Kennedy v. Thompson
| Decision Date | 05 May 1956 |
| Docket Number | No. 40030,40030 |
| Citation | 179 Kan. 532,297 P.2d 210 |
| Parties | Lucia KENNEDY, Administratrix of the Estate of Walter R. Kennedy, Deceased, v. Guy A. THOMPSON, Trustee for the Missouri Pacific Railroad Company, a Debtor Corporation, Appellant, and Virgil H. Johnson and Rex Bratcher, Doing Business as Johnson-Bratcher Construction Company, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. Following the rule announced in Poteet v. Simmons, 171 Kan. 86, 229 P.2d 747, and Smith v. Kagey, 146 Kan. 563, 73 P.2d 56, it is held that in an action brought by a plaintiff under the Federal Employers' Liability Act against a single defendant to recover damages for the death of an employee the defendant may not, on his application, properly join a third person as a party defendant in the action where the plaintiff's petition states no cause of action against the third person and the defendants' cross petition, filed against such third person, seeks only to shift any recovery by plaintiff as against the defendant to the third person or to permit the defendant to recover over as against such third person.
2. The record in the action described in the first paragraph of this syllabus examined, and held, that under the facts, conditions and circumstances set forth in the opinion the trial court did not err in sustaining the involved motion to quash service of summons.
Wm. P. Thompson, Wichita, A. W. Hershberger, J. B. Patterson, Richard Jones, H. E. Jones, and Jerome E. Jones, Wichita, on the brief, for appellant.
Robert C. Foulston, Wichita, George B. Powers, Carl T. Smith, John F. Eberhardt, Samuel E. Bartlett, Stuart R. Carter, Malcolm Miller, Robert N. Partridge, Robert M. Siefkin, Richard C. Harris and Gerald Sawatzky, Wichita, on the brief, for appellees.
Lucia Kennedy brought this action, as administratrix of the estate of her deceased husband, in Sedgwick County against the defendant, Missouri Pacific Railroad Company, to recover damages under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for the death of her husband who was killed July 7, 1954, in Saline County, while performing his duties as an employee of the railroad on railroad property.
Supplementing the foregoing factual statement it may be said that in her petition plaintiff alleged that while assigned to duty as a conductor of a switch engine, spotting cars on a side track at a grain elevator in Salina, her deceased husband fell through an opening in a steel grating above an underground hopper, designed to receive grain from defendant's railroad cars on the side track, thereby sustaining injuries resulting in his death, and in general terms charged that such accident resulted from several acts of negligence on the part of the railroad company, including failure to provide the decedent with a safe place in which to work.
Upon the filing of her petition plaintiff caused a summons to be issued and served upon the defendant railroad company. Thereafter such defendant appeared in court and filed a motion asking that Virgil H. Johnson and Rex Bratcher, residents of Saline County, d/b/a Johnson-Bratcher Construction Company, be made additional parties defendant. In this motion the railroad alleged that Johnson and Bratcher, at the time of the death of the deceased, had been constructing a concrete terminal elevator, and in connection therewith had constructed and were engaged in the construction of the grain pit or hopper described in plaintiff's petition. It was further alleged that if the defendant railroad was liable to plaintiff, that liability could be predicated only upon an obligation imposed upon it by law, arising out of the active negligence of Johnson and Bratcher, in the performance of the described construction work, and that therefore the railroad would be entitled to recover from Johnson and Bratcher any amount which, in the action, it might be found to be obligated to pay plaintiff; and then alleged that making Johnson and Bratcher additional parties defendant would avoid a multiplicity of actions and permit determination in one action of all issues arising out of the circumstances set out in the petition.
After the filing of the motion above mentioned the trial court made an order directing that Johnson and Bratcher be made additional parties defendant. Thereupon the defendant railroad filed its answer, and its cross petition, against Johnson and Bratcher, wherein it repeated in substance the relevant allegations of the heretofore summarized motion and prayed that in the event it...
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Security Insurance Co. of New Haven v. Johnson
...negligence. Appellees' motion to quash service of summons was granted by the state trial court, and sustained on appeal. Kennedy v. Thompson, 179 Kan. 532, 297 P.2d 210. The case was tried between Kennedy's administratrix and the railroad, and was defended on behalf of the railroad by the p......
- Winfough v. Tri-State Ins. Co.