Gibson v. Bodley
| Decision Date | 23 January 1943 |
| Docket Number | 35740,35741. |
| Parties | GIBSON v. BODLEY et al. (two cases). |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Motions to strike, to make definite and certain, and to state and number separately, rest in trial court's sound discretion, and from rulings thereon an appeal does not ordinarily lie.
Unless it appears that trial court's rulings on motions to strike, to make definite and certain, and to state and number separately, prejudice or will prejudice substantial rights of a party, ruling will not be reversed.
Unless it appears that trial court's ruling on motions to strike, to make definite and certain, and to state and number separately, affect substantial right and in effect determines the action, the ruling is not appealable.
Where plaintiff negligently places himself in position of danger his negligence ceases, defendant sees plaintiff in position of danger, or by exercise of due care should see plaintiff in such position, and by exercising due care had a clear chance to avoid injuring plaintiff, defendant failed to exercise such due care, and that as a result plaintiff is injured "last clear chance" doctrine is applicable.
Petition alleging that defendants negligently drove their automobile at speed greater than was reasonable and prudent, and that while approaching plaintiff's automobile defendants swerved their automobile across center of highway directly into side of plaintiff's automobile, stated a cause of action on a primary ground of negligence.
Petition alleging that defendants knew, or by exercise of ordinary care should have known, that plaintiff was in imminent danger and inescapable peril from negligent approach of defendants' automobile, and that defendants by exercise of ordinary care could have prevented collision, but carelessly failed to do so, was insufficient to state a cause of action on theory of "last clear chance".
After proper motion to make material allegations of petition more definite and certain has been overruled, such allegations cannot be upheld against a general demurrer unless they fairly state a cause of action on some definite theory without resort to inferences or construction of doubtful language.
Though a ruling on a motion to make a pleading definite and certain is not ordinarily appealable, the propriety of the order overruling the motion will be considered on review of an order overruling a general demurrer to the same pleading.
Where a petition is properly attacked, at least in part and as to some material portion, by motion to make definite and certain, but motion is successfully resisted by plaintiff, petition is thereafter subject to critical analysis and is strictly construed against plaintiff when challenged by general demurrer.
Plaintiff may plead in his petition all grounds of negligence known to him, including defendant's negligent failure to avoid injury under last clear chance doctrine, but, to rely on doctrine, elements of doctrine must be pleaded when petition is properly and timely challenged by motions and demurrer.
Allegation as to special hazard in petition alleging that defendants suddenly swerved their automobile across center of highway and directly into plaintiff's automobile, and that defendants failed to diminish the speed of their automobile when special hazard existed, should have been stricken.
It is common knowledge that full extent of injuries resulting from automobile collision frequently are not definitely ascertainable until considerably later.
Doctrine of "proximate cause" does not apply as between an innocent third person and joint tort-feasors, where tort-feasors' negligent acts were substantially concurrent or successive, and negligence of each contributed directly to produce the injury, without occurrence of any new and independent force or intervening efficient cause to break connection between such acts.
Substantially concurrent negligent acts of two or more persons render all liable as "joint tort-feasors" where the acts of each contribute to the injury.
Where concurrent negligent acts of joint tort-feasors contribute to bring about injury to an innocent third person, the degree of the tort-feasors' culpability is immaterial.
Where plaintiff's automobile was struck by automobile traveling in opposite direction and was thrown partly across highway, and while plaintiff's automobile was in such position, but before plaintiff was able to remove himself therefrom, plaintiff's automobile was struck by a second automobile which was approaching at high rate of speed, there was no "misjoinder of causes" of action for plaintiff to proceed against the drivers of both of the other automobiles.
1. Motions to make a pleading definite and certain or to strike rest in the sound discretion of the trial court and unless the rulings thereon prejudice, or will prejudice, a substantial right or determine the action, an appeal from such ruling ordinarily does not lie.
2. Where a petition is properly attacked, at least in part, as to some material portion by motion to make definite and certain and later by motion to strike the same indefinite features thereof, and both motions are successfully resisted by plaintiff, the rulings on such motions will be considered in connection with an order overruling a subsequent general demurrer. In ruling on such demurrer the petition is subject to critical analysis and is strictly construed against the pleader.
3. Plaintiff may plead in his petition all the grounds of negligence known to him, including the negligent failure of a defendant to avoid injury under the doctrine of last clear chance, but in order to rely upon the latter theory of negligence the essential elements of the doctrine must be pleaded in order to make it available, when the petition is properly and timely challenged by motions and demurrer.
4. Where a person while driving his automobile on his own and proper north side of a highway is struck by an automobile traveling in the opposite direction and plaintiff's car is thrown partly across the highway and the other car is thrown onto the south side of the highway, and while plaintiff's car is in such position but before plaintiff is able to remove himself therefrom, and without the occurrence of any new and independent force or intervening efficient cause to break the connection between the original wrong and injury, plaintiff's car is struck by a second automobile, so that both negligent acts concurred to produce the final and complete result, it does not constitute misjoinder of causes of action for plaintiff to proceed against both tortfeasors in the same action.
Appeal from District Court, Johnson County; G. A. Roberds, Judge.
Actions by Edward T. Gibson and by Sybil Gibson against Lavina M. Bodley, Clayton Bodley, Joyce Hall, and T. F. Fansher to recover for damages resulting from automobile collisions. Motions of Clayton Bodley and Lavina M. Bodley to make the amended petitions more definite and certain and to strike portions thereof and demurrers were overruled, and they appeal.
Thos. M. Van Cleave, of Kansas City (Edwin S. McAnany and J. H. Brady, both of Kansas City, and Clayton Brenner, of Olathe, on the brief), for appellants.
Howard E. Payne, of Olathe, and Harry B. Jenkins, of Kansas City, Mo., for appellee.
Two actions were instituted to recover damages alleged to have resulted from collisions with two automobiles. One case (No. 35,740) was brought by Edward T. Gibson, the driver of his car. The other action (No. 35,741) was instituted by Sybil Gibson, an occupant of the Edward T. Gibson car. Both actions were against the same defendants, to-wit: Clayton Bodley and Lavina M. Bodley, who were occupants of the car involved in the first collision and against Joyce Hall and his alleged agent, Fansher, the latter being the driver of the car involved in the second collision.
Motions of the defendant Bodleys to make the respective amended petitions definite and certain and to strike portions thereof were overruled. Demurrers by the same defendants to the amended petitions were also later overruled. It is from those adverse rulings that the defendant Bodleys appeal. Whether the other defendants filed any motions, demurrers or pleadings we are not advised. At any rate, only the defendant Bodleys have appealed.
We are advised the amended petitions in the respective cases, insofar as here material, were essentially the same and that a review of the ruling on the motion and demurrer in Case No. 35,740, will determine the correctness of the ruling on the same motion and demurrer in Case No. 35,741. Upon request the cases have, therefore, been consolidated on appeal. Only the amended petition, motion and demurrer in Case No. 35,740, that being the Edward T. Gibson case, have been abstracted. We shall direct our attention to such portions of that amended petition as are necessary to rule upon appellants' contentions. In order to properly understand appellants' contentions with respect to the motions and the two grounds of their demurrer it will be necessary to quote or set forth the substance of various portions of the amended petition somewhat at length. The demurrer challenged the sufficiency of the amended petition to state a cause of action against appellants and charged that two alleged causes of action were improperly joined.
Paragraph two of the amended petition alleged: 2 "That on September 13, 1940, at or about five o'clock p.m., this plaintiff was driving his Oldsmobile sedan westward towards Lawrence, Kansas, on Highway No. 10 at a point about five miles west of Eudora, Kansas, and was exercising ordinary care for his own safety; that his car was being operated in a careful and prudent manner...
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