A. C. Ferrellgas Corp. v. Phoenix Ins. Co.

• Citation: 358 P.2d 786,187 Kan. 530
• Decision Date: 21 January 1961
• Docket Number: No. 41960,41960
• Parties: A. C. FERRELLGAS CORPORATION, INC., a Corporation, Appellee, v. PHOENIX INSURANCE COMPANY, a Corporation, Appellant.
• Court: United States State Supreme Court of Kansas

Page 786

358 P.2d 786

187 Kan. 530

A. C. FERRELLGAS CORPORATION, INC., a Corporation, Appellee, v. PHOENIX INSURANCE COMPANY, a Corporation, Appellant.

No. 41960.

Supreme Court of Kansas.

Jan. 21, 1961.

Syllabus by the Court.

1. If the order on a demurrer to the evidence is to be reviewed on appeal, it must have been renewed at the close of all of the evidence by a motion for a directed verdict (Ziegelasch v. Durr, 183 Kan. 233, 326 P.2d 295 and other cases cited in opinion).

2. Certain violations of Rule 5 of this court as to content of abstract noted but appeal considered because of existence of counter abstract.

3. Specifications of error are considered to be abandoned unless argued in brief of appellant.

4. Where it is contended that a later statute has repealed an earlier statute by implication, it is noted that repeal by implication is disfavored, and such a repeal is not to be found when both statutes may operate independently without conflict.

The record on an appeal from a judgment assessing the amount due on an insurance policy is considered, and it is held that none of the alleged trial errors more specifically noted in the opinion presents error and that the judgment must be affirmed.

Joseph R. Hogsett and Thad C. McCanse, Kansas City, Missouri, argued the cause, and John S. May, Atchison, was with them on the briefs for appellant.

Steadman Ball and Maurice P. O'Keefe, Sr., Atchison, argued the cause, and J. W. Lowry, William E. Stillings, Robert D. Caplinger, Karl W. Root, Dolan McKelvy, Maurice P. O'Keefe, Jr., and Terence D. O'Keefe, Atchison, were with them on the briefs for the appellee.

JACKSON, Justice.

The appellee sued the appellant on a policy of insurance alleging that the building which had been insured by the policy had been destroyed by wind and that the defendant refused to pay for the damage as it had agreed to do in the policy. The case was tried to a jury which returned a verdict in plaintiff's favor in the sum of $3,600. The verdict was approved by the trial court and judgment entered. The defendant has appealed therefrom.

It was set up in defendant's answer and contended throughout the trial, that the damage suffered to plaintiff's building had been caused by high water and flood and not by wind. The insurance policy did not cover damage by flood. It was agreed that plaintiff carried $49,000 of other insurance upon the building.

At the outset of the consideration of this appeal, we have a motion to dismiss because of the quite evident failure to follow the rules of this court in the preparation of the abstract in this case, and in particular rule 5, the first sentence of which reads as follows:

'In appealed cases the appellant shall print an abstract of the record which shall reproduce such portions thereof as it is necessary to read in order to arrive at a full understanding of the questions presented for review, so that no examination of the record itself need be made for that purpose.'

The abstract as filed is principally a reproduction of evidence thought to be favorable to defendant and leaves out most of the unfavorable evidence and proceedings which took place at the trial. In the abstract are found several references to the transcript which the court is asked to inspect. Although plaintiff has moved for dismissal, it has also filed a large counter abstract which we must assume gives the court a fair view of the proceedings at the trial when read with the abstract.

Although the rules of this court are made to be followed, under the present situation, we are not disposed to dismiss the appeal. We are inclined to credit the nature of the abstract to unfamiliarity with the Kansas rules of practice on the part of the writer of the abstract of the defendant rather than to any other motive. But it should be noted that the conditon of the abstract has increased the labor of this court in trying to understand the facts of the appeal.

In defendant's abstract are found twenty-two separate specifications of error. In defendant's brief, only eight alleged errors are argued. It may be that some of the assigned errors are combined in the eight argued, but it must be noted this court has long been committed to the rule that specified errors not argued in the brief are deemed to have been waived. It is interesting to note that this rule was announced by the court as early as the case of Bailey v. Dodge, 28 Kan. 72, syl. p5, and is to be found in many of the later cases, a few of which may be cited: Tawney v. Blankenship, 150 Kan. 41, 90 P.2d 1111, syl. p1; Sams v. Commercial Standard Ins. Co., 157 Kan. 278, 139 P.2d 859, syl. p1; Carver v. Farmers & Bankers Broadcasting Corp., 162 Kan. 663, at page 665, 179 P.2d 195, at page 197, and Houston Lumber Co. of Russell v. Morris, 179 Kan. 564, at pages 567-568, 297 P.2d 165, at page 167.

The only argument found in the brief which relates to the nature of the evidence of the parties in this case is predicated upon the proposition that the trial court should have sustained defendant's demurrer at the close of plaintiff's evidence. This assignment of error is plainly not here for review since the point was not raised before the trial court at the close of all of the evidence by a motion for a directed verdict in defendant's favor (Ziegelasch v. Durr, 183 Kan. 233, 326 P.2d 295; Ogilvie v. Mangels, 183 Kan. 733, 332 P.2d 581; In re Estate of Rogers, 184 Kan. 24, 334 P.2d 830; McCarthy v. Tetyak, 184 Kan. 126, at page 132, 334 P.2d 379, at page 384; Creten v. Chicago, Rock Island & Pac. Rld. Co., 184 Kan. 387, at page 396, 337 P.2d 1003, at page 1011; Francis v. City of Wichita, 184 Kan. 570, 337 P.2d 678; Roberts v. Cooter, 184 Kan. 805, at page 813, 339 P.2d 362, at page 368; Liberty Glass Co. v. Bath, 187 Kan. 54, at page 57, 353 P.2d 786, at page 788).

Despite what has been said above, and without attempting to detail the evidence, it would seem that there was ample evidence submitted by the plaintiff to show that the trial court did not err in overruling the demurrer to plaintiff's evidence. Many witnesses, including an expert from the University of Kansas, testified concerning the storms during the night of July 10 and 11, 1958, stating that especially near one o'clock in the morning the wind was like a tornado. On the other hand, the evidence of defendant was not particularly convincing in showing that the damage to plaintiff's building could have been caused by flood water. True, water got into the basement and was several inches deep on the first floor. This water apparently came through an open window in the foundation when the water reached several inches deep on the sidewalk and washed the window in. Further, water may well have come in through holes blown in the roof of the building. The chief injury to the building was that the top of the building wall on the street side was moved out toward the street in the center of the wall some six inches to a foot and extending back about eighteen feet on each side. The building was condemned by the city inspector and was torn down by the plaintiff. Professor Andes, a witness for plaintiff, explained how the terrific wind could cause this damage.

Defendant's second point is that the trial court erred in allowing plaintiff's president, Mr. Ferrell, to testify that a contractor from St. Joseph, whose name Ferrell did not know, told Ferrell that it would cost $20,000 to $25,000 to fix the wall of the building where it was bowed out. Defendant asserts that such testimony was hearsay. Whether such objection was valid or not depends upon whether the testimony was introduced to prove the truth of statement by the absent declarer--the contractor. It would appear rather clearly that such was not the purpose, and that the testimony was introduced only to indicate the good faith of Ferrell in ordering the building torn down. Ferrell testified only that he heard the statement--not that it was true. In the case of Mills v. Riggle, 83 Kan. 703, at page 708, 112 P. 617, 618, it was said:

'It is claimed that the court erred in permitting the [plaintiff] to testify that at the time he made the loan he had heard that Riggle was financially responsible. It is insisted that this was hearsay. If the question had been asked in proof of the fact that Riggle was financially responsible the evidence would have been hearsay; but such was not the purpose of the question, which was to establish the fact that the [plaintiff] relied upon what he had heard as to the financial responsibility of Riggle. The fact to which the witness testified was original evidence, not hearsay. Kaufman v. Springer, 38 Kan. 730, 17 P. 475; Bank of Hutchinson, 62 Kan. 9, 61 P. 443.'

This well-known rule of evidence was again followed in Malone v. New York Life Ins. Co., 148 Kan. 555, at page 558, 83 P.2d 639, at page 642; and see especially the criminal case of State v. Rhoten, 174 Kan. 394, at pages 399-400, 257 P.2d 141, at page 145, where the authorities in this jurisdiction and in others were collected as to this point.

Defendant has made no attempt in its brief to contend that the evidence objected to did not fall within this exception to the hearsay rule.

The third objection raised in the brief of defendant reads:

'The court erred in denying defendant's challenges of...