Holle v. Lake

• Decision Date: 23 January 1965
• Docket Number: No. 43883,43883
• Citation: 398 P.2d 300,194 Kan. 200
• Parties: William HOLLE, Jr., Appellee, v. William M. LAKE, (Defendant), and Charles E. Lake, Jr., Appellant.
• Court: Kansas Supreme Court

Page 300

398 P.2d 300

194 Kan. 200

William HOLLE, Jr., Appellee, v. William M. LAKE, (Defendant) and Charles E. Lake, Jr., Appellant.

No. 43883.

Supreme Court of Kansas.

Jan. 23, 1965.

Rehearing Denied March 15, 1965.

Syllabus by the Court

1. The provisions of G.S.1949, 60-408 authorize service of process on minors the same as upon other persons defendant in an action, where there is no natural or legally appointed guardian for such minor upon whom service may be made within the state of Kansas. If service of process is upon the minor only, the record need not disclose why the service is valid. If such service of process is challenged, either in the trial court or in the Supreme Court on appeal, it becomes the burden of the party attacking the service to prove its invalidity by a sufficient record on appeal.

2. Contributory negligence is not excused under the so-called rescue doctrine where an effort is made to protect property. The law treats the voluntary risking of one's own life or serious injury to himself as negligence per se if the purpose is merely to protect property.

Charles L. Davis, Jr., Topeka, argued the cause, Robert F. Galloway, Edward F. Wiegers and Keith W. Sprouse, Marysville, and Byron M. Gray and Maurice D. Freidberg, Topeka, with him on the brief, for appellant.

Floyd E. Gehrt, Topeka, argued the cause, D. Edward Davis and Robert L. Roberts, Topeka, with him on the brief, for appellee.

SCHROEDER, Justice.

This is a damage action for personal injuries sustained by the plaintiff while attempting to stop a moving truck which had been parked on a highway by one of the defendants in the action. The case was tried to a jury which returned a verdict for the plaintiff in the sum of $4,414.27. Appeal has been duly perfected from a judgment entered thereon, and numerous errors have been assigned.

Only those questions material to a disposition of the appeal will be considered. They are: First, whether Charles E. Lake, Jr., a minor defendant, was properly served with summons; and second, whether the trial court properly instructed the jury concerning the 'rescue doctrine.'

Charles E. Lake, Jr. (defendant-appellant) at all times material to this litigation was a minor. Service of summons was made upon Charles E. Lake, Jr. personally, and upon William M. Lake as his guardian. Charles had lived with his grandfather, William M. Lake (also made a defendant in the action and served with summons as such) for a period of ten years during which the grandfather assumed parental control and stood in the relationship of 'loco parentis' to Charles. The grandfather had never adopted Charles and there was no showing that he had ever been appointed his legal guardian. Edward F. Weigers, the attorney defending Charles, was appointed guardian ad litem by the trial court after Charles was served with summons.

Insofar as the record discloses Charles had no parents in the state of Kansas upon whom service of summons could be made. The record is silent as to whereabouts or existence of his natural parents.

At the time of the accident in question both Charles and William Holle, Jr. (plaintiff-appellee) were working for William M. Lake, who was named a co-defendant in the original action but released by the jury which absolved him of any negligence. Charles was driving his grandfather's truck, loaded with turkeys, when a turkey escaped from the truck. By reason thereof the truck was stopped and parked on a small incline. Both Charles and William Holle, Jr. got out of the truck to catch the turkey, when the truck commenced moving down-hill.

Holle then jumped on the running board of the truck to keep it from running into an embankment on the side of the highway. The truck was left in gear and as it rolled the motor 'turned over' causing the truck to jerk, throwing Holle under the rear wheel of the truck, thus resulting in his injuries.

The evidence disclosed there was no person in sight that could be injured by the runaway truck, and that had Holle just let the truck go it would have hit the embankment in the ditch and stopped. The direction in which the truck was moving was away from Charles and Holle.

At no time in the trial court did the appellant Charles challenge the jurisdiction of the trial court on the ground that the service of process upon him as a minor was defective. This question is being raised for the first time on appeal.

It must be conceded that a jurisdictional question of this nature may be raised for the first time on appeal in the Supreme Court.

The point presently under consideration is controlled by Dougan, Administratrix v. McGrew, 187 Kan. 410, 357 P.2d 319, 86 A.L.R.2d 1174. There the provisions of G.S.1949, 60-408, which authorize service of process on minors, were before the court for construction. Upon the factual situation it was impossible to obtain service of process upon the parents of a minor defendant within the state of Kansas because his parents resided in the state of Missouri. Furthermore, no guardian had been appointed for the minor in the state of Kansas. The court held service of process upon the minor valid, saying:

'The section then took its present form in R.S.1923, 60-408. This one hundred two year history indicates a legislative intent to equate service upon a minor and his natural guardian in all respects with that upon an adult. See, Walkenhorst v. Lewis, 24 Kan. 420; and Land & Lot Co. v. Cole, 52 Kan. 790, 35 P. 827. It must be emphasized, and we repeat, 60-408, supra, in its present form permits service upon a minor who has no living parent or legally appointed guardian, his legal rights being fully protected by the appointment of a guardian ad litem.

* * *

* * *

'Having given careful consideration to the decisions heretofore cited and the legislative history of 60-408, supra, as reflected upon the statutory enactment as it presently appears, we hold the provision, 'If there be a natural or legally appointed guardian for such minor, * * * service shall also be made in the same manner upon such guardian,' implies that there be such guardian upon whom service of process can be obtained 'in the same manner' as service upon the minor. In other words, this being an action in personam in a Kansas court, the provisions of 60-408, supra, do not require service of process upon the natural guardian, a nonresident, who cannot be served in Kansas, and who cannot be served with valid process in the state of his residence. Under these circumstances, the statute contemplates that personal service of summons upon the minor is sufficient to confer jurisdiction upon the trial court over the minor defendant in the action. * * *' (187 Kan. pp. 416, 417, 357 P.2d pp. 324, 325.)

Assuming that service of process upon William M. Lake, the grandfather, as the 'natural guardian' of Charles was void (See, Paronto v. Armstrong, 161 Kan. 720, 171 P.2d 299), the trial court nevertheless did appoint a guardian ad litem after service of process upon the minor. It thereby fully complied with the provisions of 60-408, supra, and acquired jurisdiction over the minor defendant. In such situation the minor's rights are fully protected by the appointment of a guardian ad litem.

Apparently the appellant takes the position that the record must affirmatively show why service of process was not made upon a natural guardian of the minor, before service of process upon the minor is...