Hibbs v. City of Wichita, 39414
| Decision Date | 12 June 1954 |
| Docket Number | No. 39414,39414 |
| Citation | 176 Kan. 529,271 P.2d 791 |
| Parties | HIBBS v. CITY OF WICHITA. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. Under the provisions of G.S.1949, 12-105, the filing of a written statement with the city clerk within the time therein specified, giving the time and place of the happening and the circumstances relating thereto, is a condition precedent to the maintenance of an action against the City of Wichita for damages on account of injury to person or property sustained as a consequence of a mob which must be alleged in order to state a cause of action for injuries so received.
2. A petition stating that such a statement was presented to the governing body of that city does not meet the requirements of 12-105, supra, and is therefore subject to demurrer on the ground it fails to state a cause of action.
Douglas E. Shay, Wichita, argued the cause, Fred W. Aley, Theodore H. Hill, Wichita, were with him on the briefs for appellant.
William C. Norton, Wichita, argued the cause, Harry W. Saums, Wichita, was with him on the briefs for appellee.
This is an appeal from an order overruling a demurrer to an amended petition.
Plaintiff commenced the action by the filing of a petition in which he sought to recover damages from the defendant city under provisions of G.S.1949, 12-201, which read:
'All incorporated cities and towns shall be liable for all damages that may accrue in consequence of the action of mobs within their corporate limits, whether such damage shall be the destruction of property or injury to life or limb: Provided, however, That the number of persons that shall constitute a mob under this act shall be five or more.'
From statements made in the abstract, and the briefs of the respective parties, we are advised that a demurrer to the petition was sustained on grounds of misjoinder of cause of action and that thereafter plaintiff filed the involved amended petition.
For all purpose essential to the disposition of the appeal it may be stated that in such pleading the plaintiff alleges in substance that his home in the City of Wichita was invaded on November 15, 1952, without legal authority by a mob, consisting of a group of more than five police officers of that city; that during the course of such invasion he was attacked and his property destroyed; that subsequently, and as a part of their attack, such officers forcibly dragged him from his home and, after placing him in a patrol wagon, drove him to the police department of the city in a careless and violent manner; that thereafter such persons forced him into an elevator in such police department, took him to the city jail and there confined him in a cell known as the 'Hole'; that while they were attacking him such persons struck and assaulted his wife, Lola Hibbs, placed her in a city patrol car and took her to the city jail, where she was confined against her will, which acts caused him mental anguish and embarrassment; and that as a result of all the related acts and conduct of such group of officers he sustained injuries to his person and property, describing them at length, for which he was entitled to recover damages under the mob statute. G.S.1949, 12-201.
After making the preceding factual statements the amended petition alleges specifically that on February 12, 1953, pursuant to G.S.1949, 12-105, plaintiff presented to the governing body of the City of Wichita a verified claim for damages. It then asserts that such claim was presented within three months from the date of the alleged assault, that more than thirty days has expired since the date of its presentation, and prays for the recovery of judgment in the amount stated.
Defendant attacked the amended petition by a motion to strike certain allegations and to make others more definite and certain. It can be stated this motion, containing several grounds which we regard of little importance, and one of more consequence requesting that plaintiff be required to attach a copy of the claim alleged to have been filed with the City of Wichita to his amended petition, was overruled in its entirety and that thereupon the city demurred to such amended pleading on grounds (1) it improperly joined several causes of action and (2) failed to state facts sufficient to constitute a cause of action. When this demurrer was overruled the city perfected the instant appeal where the parties now concede the sole question involved is whether the trial court's action in that regard was erroneous.
There is little if any merit to appellant's arguments respecting error in the overruling of the first ground of its demurrer. It is clear from the allegations of the challenged pleading that the factual averments respecting alleged conduct of the police officers towards appellee's wife were made on the theory they entitled appellee to recover damages for his own mental anguish and embarrassment resulting from that alleged conduct and not for the purpose, as appellant contends, of recovering for personal injuries sustained by his wife. It is equally clear that allegations respecting assault, false arrest, false imprisonment, and malicious prosecution were included in such pleading as innuendo for the purpose of establishing one cause of action under the mob statute. Under such circumstances we know of and are cited to no authorities holding that several causes of action were improperly joined therein.
The first contention advanced by appellant as requiring a conclusion the amended petition failed to state a cause of action presents a far more perplexing and serious question. It is founded upon another section of our statute, G.S.1949, 12-105, relating to the filing claims for damages, against the divers cities of the state, which reads:
Boiled down the gist of all arguments advanced by appellant in support of its first contention is (1) that the statute just mentioned establishes conditions precedent to the maintenance of an action against the City of Wichita, or for that matter any city of the state; (2) that in the absence of affirmative allegations disclosing compliance with such conditions precedent a petition against the city on account of injury to person or property fails to state a cause of action; (3) that the filing of the written statement with the city clerk prior to the bringing of the suit, as required by its terms, is a condition precedent to the maintenance of such an action; and (4) that since the amended petition fails to contain allegations warranting a construction such a statement was filed with the clerk of the city prior to the bringing of the action it fails to state a cause of action.
Resort to the statute, which we pause to note has been applicable to cities of the first class since 1903, L.1903, Ch. 122, § 7, to cities of the second class since 1919, L.1919, Ch. 143, § 1, and cities of the third class since the 1923 revision of our general statutes, R.S.1923, 12-105, is all that is required to establish that the legislature of this state has seen fit to fix the terms, conditions and circumstances under which it is possible to maintain a suit against a municipality for injury to person or property for there in clear and unequivocal language appears the statement that 'No action shall be maintained by any person or corporation against any city' on that account unless upon compliance with the other provisions therein set forth. Thus it appears decisions of this court dealing with such statute are entitled to weight as controlling precedents regardless of the type of city involved.
This court has always recognized the power of the legislature to enact a statute establishing conditions precedent to the maintenance of an action against a city for damages to person or property and long ago, in construing 12-105, supra, determined that its provisions established conditions precedent to the bringing of such an action which must be pleaded in order to withstand a demurrer based on the ground the petition failed to state a cause of action. See Dechant v. City of Hays, 112 Kan. 729, 212 P. 682, where this court held:
'Chapter 143, Laws 1919, provides:
'That no action shall be maintained against any city of the second class, by any person or corporation...
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