Hill v. Leichliter

• Decision Date: 12 November 1949
• Docket Number: No. 37615,37615
• Citation: 168 Kan. 85,211 P.2d 433
• Parties: HILL et al. v. LEICHLITER.
• Court: Kansas Supreme Court

Page 433

211 P.2d 433

168 Kan. 85

HILL et al. v. LEICHLITER.

No. 37615.

Supreme Court of Kansas.

Nov. 12, 1949.

Syllabus of the Court.

1. In a damage action where answers made by the jury to special questions submitted by the court do not conflict and are not inconsistent with the general verdict, the verdict must stand.

2. Plaintiffs' petition alleges a $5,971.87 loss for destruction of standing wheat by fire started when defendant drove his automobile through plaintiffs' partially harvested wheat field. Plaintiffs also claim $210 for loss of wheat stubble. The answer admits the loss of standing wheat valued at $5,971.87, denies all other allegations, alleges that plaintiffs had fire insurance coverage on their field of wheat and were compensated in full for their loss by the insurance company, and that the plaintiffs are therefore not the real parties in interest. Plaintiffs' reply admits the allegations of the answer with reference to plaintiffs' insurance and with reference to plaintiffs having been compensated in full for their loss. No evidence was offered as to any loss of stubble, nor as to any damage over and above $5,971.87. The jury was instructed and, while the instructions were not included in the abstract, it will be assumed an instruction was given as to the necessity of plaintiffs being the real parties in interest as provided in section 60-401, G.S.1935, since that was an issue raised by the pleadings. No special finding was made as to this issue and the general verdict was for defendant. Held: (a) The pleadings show that plaintiffs are not the real parties in interest; and (b) Any factual issue, if it be contended there was one, as to plaintiffs being the real parties in interest was resolved in favor of defendant by the general verdict.

3. In an action such as described in Syllabus p2, an allegation in the answer that plaintiffs' wheat was insured against loss by fire and that plaintiffs had been fully compensated by the insurance company and therefore were not the real parties in interest to an action to recover for such wheat loss, is a proper defense to be raised by the answer. plaintiffs' motion to strike such allegation from the answer was properly overruled.

4. In the action referred to is Syllabus p2, plaintiffs' reply alleges that at the time of the fire which destroyed the wheat, defendant had an automobile liability policy of insurance whereby the company agreed to indemnify him for any liability to third persons arising from the negligent operation of defendant's automobile. Held: Such allegation does not constitute a defense to new matter alleged in the answer; is not a proper pleading under the rule stated in Powell v. Kansas Yellow Cab Co., 156 Kan. 150, 131 P.2d 686; and defendant's motion to strike such allegation from the reply was properly sustained.

Marion Beatty, of Topeka, argued the cause, and Harry K. Allen, and L. M. Ascough, also of Topeka, and Lloyd H. Vieux, of Atwood, on the briefs for the appellants.

Robert J. Lewis, of Atwood, argued the cause, and C. A. P. Falconer, also of Atwood, on the briefs for the appellee.

ARN, Justice.

This is a damage action to recover for loss of a standing wheat crop which was destroyed by fire. The jury's verdict was for defendant and plaintiffs appeal. The facts may be sufficiently noted from the following resume of the pleadings.

In the second amended petition, plaintiffs allege they are residents of Rawlins County, Kansas, and are co-owners of a wheat crop located on a tract of land in that county; that the defendant is a resident of the same county and engaged in the business of selling and repairing combines; that on July 10, 1946, plaintiffs were engaged in harvesting their wheat crop with a combine harvester-thresher, when the defendant at the request of the plaintiffs came to the wheat field for the purpose of inspecting and repairing the combine which defendant had sold to the plaintiffs; that on his arrival, defendant drove his automobile into the field through the dry and highly inflammable wheat stubble; that after driving about twenty rods into the wheat field, fire or sparks from the automobile came in contact with straw which had accumulated on the under part of defendant's vehicle and the stubble burst into flame which spread into the field and destroyed and burned 73 1/2 acres of unharvested wheat. The petition further alleges that the wheat stubble, which had value as a fertilizer for the next year's crop, was also destroyed; that the proximate cause of plaintiffs' loss was the careless and negligent manner in which defendant operated his automobile in driving it through the straw and stubble when it was unnecessary for him to do so and when he should have known that it was unsafe to do so, and when he knew or should have known that there was danger of igniting the inflammable stubble. It was alleged that plaintiffs' damage amounted to, and plaintiffs ask recovery of $5,971.87 for the wheat destroyed, and $210 for destruction of the wheat stubble.

The defendant's answer contained a general denial and admitted plaintiffs' ownership of the wheat crop; alleged that it was being harvested on July 10 with a combine sold to the plaintiffs by defendant; that defendant was in the act of driving his car through the stubble for the purpose of taking his tools and equipment to the location of the combine for the purpose of making an inspection at plaintiffs' request; that after he had driven into the wheat stubble, a fire was discovered and the unharvested wheat was burned so that the net value of the wheat destroyed was $5,971.87. The answer continued as follows:

'5. Defendant alleges that at the time of said fire of July 10th, 1946, the plaintiffs had fire insurance on said field of wheat, issued to them by The Home Insurance Company of New York on June 15th, 1946, insuring said field of wheat against destruction by fire in any amount up to $10,000.00 (Ten Thousand Dollars), and that said insurance was written for plaintiffs by E. C. Mellick of Atwood, Kansas, who was at said time, the agent of The Home Insurance Company of New York, for the writing of fire insurance on fields of wheat and other property and that the said burning of said wheat on July 10th, 1946, was reported by the plaintiffs to said E. C. Mellick, agent of The Home Insurance Company of New York, as alleged, and that said company or or about August 12th, 1946, paid the plaintiffs the said sum of $5,971.87 in full payment of all damages claimed by plaintiffs to have been sustained by them because of said fire.

'6. Defendant specifically denies that the plaintiffs sustained any damages or loss over and above said sum of $5,971.87, so paid to them by said Insurance Company, as hereinbefore set out. Defendant further specially denies each and every allegation and all matter contained in Paragraph 4 of Plaintiffs' second amended petition.

'7. Said defendant, Norman Leichliter, therefore alleges that the plaintiffs have not sustained the damages, or any of the damages alleged by them, because of said fire, and that said insured wheat which was burned did not have any value exceeding the amount of the insurance paid to plaintiffs as hereinbefore alleged, and that plaintiffs have no legal right to maintain this action because they are not the real parties in interest.'

Plaintiffs filed a motion to strike the above quoted paragraphs 5, 6 and 7 of the answer for the reason that such paragraphs did not constitute a defense to the plaintiffs' second amended petition, and this motion was by the trial court overruled.

Plaintiffs' reply consisted of a general denial of new matter contained in the answer and continued with the following allegations:

1. 'Plaintiff admits that at the time of the fire, on July 10, 1946, the plaintiff was insured, as alleged in paragraph 5 of defendant's answer, and that plaintiff has received full compensation for the amount of his loss, as alleged in paragraph 6 of said answer; plaintiff states that this action is brought by plaintiff for the use and benefit of the Home Insurance Company of New York against the defendant wrongdoer, who caused said loss.'

2. 'Further replying to defendant's answer, plaintiff states that at the time of the fire, on July 10, 1946, above referred to, the defendant had an automobile liability policy of insurance in the Hardware Mutual Casualty Company, of Stevens Point, Wisconsin, and that under the terms and provisions of said policy, said insurance company agreed and was bound to indemnify defendant from any liability to third persons, arising from the negligent operation of defendant's automobile, and that said Hardware Mutual Casualty Company, under the terms of their policy, would be obligated to pay any judgment that plaintiff might recover against defendant in this action.'

A motion to strike the second and last paragraph of plaintiffs' reply was filed by the defendant for the reason that it was irrelevant, immaterial and incompetent, and did not constitute a denial or admission of any of the allegations of defendant's answer. This motion was sustained and said paragraph two was stricken from plaintiffs' reply.

Upon these pleadings a trial was had. The record before us indicates that the jury was fully instructed, but the court's instructions are not abstracted. The jury's verdict rendered on November 10, 1948, was for the defendant, and nine special questions submitted by the court were answered thus:

1. Did defendant's automobile set fire to and destroy plaintiffs' wheat? A. Yes.

2. Did the defendant know of the danger of a motor vehicle, such as he was driving, setting fire to plaintiffs' stubble when he drove into it? A. Yes.

3. Did the defendant know or should have known that there was likelihood that a fire would result from his driving his automobile into the stubble field of plaintiffs on a hot dry day? A. No.

4. Did the defendant's lack of due care in driving...