Krey v. Schmidt

• Citation: 223 P.2d 1015,170 Kan. 86
• Decision Date: 10 November 1950
• Docket Number: No. 37981,37981
• Parties: KREY v. SCHMIDT et al.
• Court: United States State Supreme Court of Kansas

Page 1015

223 P.2d 1015

170 Kan. 86

KREY v. SCHMIDT et al.

No. 37981.

Supreme Court of Kansas.

Nov. 10, 1950.

Syllabus by the Court

1. A pleading denominated 'Special Demurrer' which challenges the plaintiff's right merely to a portion of a cause of action may be treated as a motion to strike.

2. A special demurrer which is in effect a motion to strike rests in the sound discretion of the trial court, and rulings thereon are not appealable until final judgment in the lower court, unless they affect a substantial right and in effect determine the action.

Donald R. Newkirk, of Wichita, argued the cause, and S. R. Blackburn, Tudor W. Hampton, and Ed. R. Moses, all of Great Bend, and Howard T. Fleeson, Homer V. Gooing, Wayne Coulson, Paul R. Kitch, and Dale M. Stucky, all of Wichita, were with him on the briefs for appellants.

Robert Garvin, Evart Garvin, and Morris Garvin, all of St. John, were on the briefs for appellee.

WERTZ, Justice.

Plaintiff, a minor, brought this action through his father to recover damages for personal injury caused by the negligent operation of defendant's truck, joining as parties defendant the driver, Schmidt, the owner, Popp, and the insurance carrier. Amendments were filed to the original petition to comply with portions of defendants' motion to make definite and certain sustained by the court. Subsequently defendants' motion to strike the amendments was overruled, whereupon defendants filed a motion denominated 'Special Demurrer' moving to strike paragraph 8(e) of the petition as amended, which motion also was overruled. Defendants appeal and urge that the court erred in overruling their special demurrer to that portion of plaintiff's petition as amended wherein a cause of action was attempted to be stated for willfullness for the reason that the petition failed to state facts constituting willfullness.

Pertinent parts of plaintiff's petition as amended read as follows:

'5. That on the 24th day of May, 1949 U. S. Highway, number 281, commencing at the south line of Stafford County, Kansas, ran North on the section line to a point about a quarter mile South of the boundary line between Stafford and Barton Counties, at which point said highway made a curve to the left and thence ran in a Northwesterly direction to a point about a quarter mile North to Great Bend, Kansas. That the collision hereinafter described, occurred on said highway approximately four hundred and fifty feet North West of said Stafford county curve and occurred in Stafford County, Kansas. That said U. S. Highway, number 281, has a white painted line along its said entire course, marking the center of the black top pavement on said highway, which black top pavement is approximately 24 feet wide. That said highway is and was a well used highway carrying heavy traffic in both directions, all of which facts were well known at the time of said collision by the said Francis J. Schmidt.

'6. That on Tuesday, May 24, 1949, the Plaintiff, Donald Krey, was returning, on said U. S. Highway number 281, to his home in Stafford County, Kansas, from a school he was attending in Great Bend, Kansas, and was driving a 1946 Ford automobile. That about 3:00 P.M. of said day, as he approached the point at which said collision occurred, he was driving said Ford automobile at a speed of approximately fifty miles per hour, and on the right hand side of said pavement and, traveling in a South Easterly direction; that when he reached the point of said collision, he was passing or about to pass a vehicle driven by a Mr. Kincaide, which vehicle was pulling a horse drawn mower and immediately behind said vehicle and mower was a car being driven by Eric Fischer, both of which cars were traveling at a slow rate of speed, on said pavement and, in a North Westerly direction and, on their right side of the center of said pavement. That following behind said cars, driven by Eric Fischer and Mr. Kincaide, was the truck belonging to the defendant, Harold Popp, hereinbefore described, which truck was being driven by the Defendant, Francis J. Schmidt, as the agent and employee of the said Harold Popp. That the said Francis J. Schmidt, without giving any warning or signal upon overtaking said preceding cars suddenly turned said truck to the left and across the center line of said pavement and into the line of traffic on which plaintiff was traveling in an attempt to pass the cars driven by said Eric Fischer and said Mr. Kincaide. That said truck side-swiped the left side of the Fischer car and struck the car driven by the plaintiff, overturning the car in which plaintiff was driving, causing the plaintiff to suffer the injuries hereinafter described.

'7. That the plaintiff suffered and sustained injuries from the impact of said collision and from the overturning of the car plaintiff was driving as follows, to wit: * * * (enumerating injuries).

'8. That the said collision of said truck with the Ford car plaintiff was driving and, the said injuries sustained by the plaintiff, were brought about and resulted wholly from the negligence of the driver of said truck, Francis J. Schmidt, who at that time was the agent, employee and servant of the said Harold Popp, dba H. M. Popp Truck Line of Hays, Kansas, in each of the following particulars, which was the direct and proximate cause(s) of said collision and injuries, to wit:

'a. That the defendant, Francis J. Schmidt, as he approached the point of said collision, was traveling at too high a rate of speed and at such a speed that he did not or could not stop said truck or turn to the left and pass the cars preceding him in safety, without striking the Ford car driven by the plaintiff. But the plaintiff does not know the rate of speed at which said truck was being driven.

'b. That the defendant, Francis J. Schmidt, did not have the said truck under proper control so as to turn to the left or stop said truck to avoid the collision of the said truck and the Ford car driven by the plaintiff.

'c. That the defendant, Francis J. Schmidt, was following the cars preceding him entirely too close for safety and closer than was reasonable and prudent, having due regard for the speed of said truck and the speed of the said cars immediately preceding him and of the traffic upon and the condition of said highway and he was following the said cars with said truck within less than 150 feet.

'd. That the truck driven by the defendant, Francis J. Schmidt, immediately preceding the collision, was suddenly turned to the left side of the center of the said highway in overtaking the cars immediately preceding him and which said cars were being driven in the same direction as said truck and at a time when the left side of the pavement was not free from oncoming traffic and particularly the Ford car, being driven by the plaintiff; that said cars immediately preceding the truck driven by Francis J. Schmidt was not such a distance ahead as to permit said truck overtaking and passing said cars so as to completely make said passing without interfering with the safe operation of the Ford car, which was being driven by the plaintiff and approaching from the North West and from the opposite direction.

'e. That at the time of said collision and...