Hubert v. Board of Public Utilities of Kansas City

• Decision Date: 07 December 1946
• Docket Number: 36671.
• Citation: 162 Kan. 205,174 P.2d 1017
• Parties: HUBERT v. BOARD OF PUBLIC UTILITIES OF KANSAS CITY et al.
• Court: Kansas Supreme Court

174 P.2d 1017

162 Kan. 205

HUBERT v. BOARD OF PUBLIC UTILITIES OF KANSAS CITY et al.

No. 36671.

Supreme Court of Kansas

December 7, 1946

Appeal from District Court, Wyandotte County, Division 4; Russell C Hardy, Judge; and from Division 3; Harvey J. Emerson, Judge.

Action by William M. Hubert against Board of Public Utilities of Kansas City, Kan., and another, for injuries sustained by plaintiff as result of explosion of an electrical exhauster caused by alleged negligence of named defendant. From rulings sustaining demurrers of separate defendants to the amended petition, the plaintiff appeals.

Syllabus by the Court.

1. When an action is brought to recover damages for personal injuries against the Board of Public Utilities of Kansas City only as a separate, independent entity, the City of Kansas City is a necessary and indispensable party thereto.

2. Whenever an indispensable party to an action is no longer a party to the litigation, the effect is the same as if such party never had been a party thereto and results in the abatement of the action.

C. D Bruce, of Kansas City, for the appellant.

William Drennan, of Kansas City, (Charles W. Lowder and Otto Ziegelmeyer, both of Kansas City, on the brief), for appellee, Board of Public Utilities of Kansas City.

BURCH Justice.

The appeal is from rulings sustaining demurrers of separate defendants to an amended petition filed by the appellant in which it is alleged that he was severely injured by the explosion of an electrical exhauster caused by the negligence of the Board of Public Utilities of Kansas City, Kansas. The City was not a party to the action as originally brought but later was named as a necessary party defendant. Two principal questions are involved--Was the Board an independent, legal entity which could be sued alone as such? If not, what was the legal effect of the City, as a necessary party, having had its demurrer to the petition sustained by reason of the appellant's failure to file with the city clerk a notice or claim in compliance with G.S.1935, 12-105?

In the amended petition it is alleged that the City was the owner of the water and light department, which was operated by the Board, and that no notice was served within the statutory period and 'for that reason no cause of action is herein plead against the city * * *; but that said * * * city is a necessary party for the complete determination of the controversy * * * by reason of its being the owner of said Water and Light Department.' The demurrer of the City to such petition was sustained on December 13, 1945. The notice of appeal was not filed until May 2, 1946, which was four months and nineteen days after the demurrer was sustained. The statute in effect at the time (now G.S.1945 Supp., 60-3309) allows only two months. Consequently, the appeal from the order sustaining the City's demurrer was too late and there can be no question lingering as to the liability of the City, even though appellant asserts in his specifications of error that the ruling was wrong.

From the foregoing it follows that there remains for consideration the question whether the Board was an independent, legal entity and was liable alone as such for alleged negligence of its employees. In other words, was the City a necessary or indispensable party to further proceedings in the action? The case is most unusual, perhaps unique, in Kansas in that an alleged necessary party was made a party but is no longer a party to the litigation.

In the case of Seely v. Board of Public Utilities, 143 Kan. 965, 57 [162 Kan. 207] P.2d 471, almost the identical question presented by this appeal was before this court in an action for damages predicated upon alleged negligence of the same defendants in the operation of the same municipal light and power plant. From the cited case the following is quoted:

'The principal question in the appeal and cross-appeal is whether the board of public utilities is independently liable for plaintiff's injuries, or does that liability rest on the city itself, or should it be imposed on both defendants?' At page 968 of 143 Kan., at page 473 of 57 P.2d.

The opinion in the cited case refers to four of our cases in which we have considered various phases of the statutes which create a separate office or board of management, operation and control of the municipal water and light plant of Kansas City and thereafter states as follows:

'Nowhere in the statute to we find a plain legislative declaration which relieves the city of damages to persons or property caused through the negligent operation of the electric light plant, nor does the statute specifically transfer and impose such liability upon the board of public utilities as a wholly independent legal entity. * * *.' (Emphasis supplied.) At page 972 of 143 Kan., at page 475 of 57 P.2d.

The opinion in the cited case also calls attention to the fact that even though the municipal plant was being operated at a profit and had a substantial surplus on hand, nevertheless the City would be liable for the payment of any judgment which might be obtained against the Board by reason of the negligent operation and management of the utility on the part of the Board. We also held therein that a ruling relieving the City from liability as a separate entity would involve constitutional questions of no little gravity. The opinion closes as follows:

'This court holds that the city of Kansas City was both a proper and a necessary party to this action, and that the board of public utilities was and is a quasi-legal entity properly impleaded in this action and sufficiently qualified to participate in this litigation (Board of Directors of Fort

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