Giltner v. Stephens

• Decision Date: 03 May 1947
• Docket Number: 36706.
• Citation: 180 P.2d 288,163 Kan. 37
• Parties: GILTNER v. STEPHENS.
• Court: Kansas Supreme Court

180 P.2d 288

163 Kan. 37

GILTNER v. STEPHENS.

No. 36706.

Supreme Court of Kansas

May 3, 1947

Appeal from District Court, Labette County; Harry W. Fisher, Judge pro tem.

Action by O. H. Giltner against H. P. Stephens for personal injuries allegedly resulting from the negligence of the defendant. From rulings on the pleadings including the overruling of a demurrer filed by plaintiff to the defendant's amended answer, the plaintiff appeals.to plaintiff's third amended petition could not be considered. Gen.St.Supp.1945 60-3314.

Syllabus by the Court.

1. Examination of the pleadings in an action brought to recover damages for personal injuries discloses that the trial court's rulings on motions to make the answer more definite and certain, to strike allegations therefrom, and to elect between asserted inconsistent defenses were not appealable orders.

2. An objection that an answer contains inconsistent defenses cannot be raised by a demurrer.

3. A farmer engaged in building a large barn on his farm is not necessarily operating under the workmen's compensation act if the work being done is incident to his agricultural pursuits and it is not shown that the farmer is habitually devoting a substantial amount of his time and labor to 'building work' as a part of his regular trade or business.

4. As a general rule, in the absence of a cross-appeal, an appellee cannot present for a review by this court any rulings made by a trial court.

Jack L. Goodrich and A. L. Foster, both of Parsons for appellant.

Elmer W. Columbia, of Parsons (John B. Markham and Herman W. Smith, Jr., both of Parsons, on the brief), for appellee.

BURCH Justice.

The appeal in this case is by the plaintiff from rulings on the pleadings, including the overruling of a demurrer filed by the plaintiff to the defendant's amended answer. The defendant did not file a cross-appeal but contends in this court that the plaintiff's demurrer to the amended answer searches the entire record and that this court, therefore, should consider the defendant's demurrer to the plaintiff's third amended petition. The defendant also asserts that examination of such petition reveals that the plaintiff's cause of action, if any, arose under the workmen's compensation act and that consequently, the district court did not have original jurisdiction of the action and that the question of jurisdiction can be properly raised in and considered by this court. The questions presented necessitate examination of the pleadings.

Such an examination reveals that the plaintiff alleges that the defendant is the owner of a large dairy and stock farm; that defendant orally hired the plaintiff as a carpenter and agreed to provide him with co-servants for the purpose of constructing a large dairy barn on the farm; that defendant provided the plaintiff with an incompetent co-servant named McDowell, who was totally deaf and emotionally unstable; that plaintiff advised the defendant as to the in competency of McDowell but that the defendant failed to replace the employee. The petition further alleges that the defendant personally began work on the job on December 4, 1943, and that the defendant was not skilled in construction work and was not competent to perform any services on the job other than that of a common laborer, which fact was unknown to the plaintiff but well known to the defendant; that on said date the plaintiff and the defendant and the incompetent co-servant attempted to raise a girder weighing 1500 pounds by means of a derrick or gin pole and that in the course of the attempt the defendant and the incompetent co-servant pulled the block rope and raised the girder about nine feet above the ground and four or five inches above the wall upon which it was to be placed; that plaintiff told the defendant and the co-servant to 'hold it' and started after a stepladderon which the plaintiff intended to climb and place the girder in proper position before it was lowered upon the wall; that as the plaintiff walked toward the ladder the defendant yelled, 'look out'; that plaintiff looked up and saw the end of the rope which the defendant and the co-servant had been holding, racing up and through the top pulley; that the girder fell suddenly to the ground and struck the plaintiff on his left leg above the knee and that as a result it was necessary to amputate the plaintiff's leg. The petition also alleges 'That the operation and control of said derrick and gin pole at the time said girder fell, was wholly and exclusively within the control of defendant, * * *. That there was no mechanical defect or failure of any kind or character. * * * That the rope * * * did not break, did not come untied. * * * That while said girder was suspended in a stationary position, the ratio of the block and tackle was such that one man could, by holding on to said rope at the time and place the defendant and his servant * * * were holding same, have held said girder stationary.' The petition continues by alleging that the plaintiff has exercised diligence in determining what the defendant and the co-servant did or failed to do but has been unable to ascertain the same and 'That said defendant, personally, and by his [said] employee, carelessly, negligently, recklessly, and incompetently turned loose of the rope holding said girder so that it fell upon plaintiff, injuring him as above set forth.' The petition also alleges specifically negligence on the part of the defendant as follows: (1) By hiring the co-servant when the defendant knew or should have known that he was incompetent; (2) by retaining the servant on the job after having had full knowledge of his in competency; (3) by the defendant personally undertaking to assist the plaintiff when the defendant had no knowledge or training in construction work, and was incompetent; (4) by reason of the defendant and the co-servant having turned loose of the rope and thereby causing the girder to fall; and (5) by reason of the defendant's failure to provide competent co-servants. Such acts of negligence on the part of the defendant are alleged to be the direct and proximate cause of the plaintiff's injuries. The petition concludes by alleging items of damage aggregating $15,864.29.

The amended answer alleges a different factual story. The demurrer of the plaintiff was directed only to the second paragraph thereof and consequently, only such paragraph need be summarized. The defendant alleges therein that the plaintiff is a skilled and experienced carpenter and has been for many years; that the defendant desired to construct a large dairy barn and employed and placed plaintiff in complete charge of the construction thereof and authorized the plaintiff to employ the labor and purchase the materials necessary for the construction of the barn; that it was orally agreed between the plaintiff and the defendant that the plaintiff should act as foreman, superintendent and general supervisor and also perform services as a carpenter that the plaintiff agreed to and did furnish all the tools necessary for the use of himself and others; that it was almost impossible to employ skilled labor and that the plaintiff requested the defendant to furnish the named co-servant McDowell and that thereafter such servant worked entirely under the supervision and direction of the plaintiff; that after McDowell was employed he was 'laid off' and paid in full by the defendant at the direction of the plaintiff; that later the plaintiff requested that McDowell be re-employed and again worked under the direction of the plaintiff until the plaintiff was injured; that the plaintiff had full knowledge of the physical impairment of McDowell. The answer further alleges that the gin pole and the derrick referred to in the petition were constructed by the plaintiff; that the block and tackle and rope used thereon were the property of the plaintiff; that such instrumentalities had been used during the construction of the barn and in the placing of many girders in place previous to the time described in the petition; that the defendant never went to work as a laborer in any capacity; that the defendant merely stopped at the construction work on the afternoon of the day on which the accident occurred and that the plaintiff requested the defendant to assist McDowell in pulling on the rope, thereby raising the girder; that the defendant took hold of the rope as requested by the plaintiff and continued to hold on to the same as so requested and that while defendant and McDowell were holding the rope the plaintiff walked under the girder and when the plaintiff had reached a point under the same the knot, which the plaintiff had tied in the rope on the block and tackle, came untied and the girder dropped, causing the injury to his leg. The answer further alleges that plaintiff did not use and operate the derrick and gin pole in a workmanlike manner; that the plaintiff was careless and negligent in walking under the girder; that he could have avoided the injury to himself by walking around the same. The amended answer further re-asserts that the plaintiff is not entitled to recover for the following reasons: (1) That plaintiff was the owner of the block and tackle and rope and was the one who had constructed the derrick and gin pole; that plaintiff had tied the knot which came untied and that plaintiff, in accepting the employment and the supervision of the construction of the barn, assumed the normal hazards and risks incident to the construction of the barn and that such risks were fully known and recognized, including the risk incident to the falling of the girder; (2) that the injury was not caused through any negligence of the defendant but was due to an accident and a condition over which defenda...