Gibbs v. Mikesell

Decision Date10 May 1958
Docket NumberNo. 40942,40942
Citation325 P.2d 359,183 Kan. 123
PartiesMarvin K. GIBBS, Appellee, v. Gordon S. MIKESELL, Appellant.
CourtKansas Supreme Court

Syllabus by the Court

1. A plaintiff may plead in his petition a cause of action on the ground of ordinary negligence and may also plead in the alternative a cause of action which states facts involving the doctrine of last clear chance, and he may recover under whichever aspect proof of the case may show.

2. In an action to recover damages alleged to have been sustained when an automobile driven by the plaintiff collided with a car parked in an intersection driven by the defendant, pleaded in the alternative as set forth in Syllabus No. 1, it is held: That the order of the trial court overruling a demurrer to the second amended petition is correct.

3. When the plaintiff in an action has two or more distinct reasons for obtaining the relief sought, or when there is more or less uncertainty as to the grounds of recovery or as to the exigencies of proof, the petition may set forth a single claim in more than one cause of action. The pleader may state his case in as many ways as he sees fit in separate causes of action in the alternative to meet any possible phase of the evidence.

4. The essential elements of the doctrine of last clear chance are stated as set forth in the opinion.

5. Where a motion to make definite and certain requests the plaintiff to plead his evidence and to plead matters which properly should have been pleaded by the defendant, it must be overruled.

6. Where a motion to make an amended petition definite and certain should have been overruled in toto, the amended petition as well as the second amended petition are entitled to a liberal interpretation and construction.

7. The operator of an automobile on a public highway may assume others using the highway will observe the laws of the road and he is not guilty of contributory negligence in such an assumption unless and until he has knowledge to the contrary.

Warren D. Andreas, Winfield, argued the cause, and Harry O. Janicke and J. A. Herlocker, Winfield, were with him on the briefs for appellant.

Marion P. Mathews, Winfield, argued the cause, and Lawrence E. Christenson and W. R. Mathews, Winfield, were with him on the briefs for appellee.

SCHROEDER, Justice.

This is an appeal from a ruling of the lower court overruling defendant's demurrer to plaintiff's second amended petition which pleads a cause of action in common law negligence and, in the alternative, a cause of action under the doctrine of last clear chance.

The fundamental question presented is whether the plaintiff in alleging the doctrine of last clear chance in the second amended petition has alleged facts which admit contributory negligence as a matter of law.

Summarized in part, the allegations of the second amended petition were that at or about 9:45 o'clock p. m., on August 20, 1955, plaintiff was driving his automobile north approaching an intersection on U. S. Highway No. 77 two miles south of Winfield, Kansas; that said highway was a hard-surfaced black-topped highway approximately 22 1/2 feet in width and the intersecting township road, which formed the intersection; was gravel and approximately 20 feet in width; that U. S. Highway No. 77 runs downgrade from the south to the intersection which is visible for a distance of approximately 500 feet; that plaintiff approached the intersection from the south at a speed of approximately 55 miles per hour; 'that it was night time and dark and both headlights were burning brightly; that when plaintiff was approximately 500 feet South of said intersection he met an automobile proceeding south; that after meeting said automobile, plaintiff placed his headlamps on the bright position and proceeded on north; that said U. S. Highway No. 77 is black in color and had been recently resurfaced; that when plaintiff was at a distance of approximately 375 feet south of said intersection, he first observed an automobile, driven by defendant, dark in color, on the north portion of said intersection without lights, the exact location being unknown to plaintiff, and that said automobile was facing in a west-northwest direction, blocking or partially blocking both the east and west lanes of traffic; that plaintiff anticipated defendant would obey the highway laws and regulations and clear said intersection but nevertheless slowed down, the exact speed and location being unknown to plaintiff, and used his brakes; that no automobile was approaching from the north going south; that the west lane was clear of other traffic, and the intersection could have been cleared by defendant with complete safety; that shortly thereafter, the exact time and location of plaintiff's automobile being unknown to plaintiff, plaintiff realized that defendant's automobile was parked and that defendant was not clearing said intersection or moving in any direction; that plaintiff immediately applied his brakes hard and continued to so apply them until the time of the hereinafter mentioned collision, thereby skidding his wheels; plaintiff attempted to steer his automobile to the right of defendant's automobile to avoid collision but due to the location and position of the defendant's automobile, the left side of the plaintiff's automobile skidded into and collided with the rear end of the automobile driven by defendant; that as a result of said collision plaintiff was thrown out of his automobile and injured and damaged as hereinafter set out.'

The second amended petition then alleges:

'(5) That plaintiff was free from all negligence and the collision and resulting damage to plaintiff was the direct and proximate result of the negligent acts and omission of acts of defendant as follows, to-wit:

'(a) Driving in the nighttime without lights of any type as required by General Statutes of Kansas, 1949, 8-581.

'(b) Stopping and parking in the intersection of a Federal Highway without cause and without lights in the nighttime in violation of General Statutes of Kansas, 1949, 8-572 and 8-586.

'(c) Parking and stopping in an intersection as before described in such position that both lanes of traffic were blocked.

'(d) Failure to clear said highway and intersection when defendant knew or should have known he was blocking both lanes of traffic and defendant knew or should have known that he was creating a hazard to other users of the highway, and particularly this plaintiff.

'(e) Failure to proceed forward and drive out of plaintiff's lane of traffic when the south bound traffic lane was free and clear and he could have done so with complete safety.

'(f) Failure to keep a close and careful lookout for any and all traffic lawfully using said highway and particularly this plaintiff.

'(g) Failure to signal or warn plaintiff that he was stopped and parked in said intersection as above described.

'(6) The plaintiff herein denies that he was guilty of any negligence but that even if he was negligent in any way, such negligent acts, if any, are unknown to plaintiff, in proceeding along the highway as alleged, or otherwise, such negligence, if any, had ceased prior to the collision; that the time at which plaintiff's negligent acts, if any, had ceased, is unknown to plaintiff; and, the location of plaintiff's car at such time as his negligent acts, if any, had ceased, is also unknown to plaintiff; and, plaintiff alleges that at such time as his negligent acts, if any, had ceased, the defendant saw or in the exercise of ordinary care, should have seen the position of peril of plaintiff and could have then and there avoided said accident and collision by any one of the following acts:

'(a) driving his car forward

'(b) turning his automobile to his left

'(c) driving his automobile on the right half of said roadway

'(d) moving his car in any manner so that both the north and south lanes of traffic would not be blocked, leaving plaintiff one lane free from obstruction.

'(7) That as a result of the aforementioned collision and the negligence of defendant, plaintiff was thrown out of his automobile and injured and damaged as follows * * *'

The appellant (defendant) asserts that the second amended petition must be subjected to strict construction by reason of a motion to make definite and certain which the trial court overruled.

In determining the question whether a petition is to be given a liberal or strict construction when attacked by demurrer, the rule is that strict construction applies only when a meritorious motion to make definite and certain has been successfully resisted by the plaintiff. Vitt v. McDowell, Motors, Inc., 180 Kan. 800, 308 P.2d 115; and Powell v. Powell, 172 Kan. 267, 239 P.2d 974. Where a trial court has properly sustained a motion to make a petition definite and certain and to strike in whole or in part, and the plaintiff has complied therewith, the amended petition when challenged by demurrer, as being insufficient to state a cause of action, will be liberally construed. Hickert v. Wright, 182 Kan. 100, 319 P.2d 152.

The mere filing of a motion to make definite and certain is insufficient to require strict construction. In Roehrman v. D. S. & O. Rural Electric Cooperative Ass'n, 174 Kan. 498, at page 503, 256 P.2d 872, at page 876, this court said:

'* * * The trouble from their standpoint is that a motion to make a petition more definite and certain does not lie when the pleading attacked is sufficiently definite and certain to make the nature of the charge apparent and that a petition which fairly apprises the defendant of what the plaintiff's claim is to be is not subject to a motion to make more definite and certain. When that is the situation, where such a motion is properly resisted and overruled, the decisions on which appellants rely have no application and the attacked pleading is subject to liberal construction notwithstanding. * * *'

A motion to make definite and certain was lodged...

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