Klingberg v. Atchison, T. & S.F. Ry. Co.
| Decision Date | 06 May 1933 |
| Docket Number | 31014,31015. |
| Parties | KLINGBERG et al. v. ATCHISON, T. & S. F. RY. CO. ANSTAETT v. SAME. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Paragraph of railroad's answer in action for damages for loss of elevator and warehouse property caused by fire, alleging that plaintiffs were not real parties in interest because loss was covered by insurance which was collected, held improperly stricken out (Rev. St. 1923, 60--401).
Paragraph of railroad's answer in action for damages for loss of property by fire, alleging conditions about property created fire hazard susceptible of ignition by smokers, tramps, and by spontaneous combustion, held not plea of contributory negligence, and therefore properly stricken out.
Paragraph in defendant's answer challenging authority of attorney appearing for plaintiff to appear in action, raised as part of general issue, held properly stricken out (Rev. St. 1923 7--107).
1. In an action to recover damages for the loss of elevator and warehouse property caused by fire communicated by defendant's railway engine, it was proper for defendant to plead that plaintiffs' loss had been fully covered by insurance and that they had collected the full amount thereof, and in consequence that plaintiffs were not the real parties in interest and could not maintain the action; and held, that the paragraph alleging facts thus pleaded was erroneously stricken from defendant's answer.
2. Another paragraph of defendant's answer which alleged that there were conditions in and about the elevator and warehouse property which created a fire hazard susceptible of ignition by smokers, by tramps, and by spontaneous combustion, did not constitute a plea of contributory negligence, and it was properly stricken from the answer.
3. The statute (R. S. 7--107) prescribes the exclusive method of challenging the authority of an attorney to appear in an action, and a paragraph in defendant's answer which sought to raise that question as part of the general issue was properly stricken out.
Appeal from District Court, Osage County; Carey E. Carroll, Judge.
Separate actions by Anna M. Klingberg and others, and by Fred Anstaett, against the Atchison, Topeka & Santa Fé Railway Company. From an order striking out certain paragraphs of the defendant's answers on motion by the plaintiffs, the defendant appeals.
Affirmed in part, and reversed in part, and cause remanded, with instructions.
Wm. R Smith, Alfred A. Scott, Charles J. Putt, all of Topeka, and A. K. Stavely, of Lyndon, for appellant.
Ralph T. O'Neil, John D. M. Hamilton, and Barton E. Griffith all of Topeka, for appellee.
These actions consolidated for the purposes of this intermediate appeal were begun by plaintiffs to recover damages for the destruction of an elevator and two warehouses situated on and near defendant's railway right of way in Osage City.
In case No. 31014, plaintiffs as owners of these properties charged that their destruction was negligently caused by fire communicated by an engine operated by defendant. They also alleged that the fair value of the destroyed elevator was $4,500, that one of the warehouses similarly destroyed was of the value of $1,250, and that damages to the extent of $300 were likewise done to their second warehouse. Plaintiffs prayed judgment for $6,050 and for attorneys' fees.
The railway company's answer contained a general denial and also contained three paragraphs of matters which may be summarized thus:
In paragraph 3 it was pleaded that plaintiffs had no legal right to maintain the action because they were not the real parties in interest; that the elevator and warehouses were covered by various insurance policies aggregating $5,000; that the sum of these policies had been paid to plaintiffs; and that the insured properties did not have a value exceeding the amount of the insurance thus paid to plaintiffs.
In paragraph 4 defendant alleged that adjacent to the elevator and in possession of plaintiffs' tenant there was a shed in which cobs, elevator dust, and refuse in large quantities were permitted to remain, and these materials were subject to ignition by spontaneous combustion; that this shed was open at one end; that these conditions created a fire hazard susceptible to ignition by persons smoking pipes, cigars, or cigarettes; and that the open condition of this shed furnished a harbor for tramps and other indigent persons having no business on the premises; and "That the fire which destroyed the elevator originated in said shed or addition so negligently maintained by said Anstaett who was the tenant of the plaintiffs."
In paragraph 5 defendant alleged that counsel representing plaintiffs in this action were never employed or retained by them, but were retained and employed by the several insurance companies which had carried the insurance on the properties destroyed by the fire, and that those companies could have no claim for attorneys' fees against defendant.
In case No. 31015, plaintiff, as tenant of the elevator and warehouses, among other matters not now important, alleged that he had grain and grain products stored in the elevator of the value of $8,631.97;that these were destroyed by the fire, except a salvage value of $348.10. He prayed judgment for $8,283.87 and for attorneys' fees.
Defendant's answer in case No. 31015 contained a general denial; also three paragraphs of the same trend as those outlined above that the grain and grain products were covered by insurance policies aggregating $7,000, which had been paid to plaintiff, that the amount so paid was full compensation for all loss sustained by plaintiff, and in consequence plaintiff was not the real party in interest and had no right to maintain the action. The other two paragraphs of the answer were substantially as summarized in case No. 31014.
On motion of plaintiffs these paragraphs 3, 4, and 5 in each of the answers were stricken on the ground that neither of them nor all of them together would constitute a ground of defense to plaintiffs' separate actions, and that the matter contained therein was incompetent, irrelevant, immaterial, or prejudicial.
The railway company brings this ruling here for review. Meantime the trial court has stayed further proceedings.
1. Touching the defense that plaintiffs had been fully compensated for their loss by...
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