Fowler v. Mohl
| Decision Date | 28 January 1950 |
| Docket Number | No. 37632,37632 |
| Citation | 168 Kan. 416,214 P.2d 301 |
| Parties | FOWLER v. MOHL et al. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. A demurrer to plaintiff's petition was sustained on January 20, a regular day of the January, 1948 term of district court. On the following April 14, still within the January term, the court permitted plaintiff to amend instanter by interlineation and gave defendants time to plead. Held: Under the foregoing facts and circumstances and those set out in the opinion, the matter of allowing the amendment to plaintiff's petition was within the sound discretion of the trial court, was not res judicata, and defendants' motion to strike the amended petition was properly overruled.
2. The amended petition alleged that an accident and fatal injury occurred at night when deceased's automobile collided with defendants' house-moving equipment on a rural highway. In charging defendant with nine specific acts of negligence, plaintiff's petition stated one of the them thus: 'In suddenly flashing a spot-light, located on the defendant's truck, directly across the windshield of the automobile then being driven and operated by the said Fred S. Fowler, thereby suddenly blinding the said Fred S. Fowler and making it impossible for him to see objects in front of him at a time when the said Fred S. Fowler was too close to the truck and house upon said highway to permit him to avoid a collision, the exact distance from said truck and house being now unknown to plaintiff.' Held: Such allegation does not affirmatively show as a matter of law that plaintiff was guilty of contributory negligence so as to preclude the petition from stating a cause of action, and the general demurrer to the amended petition was properly overruled.
Benedict P. Cruise, of Hays, argued the cause, and Delmas L. Haney, of Hays, and Richard M. Driscoll and Jerry E. Driscoll, both of Russell, were with him on the briefs, for appellants.
Harold W. McCombs, of Russell, argued the cause and was on the briefs for appellee.
This action was brought under the wrongful death statute, G.S.1945 Supp. 60-3203, by a widow seeking to recover for herself and minor children for the death of the husband and father. Defendants bring the case here on appeal from the order of the trial court overruling their motion to strike plaintiff's amended petition from the files and their demurrer to plaintiff's amended petition.
The amended petition alleges that on the night of November 26, 1946, the decedent's car collided with a house which was being moved along the highway by the defendant Mohl, one of the appellants here. Commercial Standard Insurance Company, the other defendant and appellant, carried the liability insurance upon Mohl's house-moving equipment which Mohl operated under a contract carrier's permit issued by the state corporation commission. It is further alleged that the house being moved was 24 feet 5 inches wide and the highway was 23 feet wide; that defendant's truck, dollies and the house thereon blocked the entire highway and the shoulders thereof; that decedent's car crashed into said truck, dollies and house as a direct and proximate result of the negligence of defendant and his agents, representatives and employees. Specific acts of negligence on the part of the defendant were then alleged, nine of them in all, including:
On January 20, 1948, the separate demurrers of the defendants to plaintiff's amended petition were sustained. The journal entry does not indicate the specific reason, but counsel advise us that the trial court sustained the demurrers to the petition on January 20, 1948, because paragraph 5 quoted above affirmatively showed that deceased was guilty of such contributory negligence as would bar plaintiff's recovery.
On April 14, 1948, and still within the January 1948 term of the Russell County District Court, plaintiff asked and obtained leave of court to amend her petition. The amendment was made instanter by interlineation by adding additional language to paragraph 5 so that said paragraph then read as follows: (Portion added by April 14th amendment italicized.)
Defendants objected to the amendments thus made on April 14, 1948, but were overruled and were granted twenty days to further plead to plaintiff's petition as amended. On May 5, 1948, defendants filed their motion to strike plaintiff's amended petition (as amended and filed on April 14, 1948), which motion set forth the following grounds:
demurrers to plaintiff's second amended petition.
'2. That at said time, the plaintiff made no request of the court for leave to file an amended petition in said cause, and plaintiff did not file an amended petition within any time fixed or allowed by the court, or even ask for an extension of time, and did not appeal from the judgment of the court sustaining such demurrers.
'3. That judgment rendered by the court at said time was a final judgment.
'4. That subsequent thereto and more than 60 days thereafter, the plaintiff asked leave of the court in said cause for permission to file a third amended petition, which permission, over objection of the defendants, was by the court granted, and plaintiff thereupon filed her third amended petition in said cause.
'That, by reason of all the above and foregoing, the judgment of the court in said cause sustaining defendants' demurrers has become and is a final judgment in said cause, and that all of the matters and things therein contained are now res adjudicata.'
The motion to strike the amended petition was overruled on November 9, 1948, and defendants were given twenty days to further plead. On November 29, 1948, defendants filed their joint and separate demurrers to said amended petition, stating as grounds therefor:
'1. That the court has no jurisdiction of the persons of the defendants or the subject of this action.
'2. That several causes of action are improperly joined.
'3. That the petition does not state facts sufficient to constitute a cause of action.
demurrers to plaintiff's second amended petition; and that at said time, the plaintiff made no request of the court for leave to file an amended petition in said cause, and plaintiff did...
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T. M. Deal Lumber Co. v. Vieux
...was sustained it was within the sound judicial discretion of the district court to grant leave to file an amended petition. Fowler v. Mohl, 168 Kan. 416, 214 P.2d 301; Moeller v. Moeller, 175 Kan. 848, 852, 267 P.2d 536. The court or judge has full discretion with respect to allowing amendm......
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Fowler v. Mohl, 38437
...decedent resulting from a collision on a public highway. The case was here previously on a question of pleadings Fowler v. Mohl, 168 Kan. 416, 214 P.2d 301. See also the companion case of Howe v. Mohl, 168 Kan. 445, 214 P.2d 298, in which recovery was sought for the damage to the vehicle dr......