Kerschen's Estate, In re
| Decision Date | 08 May 1954 |
| Docket Number | No. 39236,39236 |
| Citation | 269 P.2d 1033,176 Kan. 226 |
| Parties | In re KERSCHEN'S ESTATE. NETT et al. v. WETTA. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. It is the general rule that when a petition filed for damages for wrongful death or for personal injury is not attacked by motion of any kind it should be liberally construed and a demurrer thereto upon the grounds it does not state facts sufficient to constitute a cause of action should be overruled, if, in fact, the petition does state facts sufficient to constitute some cause of action.
2. Petitions in cases such as mentioned in the preceding paragraph have been examined and found not to contain facts sufficient to constitute any cause of action and the demurrers thereto were properly sustained.
J. Francis Hesse, Wichita, argued the cause, W. D. Jochems, J. Wirth Sargent, Emmet A. Blaes, Roetzel Jochems, S. C. Durbin, Robert G. Braden, James W. Sargent, Jr., and Stanley E. Wisdom, Wichita, on briefs for appellants.
Robert N. Partridge, Wichita, argued the cause, George B. Powers, Samuel E. Bartlett, Carl T. Smith, John F. Eberhardt, Stuart R. Carter, Robert C. Foulston, Malcolm Miller, Robert M. Siefkin, Wichita, on briefs for appellee.
This appeal questions the correctness of an order of the district court sustaining a demurrer against each of two petitions filed in the probate court as claims against the estate of Jerome P. Kerschen, and at the request of the petitioners certified to the district court for trial.
The abstract discloses that on September 15, 1951, Leo R. Wetta was duly appointed administrator of the estate of Jeroms P. Kerschen; that he duly qualified as such and published a notice of his appointment on September 22, 1951.
It further shows that on June 21, 1952, Albert Kraus and wife filed in the probate court in the estate of Jerome P. Kerschen, deceased, their petition for a claim against the estate. In this they alleged that they were residents of Sedgwick county and gave their post office address; that they were the father and mother of Patricia Kraus and her next of kin; that Patricia Kraus died on September 15, 1950, as the result of the negligence of Jerome P. Kerschen, as later stated; that no administration had been had on the estate of Patricia Kraus, and further alleged the appointment of the administrator of the estate of Jeroms P. Kerschen.
If further alleged that:
'Said Ford vehicle was being driven in a southerly direction out of Hutchinson, Kansas when, at a point approximately seventeen miles south of Hutchinson, Kansas on State Highway K-17, the decedent, Jerome P. Kerschen, caused the said vehicle to be driven over and across to the east side of the said highway into a cement culvert, thereby demolishing the said automobile, killing two of the occupants of said car and causing the death of the daughter of these petitioners.
'The said Jerome P. Kerschen in driving the vehicle into said culvert, was negligent in the following particulars, to-wit:
'(a) In driving in a reckless, negligent and careless manner.
'(b) In driving said vehicle over and across to the east side of said highway and into the said culvert, which was in full view and plain sight of the decedent.
'(c) In failing to keep the vehicle under proper control so as to stop or turn aside upon having notice of any impending danger
'(d) By driving at a speed greater than was reasonable under the circumstances at the time and place above mentioned.
'The negligence of the decedent, Jerome P. Kerschen as outlined above, was the sole and proximate cause of the death of Patricia Krause.'
Plaintiffs further alleged their damages; requested the cause of action be certified and transferred to the district court under appropriate statute, and prayed for judgment in the sum of $15,000.
On the same date a petition of Hugo Nett, Jr., sixteen years of age, by his father as next friend, was filed for his claim for damages for personal injuries against the same estate alleged to have resulted from the negligence of Jerome P. Kerschen whose negligence is alleged in the same language that was charged in the Kraus petition. The petition also alleged the damages sustained; requested the transfer of the cause of action to the district court; and prayed for damages in the sum of $15,570.30.
The two petitions were duly certified and transferred to the district court where they were consolidated into one case for the purpose of hearing. In the district court Leo R. Wetta, as the administrator of the estate of Jerome P. Kerschen, deceased, filed a demurrer to each petition for the reason that the petition filed to state facts sufficient to constitute a cause of action against the estate. These respective demurrers were heard by the court; briefs were furnished by counsel; and, after due consideration, each of the demurrers was sustained. This appeal followed.
As far as the grounds of liability of the estate are concerned the petition are identical and we have printed only the grounds alleged in the Kraus case. We will speak of the cases in the singular.
In this case counsel for appellant point out that no motion of any kind was filed against the petition and argue that the petition is entitled to liberal construction; that against a general demurrer every material fact which has been well pleaded and every reasonable inference to be drawn therefrom must be construed in favor of plaintiffs. That point is well taken. It is also true that when so considered the petition must state a cause of action upon some legal principle. Counsel for plaintiffs contend that if defendant's counsel thought the petition insufficient they should have filed a motion against it. That point is not well taken. Counsel for defendant was under no legal duty to tell counsel for plaintiffs how they might amend an insufficient petition so as to state a good cause of action. See, Willett v. McCormick, 161 Kan. 658, 170 P.2d 821, and authorities there cited.
Here the petition does not state the relationship between the one killed, or injured, and the driver of the car. The only allegation is that 'Patricia Kraus was riding in an automobile which was driven by the decedent,' and 'While riding in said car she was killed because of the negligence of Jerome P. Kerschen.' We are not told whether Patricia Kraus was a guest of the driver; whether she was a paid passenger; whether she was a trespasser, or whether the parties were engaged in some joint business as in Elliott v. Behner, 146 Kan. 827, 73 P.2d 1116, or Le Clair v. Hubert, 152 Kan. 706, 107 P.2d 703. Different rules of law apply to these several situations. Defendant was entitled to know what the relationship was in order to make a defense.
In Grentner v. Fehrenschield, 64 Kan. 764, 68 P. 619, it was held:
'The averments of the petition herein examined, and it is held that there is a confusion of theories, and also that there are insufficient facts alleged to sustain any theory.' Syl. 2.
The rules laid down in this case have been cited and followed in many cases as shown by our citator but in some of them the force of rules stated in syllabus 1 has been somewhat diminished, but we find none of them diminished the force of the rule stated in syllabus 2.
In Sluss v. Brown-Crummer Inv. Co. 137 Kan. 847, 22 P.2d 965, the rule was stated thus:
'While the general rule is that, where a general demurrer is filed to a petition, no motion to make more definite and certain having been presented, the demurrer should be overruled if the facts stated constitute a cause of action whether well pleaded or not, and inconsistent causes of action do not render a pleading demurrable, a different rule must be applied where plaintiff, as a result of procuring rulings favorable to him, defeats every effort of the defendant to ascertain on what theory he founds his cause of action; and in such case, if the petition is not drawn upon a single and definite theory, or there is such a confusion of theories that the court cannot determine from the general scope of the petition upon which of several theories a recovery is sought, it is insufficient, and a demurrer thereto should be sustained.'
This was quoted and followed in Sheen v. State Highway Commission, 173 Kan. 491, 249 P.2d 934, at page 494, and referred to with approval in Lanning v. Goldsberry, 173 Kan. 654, 250 P.2d 812, at page 658. In 71 C.J.S., Pleading, § 92, it is said:
'Good practice requires the plaintiff's initial pleading to proceed on a single and definite theory; but, under modern code systems, his pleading may be held sufficient if it states a cause of action on any theory.'...
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