Cornett v. City of Neodesha

• Decision Date: 02 July 1960
• Docket Number: No. 41895,41895
• Citation: 353 P.2d 975,187 Kan. 60
• Parties: Gladys CORNETT, Appellee, v. CITY OF NEODESHA, Appellant.
• Court: Kansas Supreme Court

Page 975

353 P.2d 975

187 Kan. 60

Gladys CORNETT, Appellee, v. CITY OF NEODESHA, Appellant.

No. 41895.

Supreme Court of Kansas.

July 2, 1960.

Syllabus by the Court.

In an action to recover damages from the City of Neodesha for injuries sustained by reason of a fall on an alleged defective sidewalk the record is examined, and it is held, that under the facts, conditions and circumstances related in the opinion and, for the reasons therein stated, the trial court did not err in overruling the defendant's demurrer to the second cause of action set forth in the petition.

Walter L. McVey, Independence, argued the cause, and Dan R. Aul, Sabetha, and P. W. Stephens, Neodesha, were with him on the briefs, for appellant.

Herman W. Smith, Jr., Parsons, argued the cause, and Elmer W. Columbia, John B. Markham and E. W. Beeson, Parsons, were with him on the briefs, for appellee.

PARKER, Chief Justice.

This is an action for damages instituted by the plaintiff, Mrs. Gladys Cornett, for injuries sustained from a fall on an alleged defective sidewalk located in the city of Neodesha.

The facts necessary to an orderly disposition of this appeal are as follows.

Plaintiff commenced this lawsuit by filing a petition containing two causes of action. Highly summarized, since its contents are not involved in this appeal, her first cause of action alleged the defect in the sidewalk complained of and that said defect caused her to fall; alleged with particularity acts of negligence on the part of the city; averred plaintiff had filed a notice and claim with the city clerk, marked Exhibit 'A' and attached to the petition, but that the city had not acted thereon; and further alleged that she had received various injuries and loss of wages, as the result of which she had sustained damages in an amount stated.

Plaintiff's second cause of action, upon which this appeal is predicated, incorporated all allegations of the first cause of action; alleged that she was married and by reason of her alleged injuries had been unable, and would continue to be unable, to perform services in the household; and stated that she was bringing the second cause of action on her husband's behalf for damages.

The prayer of the petition asked for the recovery of all damages claimed in both causes of action.

Exhibit 'A', heretofore noted, was a verified notice of personal injury and claim which was filed in due time with the city clerk. It stated that plaintiff tripped and fell on a city sidewalk; noted the injuries sustained; gave dates of hospital confinement; set out the alleged defect in the sidewalk and the duration of time such defect had existed; alleged such defect was dangerous and that the city had notice thereof; contained an itemized statement of her claim in which, among other things, she included loss of service to family; listed the respective items and amounts of damages claimed to have been sustained as the result of her fall; and demanded judgment for the sum total thereof.

The defendant city attacked plaintiff's petition by filing motions to make definite and certain, also to strike certain allegations of the first cause of action. These motions were overruled and are not involved in this appeal.

The city also leveled a demurrer against plaintiff's second cause of action on grounds the district court was without jurisdiction of the subject of the action and the facts failed to state a cause of action. When this demurrer was overruled the city perfected the instant appeal where now, under a single specification of error, it claims the trial court erred in overruling its demurrer to plaintiff's second cause of action.

In giving consideration to the sole question involved on appellate review the court has decided the problems presented, as well as its opinion, will be simplified by reference at the outset to certain matters which may be regarded as beyond dispute.

The motion to make the petition more definite and certain and to strike certain of its allegations is not abstracted and no claim of error is made with respect to the ruling thereon, hence it must be assumed such motion was properly overruled. This, under well-established rules of the court, means the petition is subject to a liberal construction and that its allegations are to be given the benefit of all reasonable inferences.

G.S.1949, 23-205, provides that where, through the wrong of another, a married woman shall sustain personal injuries causing the loss or impairment of her ability to perform services, the right of action to recover damages for such loss or impairment shall vest solely in her, and that any recovery therefor, shall be for the benefit of her husband so far as he shall be entitled thereto.

In decisions construing the force and effect to be given the foregoing section of the statute it has been held that under its terms the right to recover damages for such services vests solely in the wife and the husband is barred from maintaining an action to recover for the loss thereby sustained (Taylor v. S. H. Kress & Co., 136 Kan. 155, 12 P.2d 808; Clark v. Southwestern Greyhound Lines, 144 Kan. 344, 58 P.2d 1128; Foster v. Kopp, 151 Kan. 650, 100 P.2d 660); and that in maintaining an action to recover damages for the negligent act of another it is not improper for the wife to frame her petition in two causes of action, one for the damages sustained by her and the other for the damages resulting to her husband from the loss of her services (White v. Toombs, 162 Kan. 585, 178 P.2d 206.).

So far as here pertinent G.S.1959 Supp. 12-105, reads:

'No action shall be maintained by any person or corporation against any city on account of injury to person or property unless the person or corporation injured shall within three (3) months thereafter and prior to the bringing of the suit file with the city clerk a written statement, giving the time and place of the happening of the accident or injury received and the circumstances relating thereto: * * *.'

This court has always recognized the power of the legislature to enact a statute establishing conditions precedent to the maintenance of an action against a city for damages to person or property. Indeed it has long been committed to the proposition that the provisions of the statute just quoted, which we pause here to note have been applicable to cities of the first class since 1903 (L.1903, Ch. 122, § 7), to cities of the second class since 1919 (L.1919, Ch. 143, § 1) and cities of the third class since the 1923 revision of our general statutes (R.S.1923, 12-105), establish conditions precedent to the maintenance of an action against a municipality on account of injuries to persons or property; and that it is incumbent upon any person seeking to maintain such an...