Kennedy v. Thompson, No. 40030

• Court: United States State Supreme Court of Kansas
• Writing for the Court: Wm. P. Thompson, Wichita, A. W. Hershberger; PARKER
• 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.
• Decision Date: 05 May 1956
• Docket Number: No. 40030

Page 210

297 P.2d 210 179 Kan. 532 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. No. 40030. Supreme Court of Kansas. May 5, 1956. 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.

PARKER, Justice.

Lucia Kennedy brought this action, as administratrix of the estate of her deceased husband, in Sedgwick County against [179 Kan. 533] the defendant, Missouri Pacific Railroad

Page 211

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,...