Fenly v. Revell, No. 38180

• Court: United States State Supreme Court of Kansas
• Writing for the Court: PARKER
• Citation: 228 P.2d 905,170 Kan. 705
• Parties: FENLY v. REVELL et al.
• Docket Number: No. 38180
• Decision Date: 10 March 1951

Page 905

228 P.2d 905 170 Kan. 705 FENLY
v.
REVELL et al. No. 38180. Supreme Court of Kansas. March 10, 1951.

Page 906

Syllabus by the Court.

1. An agent, a servant or an employee, is liable to and may be sued by his principal, his master, or his employer, for damages which the latter, in the absence of fault on his part, has been compelled to pay third persons because of the negligence of such agent, servant or employee.

2. Where a principal, master or employer, not at fault, has become obligated to respond in and does pay damages to a third person for the negligence of his agent, servant or employee, he will be subrogated to the rights of the injured party and may maintain an action and recover the amount so paid from the agent, servant or employee, the one primarily liable.

3. The history, nature, and scope of the doctrine of subrogation discussed and considered.

4. The petition in an action by an employer against employees to recover money he had paid to a third party in settlement of damages sustained by the latter as a result of negligence for which such employees were primarily liable examined, and held, to state facts sufficient to require the overruling of a demurrer based on grounds that pleading (1) shows on its face the plaintiff was not the real party in interest and (2) fails to state a cause of action against the defendants.

Earl C. Moses, Jr., of Great Bend, argued the cause and J. A. Mermis, Jr., of Great Bend, was with him on the briefs for appellant.

Tudor W. Hampton, of Great Bend, argued the cause, and S. R. Blackburn and Ed. R. Moses, both of Great Bend, were with him on the briefs for appellees.

[170 Kan. 706] PARKER, Justice.

The plaintiff instituted this action against the defendants to recover money he had paid a third party in settlement of damages sustained by the latter as a result of defendants' negligence while in his employ. The appeal is from a judgment sustaining a demurrer to an amended petition, based on grounds such pleading showed on its face the plaintiff was not the real party in interest and failed to state facts sufficient to constitute a cause of action in his favor and against defendants.

The pleading in question, which does not appear from the record before us to have been motioned and is therefore entitled to a liberal construction, contains everything required to permit proper disposition of all questions raised by the parties and should be quoted at length. Omitting formal averments and the prayer it reads:

'3. That at all times hereinafter mentioned Cleo Revell was a contractor in the business of transporting equipment for those who desired and contracted for his services; that at all times hereinafter mentioned Arthur D. Branson was an agent and employee of said Cleo Revell assisting Cleo Revell in carrying out his business of the transportation of equipment.

Page 907

'4. That on or about the 11th day of July, 1948, the plaintiff employed defendants to assist in moving a rotary rig belonging to Braden-Greene Drilling Company, located at Well No. C-3 on the Braden lease, Southeast of Hutchinson, Reno County, Kansas, that plaintiff contracted to move for said Braden-Greene Drilling Company; that in performing this job defendant, Arthur D. Branson, was using a truck on which a gin pole was mounted; a winch line was run from a winch on the truck through the snatch block of the gin pole, and attached to the rotary rig; that while in the process of hoisting the rotary rig on to plaintiff's truck, by means of the winch and gin pole the operator of defendant's truck negligently permitted the end chain on the end of the winch line to pass through the snatch block on the gin pole, which snatch block was too small to permit the entry of the end chain, thereby causing the end chain to break because of undue strain and permitted the rig to fall, damaging said rig thereby.

'5. That the injury sustained by plaintiff was due to the negligence of defendant which was the sole and proximate cause of plaintiff's injury in the following particulars, to-wit:

'(a) Failure to maintain a proper lookout.

'(b) Failure to properly operate the winch on defendant's truck.

'6. That plaintiff was under a duty and obligation to pay Braden-Greene Drilling Company the sum of Two Thousand Nineteen Dollars and Eleven Cents ($2,019.11) for the damage done to said rig caused by defendant's negligence and that plaintiff has paid said amount in full; that plaintiff is subrogated to [170 Kan. 707] the rights of Braden-Greene Drilling Company against defendants for the amount of said damage, namely Two Thousand Nineteen Dollars and Eleven Cents ($2,019.11) which plaintiff was caused to pay due to the negligence of defendants and that all times hereinabove mentioned plaintiff was free of negligence in the premises.'

A careful examination of the quoted allegations of the petition, especially those to be found in paragraph 6 thereof, makes it obvious the instant action is predicated upon the theory that where an employer or master, not at fault, has become obligated to respond in and does pay damages to a third person for the negligence of his employee or servant, he will be subrogated to the rights of the injured party and may maintain an action to recover from the employee or servant, the one primarily liable, the amount so paid. Consideration of the demurrer and the grounds on which the judgment sustaining it were based makes it equally clear it is the position of appellees and the view of the trial court that appellant was not the real party in interest and hence could not maintain the action because the facts and circumstances set forth in the amended petition did not give rise to a cause of action. Thus it appears the paramount questions for decision are: (1) Does the petition contain averments disclosing the essential facts on which appellant's theory depends and if so (2) whether those facts are sufficient to constitute a cause of action in favor of appellant and against appellees.

We have little difficulty in concluding the first question to which we have just referred must be answered in the affirmative. Whatever may be said for appellees' contentions respecting certain allegations of the petition, to which we shall subsequently refer, it is certain those allegations must be construed as charging that while engaged as employees in the performance of work for appellant, and without any negligence on his part, the appellees' negligence resulted in injury to the oil rig appellant was moving under contract, thus placing him under legal obligation to pay the owner of such rig for the damages it had sustained and that appellant did pay those damages.

Decision of the second question...