Lehmkuhl v. Junction City

• Decision Date: 07 April 1956
• Docket Number: 40017,Nos. 40016,s. 40016
• Citation: 179 Kan. 389,295 P.2d 621,56 A.L.R.2d 1409
• Parties: , 56 A.L.R.2d 1409 Fred LEHMKUHL and Pauline Lehmkuhl, husband and wife, Appellants, v. JUNCTION CITY, a Municipal Corporation, Appellee. Warren LEHMKUHL and Betty Lee Lehmkuhl, husband and wife, Appellants, v. JUNCTION CITY, a Municipal Corporation, Appellee.
• Court: Kansas Supreme Court

Page 621

295 P.2d 621

179 Kan. 389, 56 A.L.R.2d 1409

Fred LEHMKUHL and Pauline Lehmkuhl, husband and wife, Appellants, v. JUNCTION CITY, a Municipal Corporation, Appellee.

Warren LEHMKUHL and Betty Lee Lehmkuhl, husband and wife, Appellants, v. JUNCTION CITY, a Municipal Corporation, Appellee.

Nos. 40016, 40017.

Supreme Court of Kansas.

April 7, 1956.

Syllabus by the Court.

In an action for the wrongful death of plaintiffs' three-year-old son, the petition alleged a hole was allowed to exist within the limits of a city of the second class in close proximity and adjacent to a city street; that it was 18 feet deep and had been partly filled with debris while being used as a city dump so that there was formed across the top of it a crusty layer which gave the impression the hole had a solid substructure, when as a matter of fact the substructure was not solid but consisted of trash and stagnant water and was incapable of supporting any weight, and the three-year-old son of plaintiffs attempted to walk on it and was drowned--Held (1) the question of whether under all the facts and circumstances the hole described in the petition constituted a nuisance should have been submitted to the jury under proper pleadings; (2) a city is liable for damages to person or property arising from its maintenance of a nuisance; (3) the petition stated a good cause of action against the city; and (4) the demurrer of the defendant city to the petition on the ground it did not state a cause of action against the city should have been overruled.

D. Clifford Allison, Wichita, and Robert K. Weary, Junction City, Payne H. Ratner, Louise Mattox, Payne H. Ratner, Jr., Russell Cranmer, Dale B. Stinson, Jr., Cliff W. Ratner, William L. Fry, A. Wayne Murphy, Ray A. Overpeck, Bernard V. Borst, H. K. Greenleaf, Jr., Wichita, and U. S. Weary, Junction City, on the briefs, for appellants.

C. L. Hoover Junction City, Robert A. Schermerhorn and A. B. Fletcher, Jr., Junction City, on the briefs, for appellee.

SMITH, Chief Justice.

These are actions for the wrongful death of two young boys. They were consolidated in the trial court and are consolidated here. The pleadings in only one will be referred to here. The demurrers of the defendant city to plaintiffs' amended petition were sustained. Plaintiffs have appealed.

The amended petition alleged the residence of plaintiffs; that they were husband and wife and that defendant was an incorporated city; that they were the parents of Paul Ray, about three and a half years old as of September 15, 1952; that about that date and for a considerable time before there existed a hole at a point approximately 100 to 150 feet north of a viaduct on East Sixth Street in defendant city; that it extended north and south of the viaduct in what was at the time of filing the petition the East Street in defendant city in what at that time would have been an extension of East Street, except for the hole; that it was 100 feet wide and was filled with water to a depth of about 18 feet on September 15, 1952; that the defendant city had control of it and had exercised such control for some time; that it was created by the 1951 flood subsequent to the time when the city had acquired control over the area; that about December 18, 1951, the city changed the location of the city dump to the hole just described, all within the city limits, and thereupon trash, junk and debris were dumped into the hole without draining the water therefrom; that the city continued to so use the hole until about February 25, 1952, at which time it was discontinued; that the dump was maintained adjacent to East Sixth Street and in close proximity thereto and by reason of the manner in which the trash, junk and debris were deposited into the hole there was formed across the surface of it a crusty layer of such materials that gave the impression it had a solid substructure, when in fact its substructure consisted of stagnant water, loose trash and junk, and was incapable of supporting any person who might attempt to walk upon it, and was in fact a trap for the unwary who might walk across it; that the hole existed in that condition from about February 25, 1952; until September 22, 1952, and the hole and surrounding area were under control of defendant all that time; that this hole in such condition was extremely dangerous and known to be so by the defendant city, its agents and officials; that despite such knowledge it was allowed to exist in the immediate proximity of a public street and was not posted as being dangerous nor were plaintiffs, their son or the public given any notice as to its dangerous condition, although defendant, its governing body and its officials and agents, knew, or should have known, that persons were frequently in the immediate vicinity of it and were likely to fall through its false surface and be injured or killed; that on or about September 15, 1952, at a time when the hole was dangerous Paul Ray Lehmkuhl, a minor child, about three and a half years old, and over whom plaintiffs had always exercised a reasonable degree of parental control, together with Milton Lee Lehmkuhl, about four, did without warning or knowledge of the dangerous condition of the hole walk upon its surface and it collapsed beneath their feet, causing them to fall into the water under the false surface, and drown; that the death of Paul Ray was caused by wanton and careless acts of the city, defendant, and its governing body, officials, agents, servants and employees, in creating the trap alleged; in failing to properly fill or otherwise eliminate it; in failing to erect barriers, guards or fences; in failing to warn the public of its dangerous condition; and in failing to take any precautions for the protection of the public.

The amended petition then alleged damage to the parents for the loss of their son and the making of a claim to the city and its rejection and that the action was brought by plaintiffs as next of kin to decedent and no personal representative had been appointed for Paul Ray.

To this amended petition defendant city demurred on the ground that it did not state sufficient facts to constitute a cause of action. The demurrer was sustained--hence this appeal.

The defendant city argues its demurrer was correctly sustained because the petition showed the hole where plaintiffs' son was drowned was a public dump maintained by the city, which it was doing in its governmental capacity. It points out that a city is not liable for the negligent acts or omissions of its officers when acting in the performance of governmental functions.

There is an exception to this rule. In Jeakins v. City of El Dorado, 143 Kan. 206, 53 P.2d 798, we held:

'Cities of the second class are granted the power to erect and maintain sewers and sewage disposal plants, but they are not warranted in so operating them as to constitute a public nuisance; if so operated, they are liable in damages to the person or persons injured, it being no defense that such erection, maintenance, and operation are in the exercise of a governmental function.' (Syl. p1.)

In that opinion reference is made to a note on the subject of municipal...