Hosterman v. Kansas Turnpike Authority

• Decision Date: 08 November 1958
• Docket Number: No. 41048,41048
• Citation: 183 Kan. 590,331 P.2d 323
• Parties: Vernie HOSTERMAN, Appellant, v. The KANSAS TURNPIKE AUTHORITY, a body politic and corporate, Appellee.
• Court: Kansas Supreme Court

Page 323

331 P.2d 323

183 Kan. 590

Vernie HOSTERMAN, Appellant, v. The KANSAS TURNPIKE AUTHORITY, a body politic and corporate, Appellee.

No. 41048.

Supreme Court of Kansas.

Nov. 8, 1958.

Syllabus by the Court

1. The Kansas Turnpike Authority (G.S.1955 Supp. 68-2001 et seq.) is an arm or agency of the state created by the legislature to perform an essential governmental function (G.S.1955 Supp. 68-2003). While, under G.S.1955 Supp. 68-2004(d), it is authority to sue and to be sued in its own name, it does not follow, however, that the state has waived its immunity from tort liability, and its immunity is waived only to the extent of the special statutory right of action created by G.S.1955 Supp. 68-2015, which provides that all private property damaged or destroyed in carrying out the powers granted by the act shall be restored or repaired and placed in its original condition as nearly as practicable or adequate compensation made therefor out of funds provided under the authority of the act.

2. In an action by an adjacent landowner against the Kansas Turnpike Authority to recover damages alleged to have resulted from the operation by defendant of a hot-asphalt plant which processed paving material used in the construction of the turnpike, the court struck from the petition certain items and allegations in support thereof pertaining to injuries of a personal nature, such as pain and suffering, permanent injury to health, contamination of the air and loss of the comforts of living. Plaintiff appealed from that ruling. Held, as more fully set forth in the opinion--no error.

I. T. Richardson, Emporia, on the brief for appellant.

James W. Putnam, Emporia, and Robert Cowger and Bruce Works, Topeka, and Richard Mankin, Emporia, on the brief, for appellee.

PRICE, Justice.

The sole question presented by this appeal is whether the Kansas Turnpike Authority, hereafter referred to as defendant, is liable in damages for injuries of a personal nature alleged to have been sustained as a result of its operations in the construction of the turnpike.

The trial court answered the question in the negative, and plaintiff has appealed.

The background of the case, as alleged in the petition, is this:

Plaintiff, Vernie Hosterman, is a farmer living in Lyon County. In the summer of 1956 defendant maintained and operated a hot-asphalt plant for the production of paving material used in the construction of the turnpike. The plant was located about one-half mile south of plaintiff's farm and about three-fourths mile from his house, barns, corrals and equipment buildings. In the processing of the hot asphalt the plant gave off large 'clouds' of refuse, resulting in a 'fall-out' of powdery silt which covered and permeated everything with which it came in contact. The refuse contained foul-smelling and noxious gases, and as it was carried by the wind over plaintiff's property made living conditions generally unbearable, resulting in the following items of damaged to plaintiff:

'1. Pain and Suffering and inescapable contacts which the fall-out from said Refuse Clouds

2. Permanent injury to plaintiff's health $10,000.00

3. Food Contamination 500.00

4. Contamination of all the air plaintiff had to breathe 5,000.00

5. Loss of all the comforts of living in his farm home and the farm environment 10,000.00

6. Contamination of his water supply 5,000.00'

Defendant filed a motion to strike items 1, 2, 4 and 5, and allegations pertaining thereto, its theory being that such items covered damages for injury to the person for which, under the law, it was not liable.

This motion was sustained, thus leaving in the petition only items 3 and 6 pertaining to food and water-supply contamination. It is from this ruling that plaintiff appealed.

In addition to number of cases arising out of condemnation awards involving defendant, three cases have reached this court which sought recovery from defendant for damage to private property.

In Pennington v. Kansas Turnpike Authority, 180 Kan. 638, 305 P.2d 849, 850, the action sought 'to recover damages as a result of construction activities on the Kansas Turnpike.' Defendant's demurrer to the petition, on the ground (2) it did not state facts sufficient to constitute a cause of action, was overruled. In affirming that order we called attention to certain statutes, hereafter mentioned, as being authority for maintaining the action.

In Anderson Cattle Co. v. Kansas Turnpike Authority, 180 Kan. 749, 308 P.2d 172, the action sought recovery of damages for injury to plaintiff's cattle which were 'molested, annoyed and excited' by the presence of defendant's employees and the noise and disturbance created by construction activities. One ground of defendant's demurrer to the petition was that it did not state facts sufficient to constitute a cause of action, and it was contended that defendant was clothed with immunity in such an action because it was created a body politic and corporate and constitutes a public instrumentality. The demurrer was overruled, and this court affirmed. The reasoning of our decision will be discussed later in this opinion.

Wilson v. Kansas Turnpike Authority, 181 Kan. 1025, 317 P.2d 843, was an action by a landowner...