Briggs v. Burk
| Decision Date | 26 January 1952 |
| Docket Number | 38556,Nos. 38533,38546,s. 38533 |
| Citation | 172 Kan. 375,239 P.2d 981 |
| Parties | BRIGGS v. BURK et al. BURNS v. BURK et al. WADE v. BURK et al. |
| Court | Kansas Supreme Court |
Syllabus by the Court
In actions for damages for wrongful death alleged to have been caused by the negligence of one who was operating his truck as a private motor carrier of property under a permit issued by the state corporation commission, the record is examined and it is held: Under the allegations of the petition it cannot be said that the defendant at the time and place of the accident was so operating his truck in violation of his permit, or in violation of the insurance policy, as to relieve his insurance carrier from liability.
David H. Fisher, of Topeka, argued the cause, and Irwin Snattinger, of Topeka, was with him on the briefs for appellant.
Ward D. Martin, of Topeka, argued the cause, and A. Harry Crane and Arthur L. Claussen, both of Topeka, and Leonard W. McAnarney, of Lyndon, were with him on the briefs for appellees.
In each of these cases the plaintiff sued for damages for the wrongful death of her husband alleged to have resulted from the negligence of the defendant, Clyde Burk. They were filed separately in the district court of Shawnee county and one was assigned to each of the three divisions of that court. Burk's insurance carrier was made a party-defendant and filed a demurrer to the petition as amended upon the ground that the petition does not state a cause of action against it. In each of the cases the demurrer was overruled and the insurer alone has appealed. The cases are consolidated here because the same legal question is presented in each of them.
The facts pertinent to this appeal may be stated briefly as follows: On February 9, 1950, Robert C. Burns, husband of plaintiff in case No. 38,546, was operating a described automobile owned by him. Riding with him was Joseph E. Briggs, husband of plaintiff in case No. 38,533, and Max Eldon Wade, husband of plaintiff in case No. 38,546. Burns was driving his automobile south from Topeka on U. S. Highway No. 75, which is paved. At a place about three-tenths of a mile south of the Carbondale intersection Clyde Burk, doing business as the Burk Nursery Company of Dodge City, was driving his Ford pickup truck north on the same highway and negligently drove or allowed the truck to turn into the west side of the highway in front of the automobile driven by Burns, causing a collision, as a result of which each of the three men who were riding in the automobile received fatal injuries.
In this appeal we are not concerned with the negligence of Burk. He has filed an answer in each case and the cases have not been tried. Appellant here does not contend that the respective petitions do not state causes of action against Burk. With respect to appellant it is alleged in the petition, as amended in case No. 38,533 () the following:
'That the defendant, The Hartford Accident & Indemnity Company, is a foreign insurance corporation licensed to engage in the insurance business in the state of Kansas, and that said corporation insures against liability to others by reason of the operation of motor vehicles; that prior to the time of said accident above set forth the defendant, Hartford Accident & Indemnity Company, issued and delivered a policy of motor vehicle liability insurance to the defendant, Clyde Burk, for a valuable consideration, a copy of which is filed herein, marked 'Exhibit A' and made a part hereof, by which policy the company agreed to pay any liability incurred on account of the injury to property or persons of others by reason of the operation of the motor vehicle owned and operated by the defendant, Clyde Burk, and his agents, servants, and employees at the time and place hereinbefore referred to; that said policy of insurance was filed by the defendants with the State Corporation Commission of the state of Kansas and was approved by said Commission, all in accordance with G. S. 1935, 66-1,128; that said policy of insurance was in full force at the time of said collision; and that said defendant, Hartford Accident & Indemnity Company, is liable to the plaintiff for the damage caused by the said collision because of the negligence of the defendant, Clyde Burk, at the time and place hereinbefore mentioned.
'Plaintiff further alleges that to the best of her information and belief the said Clyde Burk had complied with all of the conditions contained in said policy; that although the place of the collision at Carbondale, Kansas, is at or about 240 miles from Dodge City, Kansas, that at said time and place aforesaid the said Clyde Burk was then and there acting pursuant to and in the furtherance of his business and occupation, to-wit: the nursery business, and more specifically, the said Clyde Burk at said time and place was operating as a private carrier and transporting nursery stock in said truck in the furtherance of his business; and that said truck was being operated under a private carrier permit Number 35-74 issued by the Corporation Commission of the state of Kansas, a certified copy of which certificate is filed herein, marked Exhibit 'B' and made a part hereof, and said vehicle was being operated in the state of Kansas and at said time and place pursuant thereto as hereinbefore alleged, and was being operated upon the highways of the state of Kansas at said time and place sursuant to Section 66-1,128 G.S.1935.'
Exhibit 'B,' attached to and made a part of the petition, reads:
'Before the State Corporation Commission of the State of Kansas
'In the matter of the application of Clyde Burk, dba Burk's Nursery of Dodge City, Kansas, for an Order Restricting Private Carrier Permit 35-74 within a radius of one hundred-fifty (150) miles of base point.
'Order Restricting Permit
'On this 25th day of May, 1942, comes on for consideration and determination by the Commission, the matter of the application of Clyde Burk, dba Burk's Nursery of Dodge City, Kansas, for an order restricting said operator to operations within a radius of one hundred-fifty (150) miles of said operator's home, 3 miles south-west of Dodge City; and the Commission after examining the files and being fully advised in the premises, finds that said application should be granted.
'It is, therefore, by the Commission ordered that said private carrier permit No. 35-74, issued to said Clyde Burk, dba Burk's Nursery of Dodge City, Kansas, be and the same is hereby restricted to permit said applicant to operate only within a radius of one hundred-fifty (150) miles of said operator's home, 3 miles southwest of Dodge City, Kansas.
'The Commission retains continuing jurisdiction in this matter to make such further restrictions, reservations, limitations and amendments to this permit as to it may seem advisable in the premises.
'Richard B. McEntire
Richard B. McEntire, Secretary'
'Seal
ECS'
We first take note that the above order of May 25, 1942, is not the permit which at some time prior thereto had been issued to Burk. Since that was referred to in the other as a 'private carrier permit' we assume that at some time prior to the date of this order there had been issued to Burk a permit to operate as a private motor carrier of property, as that term is defined in G.S.1949, 66-1,108(i) as follows: 'The term 'private motor carrier of property' when used in this act shall mean any person engaged in transportation, by motor vehicle, of property sold or to be sold by him in the furtherance of any private commercial enterprise, or property transported by the owner, lessee or bailee for the purpose of lease, rent or bailment.'
And G.S.1949, 66-1,111, provides: 'No * * * private motor carrier of property shall operate any motor vehicle * * * on any public highway in this state except in accordance with the provisions of this act.'
Counsel for appellant argue there can be no question of the state corporation commission's authority to restrict the permit, citing G.S.1949, 66-1,112b. This deals with an application for a permit and provides for a notice and hearing and for terms of permits, and contains the following: 'The commission is hereby vested with power and authority to grant or deny the permit prayed for, or to grant it for the partial exercise only of the privilege sought, * * *.'
It is observed that the order of May 25, 1942, was not made upon the application for a permit, neither was it made after notice and a hearing. The order was ex parte. Apparently Burk filed an application to have the permit previously issued to him limited as to area, and that the commission examined the files and made an order granting the request. What the files showed is not disclosed. The granting of these permits was regarded by our legislature as a matter important to the public as well as to the applicant. We are cited to no statute of this state which authorizes the commission to modify them by an ex parte order as to area covered. We shall not rest our decision upon this point, however, since it has not been argued by counsel. Apparently counsel on both sides have presented the case in the trial, court and here as though the commission's order of May 25, 1942, was valid, and for the sole purpose of this case, we shall so regard it.
Counsel for appellant argue that Burk was not operating his vehicle at the time of the accident pursuant to his permit and point out that the order of the corporation commission of May 25, 1942, restricts the permit previously issued to Burk to the territory within a radius of 150 miles of Burk's base point, which was three miles southwest of Dodge City, and that the accident happened 240 miles from Dodge City. On this point they cite Smith v. Republic Underwriters, 152 Kan. 305, 103 P.2d 858, 860, which was considering a provision in an insurance policy which...
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