Burks v. Aldridge

• Decision Date: 24 January 1942
• Docket Number: 35401-35403.
• Citation: 121 P.2d 276,154 Kan. 731
• Parties: BURKS v. ALDRIDGE et al. RAGLAND v. SAME. MELTON v. SAME.
• Court: Kansas Supreme Court

121 P.2d 276

154 Kan. 731

BURKS v. ALDRIDGE et al.

RAGLAND v. SAME.

MELTON v. SAME.

Nos. 35401-35403.

Supreme Court of Kansas

January 24, 1942

Syllabus by the Court.

As against demurrer, a pleading is to be liberally construed and all reasonable inferences and intendments indulged in favor of the pleading, but this does not mean that plain averments are to be modified, or that the pleader is not bound thereby.

Except in actions to enforce mortgages or other liens, several causes of action, where they all affect all the parties to the action, may be united in the same petition. Gen.St. 1935 60-601.

Under the present Code of Civil Procedure, misjoinder of causes of action constitutes a ground for demurrer. Gen.St.1935 60-705, subd. 4.

Ordinarily actions in tort and on contract may not be joined, unless it can be said that both affect all the parties within the meaning of statute providing for joinder of causes of action. Gen.St.1935, 60-601.

The distinction between "liability insurance" and "indemnity insurance" is that in the former the coverage attaches when the liability attaches, while in the latter no action lies against the insurer until an actual loss in the discharge of the liability has been sustained by the insured, but a policy under terms of which the insurer's obligation arises only when the liability of the insured has been established by judgment against him is equally one for liability insurance rather than for indemnity insurance.

The time when the liability attaches under liability policy or indemnity policy is to be determined from the terms of the policy.

In action for personal injuries, founded on alleged negligence of a contractor engaged in constructing a highway under contract with State Highway Commission, an allegation that contractor's liability insurance carrier agreed to protect the public from injuries arising out of the construction work was merely a "conclusion" not admitted by demurrer.

Since persons allegedly injured by negligence of a contractor engaged in constructing a highway under contract with State Highway Commission had a statutory means for securing a copy and inspection of contractor's public liability insurance policy, in action 'against contractor and insurance carrier, they could not urge a more liberal interpretation of petition, which merely alleged as a conclusion that insurer had agreed to protect the public against injuries arising on account of the construction work, as against insurer's demurrer on the ground that there had been no preliminary motion to make petition more definite and certain.

In action for personal injuries, founded upon alleged negligence of a contractor engaged in constructing a highway under contract with State Highway Commission, contractor's liability insurance carrier may not be joined as a defendant in absence of a direct liability on its part under the policy, prior to judgment against the contractor, since in such event insurer is entitled to have contractor's liability first tried out on its merits without injection into such trial of the subject of existing insurance.

In an action for personal injuries allegedly due to negligence of a contractor engaged in constructing a highway under contract with State Highway Commission, allegations that contractor agreed to carry liability insurance to protect the public from injury by reason of the construction work, and that contractor's public liability insurance carrier agreed to protect public from injuries arising out of such work failed to state a cause of action against insurance carrier.

1. In an action for damages for personal injuries, founded upon alleged negligence on the part of a contractor engaged in constructing a highway under a contract with the state highway commission, the contractor's liability insurance carrier may not be joined as a defendant, in the absence of a direct liability on its part, under the policy prior to judgment against the contractor.

2. The record is examined in an action such as that referred to above and it is held that the insurance carrier's demurrer to the petition should have been sustained, for the reason that no cause of action against it was stated therein, in that no then-existing, direct liability to the plaintiff, on its part, was made to appear.

Appeal from District Court, Wyandotte County, Division No. 1; E. L. Fischer, Judge.

Separate actions by Richard T. Burks, Roy C. Ragland, and Frank G. Melton against R. G. Aldridge and others and the Liberty Mutual Insurance Company for personal injuries sustained by the plaintiffs in an automobile accident, which occurred on a highway under construction under a contract between the first named defendant and the State Highway Commission, and which was allegedly due to the negligence of such defendant. From orders overruling its demurrer to the petition in each case, the insurance company appeals. The cases are consolidated for review.

Judgments reversed, and causes remanded, with directions.

Edwin S. McAnany, Thos. M. Van Cleave, Willard L. Phillips, Bernhard W. Alden, Patrick B. McAnany, and Thos. M. Van Cleave, Jr., all of Kansas City, for appellant.

Joseph Cohen, of Kansas City, for appellee.

HOCH Justice.

Each of the three cases here consolidated for review presents the same question. What is said about one applies equally to the others.

In an action, founded on negligence, plaintiff sought to recover damages for personal injuries received in an automobile accident. The defendants were a contractor engaged in highway construction, and his insurance carrier. The insurance carrier demurred to the petition. From an order overruling the demurrer this appeal was taken. It is stated that the question is whether the insurance company was properly joined in the action. That question, however, turns upon the issue of whether the petition stated a cause of action against the insurance carrier, founded upon direct liability to plaintiff prior to judgment against the contractor.

For ten or twelve miles westward from Kansas City there is a four lane concrete highway over which U.S. highways 24 and 40 are routed together. At the point where the four lane highway ends the two routes turn north. The defendant contractor, R. G. Aldridge, had a contract with the state highway commission to construct, beginning at that point, a westward extension of the main highway. Preliminary grading of the dirt road and other work, under the contract, was under way. Late in the evening of October 17, 1940, plaintiff, who had left Hodgenville, Kentucky, together with the other plaintiffs in an automobile on the morning of the same day, reached the point where the new highway was to begin and where the existing highway makes a sweeping curve to the north. Instead of following the paved highway to the north they continued straight west onto the dirt road under construction, proceeded for some distance, ran into a ditch and suffered the injuries complained of.

The petition alleged the contract and that the work was being done under it; that the contractor had negligently failed to place a barricade at the west end of the paved highway of sufficient size to be readily observable, and to place a light thereon as a warning to west bound travelers not to proceed onto the highway under construction. The allegations here pertinent relative to the insurance company were as follows:

"Plaintiff further states that under the provisions and terms of the contract of the said R. G. Aldridge with the said state highway commission of the state of Kansas for the doing of said grading work, the said defendant, R. G. Aldridge agreed as follows: ' The contractor shall carry liability insurance to protect the public from injuries by reason of the carrying on of the work to which these specifications apply ***'

"Plaintiff further states that in conformity with said provisions of his said contract, the said R. G. Aldridge contracted with the defendant, Liberty Mutual Insurance Company, a corporation, whereby and by the terms whereof the said Liberty Mutual Insurance Company issued its public liability insurance policy, the number of which and the extent of the liability of which are unknown to this plaintiff, and by the terms of said public liability insurance policy, the said Liberty Mutual Insurance Company agreed to protect the public including this plaintiff, from injuries arising out of the said grading work performed by the defendant, R. G. Aldridge." (Italics supplied.)

In determining the instant issue we are not unmindful of the established rule, urged by appellee, that as against demurrer, a pleading is to be liberally construed and all reasonable inferences and intendments indulged in its favor. This does not mean, of course, that plain averments are to be modified or that the...