Clark v. Hildreth, 39972

• Decision Date: 29 February 1956
• Docket Number: No. 39972,39972
• Citation: 293 P.2d 989,179 Kan. 243
• Parties: Minnie F. CLARK, Appellant, v. Charles HILDRETH, Appellee.
• Court: Kansas Supreme Court

Page 989

293 P.2d 989

179 Kan. 243

Minnie F. CLARK, Appellant, v. Charles HILDRETH, Appellee.

No. 39972.

Supreme Court of Kansas.

Feb. 29, 1956.

Syllabus by the Court.

1. The record examined in a case where a general demurrer was sustained to an amended petition after a motion to make definite and certain had been lodged against the original petition, and it is held, the trial court erred in sustaining the demurrer.

2. When a general demurrer is lodged against a petition, the petition is to be liberally construed in favor of the pleader, and he is entitled to all reasonable inferences to be drawn therefrom.

3. Where a motion to make definite and certain has been filed against an original petition, as occurred in this case, and such motion is overruled, it is unnecessary to file an identical motion against the amended petition in order to invoke the rule of strict construction.

4. Contributory negligence on the part of a pleader as a matter of law may be raised by demurrer but such contributory negligence must appear on the face of the petition.

5. Contributory negligence on the part of a pleader may be overcome by allegations of wanton negligence, but to do so, facts constituting such wanton negligence must be pleaded and not just by mere use of the word 'wanton.' If an actor has reason to believe his act may injure another, and does it, being indifferent to whether it injures, he is guilty of wanton conduct.

6. A naked conclusion of negligence in a pleading is never admitted by a demurrer but if sufficient facts are alleged to constitute negligence, then the demurrer does admit them and it should be overruled.

7. On appeal on considering a motion to make definite and certain, only those parts of the pleading assailed by the motion are thereafter subject to critical analysis and a general demurrer later leveled at the pleading must be considered in view of all the contents and not merely with respect to some isolated paragraph of the pleading.

8. The rule of strict construction was never intended to apply where a general demurrer follows a previously overruled unmeritorious motion, but if a meritorious motion to make definite and certain is filed, followed by a general demurrer, then those matters covered by the motion must be strictly construed against the pleader in considering the sufficiency of the attacked pleading.

Frantz G. Loriaux, and R. A. Munroe, Augusta, argued the cause, and Fred R. Vieux, Augusta, was with them on the briefs for appellant.

H. E. Jones, Wichita, argued the cause, and A. W. Hershberger, J. B. Patterson, Richard Jones, Wm. P. Thompson, and Jerome E. Jones, Wichita, and R. C. Woodward, and H. P. Woodward, El Dorado, were with him on the briefs for appellee.

ROBB, Justice.

This was an appeal from an order of the trial court sustaining a demurrer to plaintiff's amended petition seeking recovery of damages for personal injuries she received as a result of an intersection collision.

After plaintiff filed her petition the defendant filed a motion to strike the petition, which the trial court overruled, and in the alternative the motion was (1) to require separate statements of the alleged acts of negligence and the wanton and willful conduct, to distinguish between those acts as to category, and to number each act separately; and (2) to strike references to statutes. These two grounds were sustained. Ground (3) of the motion was to strike certain parts of the first cause of action because it was not based upon res ipsa loquitur and because of allegations of specific negligent acts; and (4) was to require a statement of facts upon which appellant claimed wanton and willful conduct, or to strike all claim for exemplary damages for the reason that the allegations thereof were conclusions of fact and law. These two grounds were overruled.

An amended petition was filed which is attached to this opinion and made a part hereof. Defendant filed a demurrer thereto which was sustained by the trial court and reads in part as follows:

'Comes now the defendant * * * and demurs to the amended petition * * * for the reason that said petition fails to state a cause of action against defendant, and for the further reason that the * * * allegations * * * indicate * * * the plaintiff was guilty of contributory negligence.' (Our italics.)

The trial court sustained the demurrer generally and plaintiff has appealed therefrom.

In approaching any case of this kind we are first met with one of our most familiar questions and that is the sufficiency of a pleading when a demurrer is lodged against it. Generally, a petition is liberally construed in favor of the pleader, and he is entitled to all reasonable inferences to be drawn from it. An exception to this rule occurs when a motion to make definite and certain is successfully resisted. Then the pleading must be strictly construed against the pleader as to matters covered by the motion. Frazier v. Cities Service Oil Co., 159 Kan. 655, 659, 157 P.2d 822; Cotter v. Freeto, 166 Kan. 23, 26, 199 P.2d 484; Farmers Union Elevator Co. v. Johnson-Sampson Construction Co., 174 Kan. 693, 699, 258 P.2d 268. This rule was stated in Arensman v. Kitch, 160 Kan. 783, 165 P.2d 441, and was followed by this language:

'Its corollary, although not so frequently stated, is that when a motion to make more definite and certain has been sustained and a pleading amended such pleading will be strictly construed and given the construction which is most unfavorable to the pleader.' 160 Kan. at page 788, 165 P.2d at page 445.

It might be well to note that in the Arensman case the pleading involved was an answer, but the rule stated is couched in general language so as to apply to any pleading.

We come next to an interesting, but futile contention of appellant that no motion was lodged against the amended petition and, therefore, it should fall under the liberal construction rule because our court said in Fullington v. Goodrich, 169 Kan. 11, 216 P.2d 817, where the same contention was made, that,

'* * * since the trial court had already overruled his motion filed against the original petition it would have been a futile and useless gesture to file an identical motion against the amended petition.' 169 Kan. at page 13, 216 P.2d at page 819.

In Donie v. Associated Co., Inc., 173 Kan. 753, 756, 252 P.2d 609, where this court reversed the trial court's order overruling a demurrer after a motion to make definite and certain had been lodged against the original petition, it was said,

'The court had already overruled the motion filed against the original petition, and there is nothing in the record to indicate that a like ruling would not have been made had a similar motion been filed against the amended petition. * * * [Citing the Fullington case, supra.]' 173 Kan. at page 756, 252 P.2d at page 611.

Granting that contributory negligence might be raised by demurrer, such contributory negligence must appear on the face of the petition. The rule is set out in Leabo v. Willett, 162 Kan. 236, 175 P.2d 109,

'The established rule in this jurisdiction is that contributory negligence is an affirmative defense which must be pleaded by the defendant in order to be available to him unless such negligence appears on the face of the petition * * *,' 162 Kan. at page 240, 175 P.2d at page 112,

and in Mason v. Banta, 166 Kan. 445, 201 P.2d 654, it is said,

'While ordinarily contributory negligence is an affirmative defense which must be pleaded and proved by the defendant, where the petition discloses the plaintiff's failure to use due care for his own safety, the defendant may properly demur.' 166 Kan. at page 450, 201 P.2d at page 657.

Appellant, for the purpose of argument but not admitting it, said that even though she might have been contributorily negligent, this was negatived by her allegations of wanton and willful conduct. The mere use of such words as wanton, standing alone, is not sufficient but there must be coupled therewith facts sufficient to establish wantonness. Wantonness is more than negligence and less than willfulness. Wanton acts complained of must not only show lack of due care but,

'* * * the actor must be deemed to have realized the imminence of injury to others from his acts and to have refrained from taking steps to prevent the injury because indifferent to whether it occurred or not. Stated in another way, if the actor has reason to believe his act may injure another, and does it being indifferent to whether it does or not, he is guilty of wanton conduct.' Frazier v. Cities Service Oil Co., supra, 159 Kan. at page 666, 157 P.2d at page 830.

See, also, Gesslein v. Britton, 175 Kan. 661, 664, 266 P.2d 263.

Appellee set out the rule that negligence where it is a naked conclusion is never admitted by a demurrer, Snyder v. Haas, 175 Kan. 846, 847, 267 P.2d 467, and we agree with this rule, but from an examination of the amended petition in this case, it cannot be denied that facts were sufficiently alleged to constitute negligence and as a result we will not here labor that point.

The order of the trial court in sustaining the demurrer without giving the reason therefor brings attention to the fact that the demurrer had two grounds. If either ground was good, then the sustaining of the demurrer was correct. Ritchie v. Johnson, 158 Kan. 103, 110, 144 P.2d 925; Bradley v. Hall, 165 Kan. 358, Syl. p2, 194 P.2d 943. Of course, if neither of the grounds was good, the demurrer should have been overruled.

Earlier in this opinion the rule relative to a demurrer after a motion has been lodged against the attacked pleading is stated, but we now reach a point where contentions of the parties raise the question as to whether there are exceptions to this rule. We should note that only those parts subjected to the motion to make definite and certain are thereafter subject to critical analysis. Frazier v. Cities Service Oil Co., supra, Syl. p5. On appeal where a ...