Bortzfield v. Sutton

• Decision Date: 30 June 1956
• Docket Number: No. 40157,40157
• Citation: 299 P.2d 584,180 Kan. 46
• Parties: H. F. BORTZFIELD, Appellant, v. W. W. SUTTON, Appellee.
• Court: Kansas Supreme Court

Page 584

299 P.2d 584

180 Kan. 46

H. F. BORTZFIELD, Appellant, v. W. W. SUTTON, Appellee.

No. 40157.

Supreme Court of Kansas.

June 30, 1956.

Syllabus by the Court.

1. The right of appeal is not determined by whether the appealing party is right in his contention.

2. Where a party appeals from an adverse ruling on a demurrer he may have precedent adverse rulings on his motions directed against his adversary's pleadings reviewed if such rulings are included in his

notice of appeal. (G.S.1955 Supp., 60-3314a)

3. An answer to a petition alleging a cause of action under the factory act (G.S.1949, Ch. 44, art. 1) examined, and held, that the trial court did not err in overruling the plaintiff's motions that certain allegations of the answer be stricken and other allegations be made more definite and certain, as more fully set forth in the opinion.

4. In an action under the factory act, a motion by the plaintiff to compel the defendant to permit the plaintiff to inspect the premises of the defendant where the sawmill involved is located, to photograph the sawmill and to permit an expert to inspect the sawmill, is addressed to the sound judicial discretion of the trial court, and its ruling denying such motion is not to be reversed in the absence of a showing such discretion was abused.

5. An answer containing a general denial of the allegations of a petition is not subject to a demurrer as not stating a defense.

Walter B. Patterson, Fort Scott, Sylvan Bruner and Don C. Smith, Pittsburg, on the brief, for appellant.

Harry C. Blaker, Pleasanton, for appellee.

THIELE, Justice.

This was an action to recover for damages under the provisions of G.S.1949, Ch. 44, art. 1, often referred to as the 'Factory Act'. The present appeal is from rulings adverse to the plaintiff on his motions, later mentioned, directed against the defendant's answer and from an order overruling plaintiff's demurrer to the answer.

For our purposes it is noted that plaintiff filed his amended petition alleging status of the parties and that defendant operated a sawmill in Pleasanton, Kansas, equipped with described machinery which it was alleged was not equipped with belt shifters and other safeguards as required by the factory act, and that on February 16, 1955, plaintiff was assisting in the operation of an edger, a detailed description of which was alleged, and which was not equipped with belt shifting devices; that a scrap of lumber was caught in the edger stopping the movement thereof, and as plaintiff was in the process of removing the scrap the machine started, plaintiff's clothing was caught and he was forced into a saw and sustained severe injuries. It was alleged that defendant was guilty of violating the factory act in failing to provide the mill with safeguards as provided by the act, in four stated particulars, and that by reason of such violation plaintiff had suffered injuries which were alleged at length. His prayer was for judgment in a stated amount.

Defendant filed an answer consisting of four paragraphs. The first paragraph denied all allegations of the amended petition except such as were admitted to be true. The second paragraph admitted defendant operated a sawmill and that plaintiff was in his employ and received personal injury. The third paragraph recited:

'Pleading further, the defendant specifically denies that any alleged violation of the 'Factory Act' or any alleged negligent act of commission or omission on the part of the defendant, proximately caused or directly contributed to any injury to the plaintiff, and further states and alleges that any injury suffered by the plaintiff was caused by his own negligence and a reckless and thoughtless disregard for his own safety.' (Emphasis supplied for convenience in reference later.)

The fourth paragraph denied that certain allegations of the amended petition constituted violations of the factory act.

Plaintiff then filed his motion that the emphasized portion be stricken from the answer in that contributory negligence on the part of the plaintiff is not a defense to a petition based on the factory act, and that the first portion (not emphasized) be made more definite and certain by setting forth whether the sawmill complied with the factory act and in particular whether the edger was equipped with particularly named belt shifters, loose pulleys and other safeguards as required by the factory act. A little later plaintiff filed a motion making reference to his amended petition and stating that in order to properly prepare his case for trial and to present evidence concerning violations of the factory act, plaintiff requested the trial court that in the interest of justice and its equity powers it grant him permission to inspect the sawmill, to take photographs and to have an expert safety engineer inspect the sawmill. These motions were heard by the trial court and denied. Plaintiff then filed a demurrer on the ground the answer did not state facts sufficient to constitute a defense or to allege a defense of either contributory negligence or negligence on the part of the plaintiff and that the defense of contributory negligence or negligence on the part of the plaintiff was not a defense under the factory act. This demurrer was overruled and plaintiff then orally requested permission to amend his motion to strike by inserting the words 'negligence or' before the words 'contributory negligence', as summarized above. The request was denied. In due time plaintiff perfected his appeal from each of the rulings above set forth.

We first note defendant's challenge of plaintiff's right to maintain his appeal. In substance the complaint is that the rulings on the motions are not in and of themselves appealable, and that there is no question the demurrer to the answer was not good and plaintiff knew it. We shall not elaborate on the argument nor on the fact defendant relies principally on the dissenting opinion in Western Shale Products Co. v. City of Fort Scott, 175 Kan. 643, 266 P.2d 327. The right of appeal is not determined by whether the appealing party is right in his contention. That he had a right to appeal from an adverse ruling on the demurrer cannot be questioned and in such circumstance, he could have review of other previous rulings. See Brewer v. Hearne Motor Freight Lines, Inc., 179 Kan. 732, 297 P.2d 1108, and case cited. The appeal will be considered.

Plaintiff first contends his motion to make definite and certain should have been sustained. He directs our attention to G.S.1949, 44-104, setting up standards as to belt shifters, pulleys and guards, and to 44-106, as to sufficiency of proof, argues this is a statutory and not a common law action and because he was compelled to plead with particularity as to how he was injured, that defendant should be compelled to plead with particularity the safeguards he had installed. Under the factory act the plaintiff must prove in the first instance, in order to establish liability of the defendant, that the injury complained of resulted from the failure of the owner or operator to provide the safeguards provided for in the act. There can be no argument that in bringing his action, plaintiff must allege those facts, and in this case he has done so. Defendant has denied those allegations and an issue was joined thereon. We know of no rule of law, and appellant cites none, that would lead to any conclusion the general and the specific denials contained in the answer are subject to a motion to make more definite and certain. Further, there is nothing in the factory act that indicates that a defendant, in order to avoid liability under it, must, notwithstanding his denial of plaintiff's allegations,...