Hudson v. J.E. Ketchum

• Decision Date: 23 January 1943
• Docket Number: 35738.
• Parties: HUDSON v. J. E. KETCHUM et al.
• Court: Kansas Supreme Court

133 P.2d 171

156 Kan. 332

HUDSON v. J. E. KETCHUM et al.

No. 35738.

Supreme Court of Kansas

January 23, 1943

Syllabus by the Court.

Under statute requiring liability insurance of public motor carriers before issuance of certificates or licenses for operation of transport trucks to such carriers, policy issued to transport truck owner covered operation of truck, not only by owner, but also by any other person. Gen. St.1935 66-1,128.

Ordinarily a single action against tort feasors and a contract obligor is objectionable for "misjoinder" except where a licensed motor carrier as wrongdoer and his statutory insurer as contract obligor are sued in one action for injuries sustained in a highway collision. Gen.St.1935, 60-705; 66-1,128.

Where an insurer's contract obligation is given to protect the public within statute requiring liability insurance of motor carriers before the issuance of certificates or licenses, to such carriers, an insurer may be sued independently, without impleading the carrier, for injuries sustained in a highway collision involving the carrier. Gen. St.1935, 60-705; 66-1,128.

An adjudication adverse to plaintiff in a separate action against an insured public motor carrier for injuries sustained in a highway collision would preclude an action against the carrier's statutory liability insurer because such adjudication would be a judicial determination in favor of carrier relieving insurer of liability. Gen.St.1935 66-1,128.

Plaintiff before suing motor carrier operating truck and truck driver for injuries sustained in highway collision with truck, properly filed in receivership action of insolvent statutory mutual liability insurer of truck owner who had loaned truck to operator, a claim for such injury, where insurer's maximum liability was limited to $5,000, and plaintiff sought $25,000 from operator and driver. Gen.St.1935, 66-1,128.

Amount collected by plaintiff on receivership claim against insolvent statutory mutual liability insurer of owner of transport truck for injuries sustained in highway collision with truck operated by motor carrier to whom owner had loaned truck should be credited on judgment which plaintiff sought to recover against operator and driver of truck. Gen.St.1935, 66-1,128.

Partial allowance of plaintiff's receivership claim against insolvent statutory mutual liability insurer of owner of transport truck for injuries sustained in highway collision with truck operated by motor carrier to whom owner had loaned truck did not bar common-law action against owner and operator of truck for such injuries. Gen.St.1935, 66-1,128.

Where plaintiff sustained injuries in a highway collision between plaintiff's automobile and a licensed transport truck, the operator of which held a policy of insurance issued in conformity with the statutory requirement, G.S.1935, 66-1,128, and where the insurance carrier was placed in receivership in an action brought by the state on the relation of the attorney general, the filing of a claim in that action and its partial allowance was not a bar to plaintiff's common law action for damages against the operator of the transport truck and his employe.

Appeal from District Court, Neosho County; LeRoy Bradfield, Judge.

Action by Frank Hudson against J. E. Ketchum, doing business under the tradename and style of J. E. Ketchum Oil Company, and another, for injuries sustained in an automobile collision. From a judgment sustaining demurrers to his reply, plaintiff appeals.

Reversed and remanded with instructions.

Douglas Hudson, of Fort Scott (Howard Hudson, of Fort Scott, and Ray S. Pierson and William A. Buckles, both of Burlington, on the brief), for appellant.

Joe F. Balch and George W. Donaldson, both of Chanute, for appellees.

DAWSON Chief Justice.

This is an action for damages growing out of a collision of motor vehicles on U.S. Highway No. 505 near Waverly in Coffey county.

On the morning of July 3, 1939, plaintiff was driving eastward on that highway in his Chevrolet car. About two miles northwest of Waverly, his car was struck by a westbound transport truck owned by one R. R. Hoddy, which had been loaned to one J. E. Ketchum and was being driven by Ketchum's employe, Eddie Markham. The carrier's license to operate the truck was in the name of Ketchum. Hoddy carried the requisite statutory insurance covering the lawful operation of the transport truck, which had been issued by the Industrial Mutual Liability Insurance Company.

On March 23, 1940, an action was begun in the district court of Sedgwick county, entitled "State of Kansas ex rel. Jay S. Parker, Attorney General, v. The Industrial Mutual Liability Insurance Company," in which a receiver was appointed for said company, presumably on account of its insolvency.

On June 21, 1940, plaintiff herein filed in that receivership action his verified claim for $5,000 for injuries sustained in the highway collision, that sum being the maximum liability of the insurance company under its policy as statutory insurer for Hoddy as owner and Ketchum as operator of the transport.

On August 15, 1940, plaintiff's claim was allowed in the sum of $750 as a common claim and was disallowed as to the balance of his demand. It is stipulated that plaintiff's claim was one of twenty-three demands by various other claimants likewise allowed against the insolvent corporation in the Sedgwick county district court.

In plaintiff's present action for damages the usual allegations of due care on plaintiff's part and the usual allegations of negligence and wrongdoing on the part of defendants are alleged, and judgment in the sum of $25,000 is prayed for.

The answers of defendants make certain admissions and denials, and then plead specifically the facts of the receivership action; of the allowance of plaintiff's claim against the insurance carrier in the sum of $750; that three dividend checks had been issued by the receiver in favor of plaintiff in the sums of $67.50, $67.50, and $22.50; and--"That plaintiff did not and has not appealed from the order of allowance of his claim as hereinbefore alleged; that the negligence and acts for which recovery was had in the action hereinbefore alleged are the acts and negligence complained of in plaintiff's first amended petition filed herein; and that by reason of the foregoing allegations, plaintiff cannot now maintain the instant action."

Plaintiff's reply admitted the presentation of his $5,000 claim in the receivership suit and its allowance in the sum of $750 as a common claim, but denies that he had received any dividends or payments from the receiver or otherwise in that suit.

The defendants Ketchum and Eddie Markham filed separate demurrers to plaintiff's reply "for the reason that said reply shows on its face that plaintiff does not have a cause of action against this defendant."

These demurrers were sustained. Hence this appeal.

It was the view of the trial court, as it is of the appellees here, that the proceedings in the receivership action in Sedgwick county were and are a bar to the present action against Ketchum and Markham.

The statutory insurance policy issued by the insurance company now in receivership covered the operation of the truck not only by Hoddy as owner but also by any other person. G.S.1935, 66-1,128; Dunn v. Jones, 143 Kan. 218, 53 P.2d 918. In this action the liability of Ketchum and Markham sounds in tort; that of the insurance company in contract. Ordinarily a single action against tort feasors and a contract obligor would be subject to an objection for misjoinder under the...