James v. City of Wichita

• Citation: 202 Kan. 222,447 P.2d 817
• Decision Date: 07 December 1968
• Docket Number: No. 45161,45161
• Parties: Moetta JAMES, Appellant, v. The CITY OF WICHITA, Kansas, and Loyns Manuel, Appellees.
• Court: United States State Supreme Court of Kansas

Page 817

447 P.2d 817

202 Kan. 222

Moetta JAMES, Appellant, v. The CITY OF WICHITA, Kansas, and Loyns Manuel, Appellees.

No. 45161.

Supreme Court of Kansas.

Dec. 7, 1968.

Rehearing Denied Jan. 9, 1969.

Syllabus by the Court

1. Compliance with K.S.A. 12-105 is a condition precedent to a claim for relief against a city on account of injuries to person or property.

2. Performance of the conditions imposed by K.S.A. 12-105 must be pleaded and proved but it is sufficient under K.S.A. 60-209(c) to aver generally that all conditions precedent have been performed.

3. A petition filed against a city on account of injury to person or property which fails to aver generally that all conditions precedent have been performed fails to show that the pleader is entitled to relief and is insufficient.

4. Permission to amend a pleading should be freely granted in the interest of justice and an amendment will relate back to the date of the original pleading (1) when the claim asserted in the amended pleading arose out of the conduct, transaction or occurrence attempted to be set forth in the original pleading, (2) when the opposing party received adequate notification of the conduct, transaction or occurrence giving rise to the claim and (3) when it will not be inequitable or unjust to relate the amendment back.

5. In an action against a city for injuries received it is held (1) the petition was insufficient and (2) the trial court erred in refusing permission to amend the same.

James W. Sargent, Wichita, argued cause and L. D. Klenda, Wichita, with him on brief for appellant.

H. E. Jones, Wichita, argued cause and John Dekker, Wichita, with him on brief for appellee, The City of Wichita.

FROMME, Justice.

This is an appeal from a judgment dismissing an action against a city for the reason the petition failed to contain a sufficient statement and denying permission to amend the petition for the reason the statute of limitations had intervened.

The petition filed by Moetta James alleges:

'On August 28, 1964, at the intersection of Payne and 17th Streets, In Wichita, Sedgwick County, Kansas, Loyns Manuel, an agent of the City of Wichita, while acting upon the business of the City of Wichita, negligently drove a motor vehicle against the vehicle in which plaintiff was riding.

'As a result, plaintiff was thrown down, sustained a broken collar bone, a broken knee cap, and miscellaneous bruises and abrasions, and suffered great pain of body and mind, and incurred expenses for medical attention and hospitalization in the sum of $900.00.

'WHEREFORE, the plaintiff demands judgment against the City of Wichita, Kansas, and Loyns Manuel jointly and severally in the sum of $12,000.00, the costs of this action, and such other relief and remedy as the court shall deem just and equitable.'

At a pre-trial conference, held over a year after answers were filed, the defendant city moved for a dismissal on the ground the petition failed to allege the filing of a claim as required by K.S.A. 12-105.

K.S.A. 12-105 provides:

'No action shall be maintained by any person or corporation against any city on account of injury to person or property unless the person or corporation injured shall within three (3) months thereafter and prior to the bringing of the suit file with the city clerk a written statement, giving the time and place of the happening of the accident or injury received and the circumstances relating thereto: * * * Such city shall have thirty (30) days from the time of the filing of such statement to make settlement with the claimant if it so desires.'

During argument on the motion plaintiff moved for permission to amend the petition to allege compliance with the statute. A copy of a statement of accident and injury, together with a receipt showing service on September 18, 1964, was submitted to the court in support of the motion.

The sufficiency of this statutory notice is not questioned. It reads as follows:

'Statement of Accident and Injury

'TO THE CLERK OF THE CITY OF WICHITA, KANSAS:

'On August 28, 1964, at approximately 2:30 o'clock p. m., at the intersection of Payne and 17th Streets in the City of Witchita, Kansas, a collision occurred between the automobile driven by Sharon Kay James and a Sanitation Truck of the City of Wichita driven by Lyons (sic) Manuel, a City employee.

'Moetta James was a passenger in the automobile driven by Sharon Kay James. As a result of the collision caused by negligence of the driver of the Sanitation Truck, Moetta James sustained a broken collar bone, a broken knee cap, and miscellaneous bruises and abrasions. She is currently confined at St. Francis Hospital and School of Nursing, Inc., and the amount of injury which she has sustained is presently undeterminable.

'I hereby certify that the same is correct, reasonable and just.'

The petition was filed within two years after the accident. The amendment, if allowed, would have been made after the two year statute of limitations had run.

The first question presented is whether the statement in the petition is sufficient to set forth a claim showing the pleader is entitled to relief against the city under our present rules of pleading.

K.S.A. 60-208(a) provides:

'A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded.'

The statute requires a short and plain statement of the claim showing the pleader is entitled to relief.

K.S.A. 60-209(c) provides:

'Conditions precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.'

In the present case the pleader did not attempt to plead compliance with K.S.A. 12-105. She did not plead performance of the condition precedent by a general averment.

To support her position, that the statement of claim set forth in the petition was sufficient, plaintiff points out the petition follows Form No. 13 contained in the appendix of forms referred to in K.S.A. 60-268. These forms are for illustration purposes. They are intended to indicate the simplicity and brevity of statement which the rules of pleading contemplate. The provisions of the pleading statutes control any decision which concerns the actual sufficiency of a pleading. The form used as a model (Form No. 13) does not purport to state a claim for relief against a municipality and its contents are not persuasive in the present case.

In a long line of cases this court has held compliance with K.S.A. 12-105 is an indispensable element in a claim for relief against a city. In Cook v. City of Topeka, 75 Kan. 534, 90 P. 244, the effect of the statute on pleading a claim for relief was considered and discussed. In subsequent cases this court consistently held the filing of the statutory statement of accident and injury was a condition precedent to maintenance of the action and must be pleaded and proved. (See Hibbs v. City of Wichita, 176 Kan. 529, 271 P.2d 791.) Under our former practice which required fact pleading this condition precedent had to be pleaded and proved with particularity. (See Hibbs v. City of Wichita, supra; McGinnis v. City of Wichita, 180 Kan. 608, 306 P.2d 127; Alexander v. City of Arkansas City,193 Kan. 575, 396 P.2d 311.)

Compliance with the statute remains a condition to be met before a claim for relief against a city may be maintained. A party who fails to file the statutory statement is not entitled to relief.

It is conceded in this case the plaintiff complied with the statute but failed to plead her compliance. Our pleading statute requires a general averment that conditions precedent have been performed or have occurred. (K.S.A. 60-209(c)) Under the concept of notice pleading a general averment is sufficient. It is no longer necessary to set forth with particularity all facts required to prove compliance.

Performance of this condition precedent is a prerequisite to a valid claim for relief against the city. The plaintiff did not aver performance of the condition. Therefore the petition did not indicate the pleader was entitled to relief. The petition was defective.

We turn to the second question presented.

At pre-trial conference the plaintiff moved for permission to amend the petition in this particular. It is conceded the statutory statement of claim was filed with the city clerk in compliance with K.S.A. 12-105. The original petition stated a claim based upon the same conduct or occurrence. The city did receive timely notice of the conduct or occurrence out of which the claim arose.

The code authorizing the amendment of pleadings specifies that leave shall be given freely when justice so requires. (60-215(a))

K.S.A. 60-215(c) provides:

'Relation back of amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or...