Cronin v. State Highway Commission

• Decision Date: 07 December 1957
• Docket Number: Nos. 40540,40541,s. 40540
• Citation: 318 P.2d 1066,182 Kan. 42
• Parties: John F. CRONIN, Appellee, v. STATE HIGHWAY COMMISSION OF KANSAS, Appellant. Jean CRONIN, Appellee, v. STATE HIGHWAY COMMISSION OF KANSAS, Appellant.
• Court: Kansas Supreme Court

Page 1066

318 P.2d 1066

182 Kan. 42

John F. CRONIN, Appellee, v. STATE HIGHWAY COMMISSION OF KANSAS, Appellant.

Jean CRONIN, Appellee, v. STATE HIGHWAY COMMISSION OF KANSAS, Appellant.

Nos. 40540, 40541.

Supreme Court of Kansas.

Dec. 7, 1957.

Syllabus by the Court

The petitions in actions against the State Highways Commission to recover damages sustained in a single accident and alleged to have been caused from a defect in a state highway examined, and held, the allegations of such pleadings fail to disclose that at the time of the accident there was a defect in the highway within the purview of the statute (G.S.1949, 68-419).

Wm. B. Kirkpatrick, Asst. Atty. Gen., argued the cause, and Donald C. Amrein, Topeka, was with him on the briefs for appellant.

Horace A. Santry and Joseph B. Crowther, Salina, were on the brief for appellees.

PARKER, Chief Justice.

These are separate actions against the State Highway Commission by John and Jean Cronin to recover damages for personal injuries and property loss sustained in a single accident, allegedly caused by a defect in a State Highway. Demurrers to the respective petitions, based on the ground those pleadings did not state facts sufficient to constitute a cause of action, were overruled in the court below and the Highway Commission perfected appeals from such rulings. Thereupon, it appearing that they presented a common question for decision, the appeals were consolidated and subsequently briefed and argued as if only one appeal was involved. Therefore we proceed on the same basis, pointing out that in doing so what is here stated and held will be decisive of the rights of the parties in both actions.

In its brief appellant makes what counsel for appellees, with commendable candor, concede is a fair summarization of the factual allegations of the pleadings necessary to disclose the appellate issues involved. We have reached a like conclusion with respect to such statement and have therefore decided to make it a part of this opinion. It reads:

'So far as is important to these appeals the petitions allege that at 8:35 A. M., on August 29, 1954, John Cronin was driving and Jean Cronin was a passenger in an automobile proceeding westerly on Kansas Highway 18 approximately 15 miles west of Junction City, Kansas in Dickinson County. That at said point new construction had been recently completed upon said highway and that during said time of construction traffic on said highway had been routed over a surfaced road in a southern portion of the right of way. That on said date the new construction on the north portion of the right of way had been previously opened for traffic and there were no barricades, signs or warning signals of any kind at said point to indicate that both roads were not open for travel. That plaintiff, having travelled said highway during this construction and having driven on the southern fork at said point, proceeded forward on the south. That defendant State Highway Commission had excavated a ditch across said southern road and that plaintiff suddenly perceived said excavation but could not stop in time to avoid driving into it, resulting in injury. That the proximate cause of the damage sustained by plaintiff was the defective condition of the highway at the point of excavation and that there were no warning signs at or near the excavation nor any sign directing the public to travel on the new construction.'

From an examination of the briefs it appears, indeed the parties admit, the sole question involved in this case is whether the heretofore related allegations of the petitions state a cause of action, under the provisions of G.S.1949, 68-419, against the State of Kansas for injuries and other damages sustained by appellees by reason of a defect in a state highway. In other words, since the two cases are here on rulings on demurrers to the petitions under conditions and circumstances where all other facts essential to recovery are admitted, the only question for decision is whether such allegations disclose that on the date of the accident in question there was a defect in a state highway within the meaning of 68-419, supra, which, so far as here pertinent, reads:

'Any person who shall without contributing negligence on his part sustain damage by reason of any defective bridge or culvert on, or defect in a state highway, not within an incorporated city, may recover such damages from the state of Kansas; * * *'.

In approaching the issue thus presented it should be kept in mind that it must be determined in the light of well-established principles dealing with situations where, since the State cannot otherwise be sued, its liability is purely statutory. With respect to the State's liability for defects in highways we have repeatedly held that such liability, if any, is by reason of 68-419, supra; that it has no liability under that statute, unless by reason of a defect in a state highway; that the question whether an alleged defect comes within the purview of its terms is a question of law; that in order to recover against the State the person seeking recovery must bring himself clearly within those terms; and that we have no right to enlarge the scope of such statute nor to amend it by judicial interpretation. For just a few of our...