Febert v. Upland Mut. Ins. Co.

• Decision Date: 09 April 1977
• Docket Number: No. 48517,48517
• Citation: 563 P.2d 467,222 Kan. 197
• Parties: Kalman FEBERT, Appellant, v. UPLAND MUTUAL INSURANCE COMPANY, Appellee. TEFFT & DONALDSON CONTRACTORS, INC., Appellee, v. Kalman FEBERT, Appellant, and Upland Mutual Insurance Company, Appellee.
• Court: Kansas Supreme Court

Page 467

563 P.2d 467

222 Kan. 197

Kalman FEBERT, Appellant, v. UPLAND MUTUAL INSURANCE COMPANY, Appellee.

TEFFT & DONALDSON CONTRACTORS, INC., Appellee, v. Kalman FEBERT, Appellant, and Upland Mutual Insurance Company, Appellee.

No. 48517.

Supreme Court of Kansas.

April 9, 1977.

Syllabus by the Court

1. In the absence of a pretrial order the issues raised by the facts alleged in the petition control the scope of a lawsuit and evidence may be limited to those issues by a motion for a protective order.

2. When two actions are consolidated for trial, the trial court may make such orders concerning the proceedings or parties as may tend to avoid unnecessary cost or delay.

Harold E. Doherty, Topeka, argued the cause and was on the brief for appellant Kalman Febert.

J. Franklin Hummer, Topeka, argued the cause and was on the brief for appellee Upland Mutual Ins. Co.

Larry L. Luttjohann, of Larry L. Luttjohann, Chartered, Topeka, argued the cause and was on the brief for appellee Tefft & Donaldson Contractors, Inc.

OWSLEY, Justice:

This is an appeal from jury verdicts rendered in two cases which were consolidated for trial. The first case was decided in favor of plaintiff Kalman Febert and against the Upland Mutual Insurance Company. Plaintiff in the second case, Tefft & Donaldson Contractors, Inc., received a verdict against Febert and Upland Mutual. Febert appeals.

The case arose from the following facts. Febert owned rental property located at 2800 Illinois in Topeka. It was insured under a homeowner's policy issued by Upland Mutual. The policy term was from December 8, 1969, to December 8, 1972. On June 28, 1972, the house, then vacant, was partially destroyed by fire. Upland Mutual adjusted the fire damage. The firm of Tefft & Donaldson was employed to repair the damage, amounting to $7,386.10. On or about August 31, 1972, the contractor began repairs. Approximately two weeks later Febert ordered Tefft & Donaldson to cease work and vacate the premises because he was displeased with the quality of the repairs.

On September 19, 1972, Febert filed suit against Upland Mutual. The petition alleged that Upland Mutual insured plaintiff's property; that a fire occurred on the property; that Upland Mutual received notice of the damage, agreed to have the house repaired and pay plaintiff $16,000; that Upland Mutual stopped the repairs and refused to pay plaintiff $16,000; that said amount is due and owing; and that plaintiff is entitled to recover that amount plus reasonable attorney fees.

On September 12, 1973, Tefft & Donaldson filed the second lawsuit, seeking to foreclose a mechanic's lien for all work performed and materials furnished for the repairs on Febert's property.

Both cases were consolidated and set for jury trial, to commence on September 11, 1974. The trial commenced as scheduled, but a mistrial was declared shortly after the jury had been picked because the parties reached a compromise and settlement. Under the terms of the agreement, Tefft & Donaldson would repair the premises in accord with an itemized statement of work. Upland Mutual would pay for the work, totaling $9,073.97.

Tefft & Donaldson completed repairs on or about December 7, 1974. On that date, Tefft, Donaldson, Febert and a friend of Febert's met at the dwelling and toured the premises. Donaldson testified that they went through every room in the house and Febert inspected the work. According to him Febert was happy with the completed repair job and had no complaints about it. At the conclusion of the tour Donaldson gave Febert a release form to sign, indicating Febert's approval. The release was not signed because Febert wanted to talk to his attorney. Febert left and Donaldson locked the premises.

On January 15, 1975, Tefft & Donaldson's counsel prepared a journal entry of dismissal and sent it to Febert's counsel. During oral argument this court was told the journal entry was never signed by Febert's counsel, who was ill and hospitalized.

During the latter part of January or early February, 1975, the house, which was still vacant was vandalized. Damage was estimated at $6,000 to $7,000. Three juveniles were later apprehended as the culprits and dealt with in the juvenile court system. At the time of the second damage the journal entry and the release were still unsigned.

The flames of legal controversy, once thought to be extinguished, flared up anew. Tefft & Donaldson sought to have the journal entry settled and approved. The district court denied the motion, set aside the compromise and ordered the matter be set for jury trial.

Prior to trial the court issued a protective order prohibiting the mention of evidence of vandalism in the presence of the jury because it was not an issue in the case. The court further ordered that any amount awarded by the jury to Febert would be paid directly to Tefft & Donaldson, up to the amount the jury might see fit to award the firm for work performed. Any excess would go directly to Febert.

The second trial began on June 10, 1975. The case went to the jury on June 12. The jury returned a verdict in favor of Febert for...