Henderson v. National Mut. Cas. Co.

• Decision Date: 06 December 1947
• Docket Number: 36952.
• Citation: 164 Kan. 109,187 P.2d 508
• Parties: HENDERSON et ux. v. NATIONAL MUTUAL CASUALTY CO. et al.
• Court: Kansas Supreme Court

187 P.2d 508

164 Kan. 109

HENDERSON et ux. v. NATIONAL MUTUAL CASUALTY CO. et al.

No. 36952.

Supreme Court of Kansas

December 6, 1947

Rehearing Denied Feb. 6, 1948.

Appeal from District Court, Butler County, Division No. 2; W. N Calkins, Judge.

Action by Ralph Henderson and Fae Henderson against National Mutual Casualty Company and Lee N. Guthrie, doing business as Guthrie Truck Line, for death of plaintiffs' son, Norval Henderson, a single man, resulting from an automobile collision at night between automobile in which plaintiffs' son was a passenger and an object parked on the highway. From an order overruling demurrer, defendants appeal.

Order affirmed.

The statute requiring a public liability policy as a condition precedent to the granting of a license or permit for operation of a contract motor carrier of passengers or property would be read into policy issued pursuant to requirements of statute so as to render insurer liable for injuries resulting from alleged negligence regardless whether spudder trailer the carrier was charged with negligently transporting over state highway was a "trailer" within statute requiring a trailer on highway to be registered. Gen.St.1935, 66-1,128.

Syllabus by the Court.

1. The civil code requires that facts constituting a cause of action must be stated in ordinary and concise language, and without repetition, G. S. 1935, 60-704 (Second), and that where the allegations of a petition are so indefinite and uncertain that the nature of the charge is not apparent, the court or judge may require them to be made definite and certain. G. S 1935, 60-741.

2. Where material parts of a petition are properly attacked by motion to make definite and certain and the motion is successfully resisted the petition, as to such parts, is thereafter subject to critical analysis and must be strictly construed against plaintiff when subsequently tested by general demurrer.

3. A petition which fairly apprises defendant what plaintiff's claim is to be is not properly subject to a motion to make definite and certain and where such motion is properly resisted and overruled the rule of strict construction on demurrer does not apply.

4. A petition to recover damages for the wrongful death of a passenger, or guest, in an automobile, is demurrable if it discloses on its face the passenger, or guest, was guilty of contributory negligence as a matter of law.

5. A passenger, or guest, is required to exercise reasonable care and diligence for his own safety in keeping with all the facts and circumstances in the particular case.

6. The presumption is that a deceased person exercised reasonable diligence for his own safety.

7. Where the appeal before us involves only an action for damages for the alleged wrongful death of a passenger, guest or invitee, the question of the driver's contributory negligence is not before us and nothing in the opinion is designed or intended to determine his rights or duties.

8. The general rule which requires the driver of an automobile to articulate speed with ability to see, stop or turn aside does not bar recovery, as a matter of law, for the death of a passenger, guest, or invitee, who may have been only three seconds of travel, at the rate of thirty-five to forty miles per hour, removed from an object parked on the highway when first blinded by lights of an approaching car.

9. The provisions of G. S. 1935, 66-1,128 (and amendments thereto transferring the duties of the public service commission to the state corporation commission, G. S. 1935, 74-601c and 74-602) requiring a public liability policy as a condition precedent to the granting of a license or permit for the operation of a contract motor carrier of passengers or property are read into and made a part of the policy issued by the insurer.

10. The third amended petition in an action to recover damages for the alleged wrongful death of a passenger, guest or invitee examined and held: (a) Defendants were not entitled to have that petition strictly construed against plaintiffs when it was tested by their general demurrer; and (b) the joint demurrer of the principal defendant and his insurance carrier was properly overruled.

J. B. McKay, of El Dorado (Clem H. Silvers, of El Dorado, on the brief), for appellants.

Homer v. Gooing, of Wichita (Howard T. Fleeson, Wayne Coulson, Paul R. Kitch, Manford Holly, and Dale M. Stucky, all of Wichita, on the brief), for appellees.

WEDELL Justice.

This was an action by parents to recover damages for the wrongful death of their son, Norval Henderson, a single man, resulting from an automobile collision at night between the car in which he was a passenger and an object parked on the highway.

No administrator had been appointed for the decedent's estate. Plaintiffs were alleged to be the parents of the deceased and his next of kin.

Defendants were Lee N. Guthrie, doing business as the Guthrie Truck Line, and National Mutual Casualty Company, a corporation, his insurance carrier.

Defendants appeal from an order overruling their general demurrer to plaintiffs' third amended petition. We shall refer to the appellees as plaintiffs and to the appellants as defendants when referred to collectively and as National and Guthrie, respectively, when referred to separately.

In order for National to be liable the petition must, of course, state a cause of action against the principal, Guthrie. Only if it does so need we consider the sufficiency of the petition against National. Does it state a cause of action against Guthrie?

Plaintiffs' son, for whose death recovery of damages is sought, was a passenger in a car driven by a third party. A collision occurred at night between that car and an object left situated on a public highway by Guthrie in the operation of his truck. The petition denominated the object as a 'spudder trailer'. Defendants contend the third amended petition discloses on its face the deceased passenger was guilty of contributory negligence as a matter of law.

The first three petitions were challenged by motions to strike and to make definite and certain. Upon careful examination of those petitions and rulings on the various motions leveled against them we have concluded that in order to determine the correctness of the ruling on the general demurrer to the third amended petition it is not necessary to set forth the various petitions, the motions and the rulings thereon. Many, if not most portions, of the motions were sustained. We think plaintiffs reasonably complied with the trial court's rulings in framing the subsequent petitions.

Ordinarily a party is not permitted to file successive motions seeking the same relief after the first motion has been overruled but must include all such requested relief in his first motion. A second motion under such circumstances ordinarily may be filed only after first obtaining leave of court. Adams v. Lockwood, Englehart & Co., 30 Kan. 373, 2 P. 626. Plaintiffs state such leave was not obtained and argue the subsequent motions should not have been permitted. We fail to find plaintiffs presented that contention to the trial court. Moreover, in view of all the petitions, motions and rulings thereon it is not entirely clear the rule now stressed by plaintiffs would have been properly invoked against defendants in this case. At any rate we prefer to determine this case on more fundamental issues.

Defendants concede contributory negligence is a defense which ordinarily must be pleaded but contend a petition is demurrable when it discloses on its face the person in whose behalf recovery is sought was guilty of contributory negligence, citing Horton v. Atchison, T. & S. F. Ry. Co., 161 Kan. 403, 168 P.2d 928; Atherton v. Goodwin, 163 Kan. 22, 180 P.2d 296; and other cases. That is a correct statement of the rule.

The question is, did the last petition disclose such contributory negligence? Defendants contend it did and in aid of such construction of the petition they apply the recognized rule that where material parts of a petition are properly attacked by a motion to make them definite and certain and the motion is successfully resisted the petition, as to such parts, is thereafter subject to critical analysis and must be strictly construed against a plaintiff when subsequently tested by a general demurrer, citing Mead v. City of Coffeyville, 152 Kan. 799, 107 P.2d 711; Frazier v. Cities Service Oil Co., 159 Kan. 655, 157 P.2d 822; and other cases. The foregoing rule is bottomed on our civil code. It requires a petition to state the facts constituting the cause of action in ordinary and concise language, without repetition. G.S.1935, 60-704 (Second). In order to insure such a pleading the code further provides that where the allegations of a petition are so indefinite and uncertain that the nature of the charge or defense is not apparent, the court or judge may require them to be made definite and certain. G.S.1935, 60-741. In this state, however, the rule of strict construction on demurrer does not apply if the petition when challenged by motion to make definite and certain fairly apprises the adversary what the claim is to be. Board of Com'rs of Republic County v. United States Fidelity & Guaranty Co., 96 Kan. 255, 150 P. 590; McCroskey v. Proctor & Gamble Manufacturing Co., 112 Kan. 434, 211 P. 133.

The ultimate question, therefore, is whether material portions of petitions challenged by motions to make definite and certain fairly apprised defendants of the nature of plaintiffs' claim. If they did the motions were properly overruled and plaintiffs are entitled to have the third amended petition liberally construed in their favor. On the other hand if such portions of the petitions did not fairly apprise ...