesser is a resident of Sheboygan, Wisconsin, and that Hensel Transfer and Warehouse Company is a Wisconsin corporation with its principal place of business at Sheboygan, Wisconsin, licensed by the Interstate Commerce Commission to operate vehicles on the highways, the petition reads as follows:

'That, at all times hereinafter mentioned, the Hensel Transfer and Warehouse Company was the owner of a 1946 White Tractor, which tractor was operated as a part of the business of the Hensel Transfer and Warehouse Company for the purpose of transporting household goods across the highways of the State of Kansas, and which truck was being operated on the highways of Kansas pursuant to Section 66-1305 General Statutes of Kansas.

'That, at all times hereinafter mentioned, John Elsesser was the agent, servant and employee of the Hensel Transfer and Warehouse Company and was operating said truck on behalf of and in furtherance of defendantHensel Transfer and Warehouse Company's business.

'That, prior to the 10th day of January, 1948, for the purpose of gaining admittance into the state of Kansas, and for the purpose of operating said equipment over the highways of the State of Kansas, pursuant to Section 66-13051947 Supplement to the General Statutes of Kansas, the American Surety Company issued its liability insurance policy No. MV-53934M wherein they guaranteed to idemnify and individuals who suffered damages as a result of the negligence of the defendantHensel Transfer and Warehouse Company in the operation of the 1946 truck hereinbefore mentioned.

'That, a copy of said policy is not attached for the reason that plaintiffs do not have a copy and are unable to obtain a copy but the defendants have the policy and are well acquainted with the terms of said policy.That a photostatic certified copy of the Port of Entry records made pursuant to 66-1305 1947 Supplement to the General Statutes of Kansas is hereto attached and made a part of this petition and marked Plaintiffs' Exhibit 'A'.

'Merle Wilkening was at all times hereinafter mentioned the owner of a 1946 Chevrolet truck which truck was operated on the highways of the State of Kansas pursuant to authority of Common Carrier RouteNo. 3022 granted by the Kansas Corporation Commission.

'That, pursuant to Section 66-1108 General Statutes of Kansas 1935, the defendantMaryland Casualty Company issued its policy No. 15-458690 to the defendantMerle Wilkening and filed a copy with the Kansas Corporation Commission wherein it agreed to reimburse and hold harmless any individual who was injured or who suffered damage to their property as a result of the negligence of Merle Wilkening, his agents, servants and employees.

'That, a copy of said policy is not attached hereto for the reason that plaintiff does not have a copy but the defendants have said policy in their possession and are familiar with its terms.

'That at all times hereinafter mentioned plaintiffs were the owners of a 1948 White Tractor and a 1947 32-foot Wilson trailer.

'That on the 11th day of January, 1949, Highway 24 and 40 near the Blue River Bridge was covered with ice and snow but the entire highway was clear for traffic.

'That on or about the 11th day of January, 1949, at approximately 3 p. m., C. J. Billups was driving the above described vehicle on Highway 24 and 40 traveling on the South side of the highway at a speed of approximately 18 to 20 miles per hour.

'That, at approximately 3 p.m. on January 11, 1949, and near the Blue River Bridge, Merle Wilkening was driving his truck in a Westerly direction, traveling at a speed of 30 to 35 miles per hour.

'That immediately behind Merle Wilkening, a distance of approximately 20 feet, the defendantJohn Elsesser was driving a Hensel Transfer and Warehouse Company truck, traveling in a Westerly direction.As the lead truck, being driven by Merle Wilkening, approached the plaintiff's vehicle, which was traveling toward the defendant, Merle Wilkening, without signalling, applied his brakes and brought his vehicle to a stop.

'At the time Merle Wilkening stopped, he knew the defendantHensel Transfer and Warehouse Company's truck was so close upon him that it could not stop.That because of his stopping and because of the close proximity of the defendant's truck, Hensel Transfer and Warehouse Company, a collision occurred between these two trucks.As a result of this collision, the defendantJohn Elsesser drove his truck to the left or the south side of the highway and crashed into the vehicle of plaintiff, knocking it from the highway into a ditch on the South side of the road.

'That, as a result of the negligence of the defendant, plaintiffs' vehicle was damaged in an amount of $2,328.11, the cost of repairs to their vehicle.A copy of the repair bill is hereto attached, made a part hereof and marked Plaintiffs' Exhibit 'B'.

'That, in addition thereto, the plaintiffs paid the sum of $350.00 for wrecker services to remove the vehicle from the creek.

'That at the time of the accident plaintiff's vehicle was being used for transporting livestock from and in the vicinity of Clyde, Kansas, to Kansas City, Missouri, an average of two times per week and plaintiffs earned $125.00 net per trip.

'That, as a result of this accident, they missed four trips to Kansas City and lost the sum of $500.00.

'Plaintiffs further allege that on or about the 3rd day of February, 1949, the War Department attempted to lease the truck from plaintiffs at an hourly rate of $13.75 for the purpose of transporting feed and other commodities to the snow bound area of Wyoming and the Dakotas.

'That, because of the accident, plaintiffs were unable to lease this truck and, as a result thereof, lost seven weeks' work with it and lost the net sum of $6,145.00 by reason of being without the use of said truck.

'That the damage to the vehicle of plaintiffs was the result of the joint negligence of the defendants and each of them.'

The remaining allegations of the petition are of little consequence and need not be quoted.It suffices to say they relate to specific acts of negligence on the part of the two truck-driver defendants which for present purposes must be regarded as conceded and to the amount of damages claimed, together with a prayer for their recovery.

In the court below the defendants, American Surety Company, John Elsesser and Hensel Transfer and Warehouse Company, filed a motion to make the petition more definite and certain and to strike certain of its allegations.The American Surety Company also demurred to such pleading.Defendant Wilkening filed a motion to strike certain allegations from the petition and to make others more definite and certain.The defendantMaryland Casualty Company also demurred to the petition and in addition filed a motion to dismiss the alleged cause of action against it as set out therein, with an affidavit in support thereof.All of the foregoing motions and demurrers were...