Early v. Burt

• Decision Date: 30 January 1932
• Docket Number: 30131.
• Citation: 134 Kan. 445,7 P.2d 95
• Parties: EARLY et al. v. BURT.
• Court: Kansas Supreme Court

7 P.2d 95

134 Kan. 445

EARLY et al. v. BURT.

No. 30131.

Supreme Court of Kansas

January 30, 1932

Syllabus by the Court.

In widow's action for wrongful death, amendment to petition alleging deceased was resident, and that no personal representative had been appointed, held not to change cause of action, and therefore action was not barred by limitation (Rev. St. 1923, 60--3203, 60-- 3204, 60--759).

Contributory negligence is generally question for jury, under particular facts and circumstances.

Where prior original negligence efficiently causes accident intervening cause will not generally relieve defendant from liability.

Where policeman was fatally injured when motorcycle struck filled-in sewer trench across street, city, under construction contract, held not joint tort-feasor.

That dependents of deceased employee obtained compensation under Workmen's Compensation Act held no defense to action for wrongful death against negligent third person (Rev. St. 1923 44--501 et seq., as amended).

1. In an action by a widow and guardian of minor children to recover damages under R. S. 60--3203 and 60--3204, for the wrongful act or omission of another, resulting in the death of the the husband and father, an amendment of the petition by alleging that the deceased was a resident of Butler county, Kan., at the time of his death, and that no personal representative had been appointed, did not change the cause of action nor the claim of the plaintiff.

2. Where such an amendment as described in the first paragraph of this syllabus is made more than two years after the death occurred, the amendment relates back to the commencement of the action, and, because it does not change the cause of action or claim of the plaintiff, the action is not barred by the two-year statute of limitations.

3. The question of contributory negligence is one for the jury to determine from all the facts and circumstances of the case unless they raise such a presumption of negligence on the part of the injured person that as a matter of law no recovery can properly be had.

4. Where the prior or original negligence which produced the unsafe condition was the efficient cause of the injury another and intervening cause will not generally relieve the defendant from liability.

5. The connection of the defendant in this action with the city of El Dorado, in relation to the building of a sewer by the defendant under contract with the city, is such as does not under the evidence make the city a joint tort-feasor with the defendant.

6. The ruling in the case of Moeser v. Shunk, 116 Kan. 247, 226 P. 784, followed and approved to the effect that, when an employee and his employer are within the provisions of the Workmen's Compensation Act, and the employee is injured by the negligence of a third person, the fact that the employee, or his dependents in case of his death, have proceeded to obtain compensation from his employer, is no defense to an action for damages, nor should that fact be shown upon the trial of such action.

Appeal from District Court, Reno County; J. G. Somers, Judge.

Action by Laura Early, individually and as guardian of the persons and estate of John Early and others, minors, against C. L. Burt. Judgment for the plaintiff, and the defendant appeals.

J. S. Simmons, Alva L. Fenn, Max Wyman, C. M. Williams, D. C. Martindell, and W. D. P. Carey, all of Hutchinson, for appellant.

C. H. Brooks, Willard Brooks, Howard T. Fleeson, and H. T. Horrell, all of Wichita, A. C. Malloy, R. C. Davis, and Warren H. White, all of Hutchinson, and Ezra Branine and Alden Branine, both of Newton, for appellee.

HUTCHISON J.

The appeal in this case is by the defendant C. L. Burt, a contractor, from a judgment against him for $9,000 in favor of Laura Early and Laura Early, as guardian of the persons and estate of John, Edward, and William Early, minors, as damages for the negligence of the defendant which caused the death of John Early, the husband of Laura Early, and father of the minors.

The questions involved are whether the action is barred by the two-year statute of limitations (R. S. 60--3203), whether the negligence of the defendant or that of the ctiy of El Dorado was the proximate cause of the death, whether the deceased was guilty of contributory negligence, whether the rights of the parties were in any way governed or affected by the Workmen's Compensation Law and whether or not some of the instructions given were erroneous?

The defendant Burt had entered into a contract with the city of El Dorado to construct a sewer for the city. The work was to be done under the supervision of the city engineer, and the contract provided for changes or modifications of the plans, and required the defendant to use every precaution to prevent harm or accident and to assume all liability for damages accruing from any accident which may be due to carelessness, omission or neglect.

The sewer, as originally planned, approached the manhole in the center of Towanda street directly from the south, but it was ordered changed by the city engineer, so that it reached and touched that street on the south several feet east of the original location and crossed the south half of the street to the manhole in a diagonal northwesterly direction, making a cut in the cement slab 34 feet in length and about 25 or 30 inches in width. When the sewer pipe was laid and connected, the trench was filled with earth and tamped but not watered, the dirt being piled about four inches above the level. This work was done partly by the city force and partly by the employees of the contractor. It was finished November 22, and the contractor received his compensation for this extra and other work shortly thereafter. Where the automobiles crossed the ditch, the dirt packed. Some new dirt was added by some one, but, when it rained about the 1st of February, it sank much more, and at the time of the accident on February 4 the dirt in the trench was about four inches below the level at the usual crossing places and less elsewhere.

The deceased was the motorcycle policeman for the city of El Dorado, and was proceeding in the course of his duties west on Towanda street at about 9:30 p. m., when, in attempting to cross this cut in the pavement, he was thrown upon the pavement, fracturing his skull and otherwise injuring him, from which injuries he died about an hour and a half later.

The amended petition alleges nine acts and omissions of negligence. The answer, in addition to a general denial, pleaded (1) the change in the location of the sewer by requirement of the city to have made the necessity of cutting the slab, whereas originally for the shorter distance it was to have been tunneled, and that the city engineer directed and supervised all of the work on this excavation, and ordered that the cement blocks be not replaced when the ditch was refilled; (2) settlement made by the city paying plaintiff a substantial sum; and (3) contributory negligence by riding across the cut at a high rate of speed knowing its condition at that time. The reply consisted of general and special denials and allegations as to any payments received from the city being under the Workmen's Compensation Law instead of being in way of settlement.

Timely and appropriate demurrers, motions, objections, and exceptions were made throughout the trial to raise and preserve the several questions now and here presented on appeal.

The jury, in addition to the general verdict, answered seventeen special questions, one of which is of particular importance at this time. It found the negligence of the defendant to consist of only one of the nine acts and omissions alleged, and noted it as stated in the amended petition as follows: "In failing to exercise due care or any care whatever in filling in said strip in that the fill-in was not tamped or soaked, or if tamped or soaked the same was insufficient, and in that the materials used for the fill-in were not of the proper kind and substance in that they settled causing a depression in said pavement."

The first point urged by the appellant is that the action is barred by the two-year statute of limitations. The action was brought under R. S. 60--3203 and 60--3204, by the widow and guardian of the minor children of the deceased. R. S. 60--3203, provides for the bringing of such an action for the wrongful act or omission of another by the personal representative of the deceased within two years for the exclusive benefit of the widow and children of the deceased. R. S. 60--3204, provides that, when the deceased was a resident of this state at the time of his death, and no personal representative has been appointed, the action may be brought by the widow. The original petition failed to state that the deceased was a resident of this state at the time of his death, and that no personal representative had been appointed. The accident and death occurred, as stated above, on February 4, 1928. The original petition was filed July 5, 1928. On January 14, 1929, an amended petition was filed, but it likewise failed to mention these facts, and on April 3, 1930, a second amended petition was filed, stating that the deceased was a resident of Butler county, Kan., at the time of his death, and that no personal representative had been appointed.

Appellant insists that this second amended petition is the first one that actually stated a cause of action, and that it was filed more than two years after the accident and death, urging particularly that the former petitions did not show that the widow and guardian had any right to bring or maintain such an action. Appellant cites several early Kansas decisions tending strongly to support this view, among which are the following: City...