Mead v. City of Coffeyville
| Decision Date | 07 December 1940 |
| Docket Number | 34963. |
| Citation | 107 P.2d 711,152 Kan. 799 |
| Parties | MEAD v. CITY OF COFFEYVILLE. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
A ruling on a motion to make definite and certain ordinarily rests in sound discretion of trial court and therefore is ordinarily not reviewable.
Where ruling on motion to make pleading definite and certain constitutes an abuse of sound judicial discretion and prejudices a substantial right, it is reviewable.
A ruling on a motion to make a pleading definite and certain is not ordinarily an "appealable order" but the propriety of the order overruling such a motion will be considered on review of an order overruling a general demurrer to the same pleading.
A "parking" between curb and sidewalk is not ordinarily regarded as a "thoroughfare" and is not expected to be used as such by a foot passenger and therefore the degree of care a city is required to exercise over sidewalks and streets is greater than that required as to parking.
Where a petition is properly attacked, at least in part and as to some material portion by a motion to make definite and certain which plaintiff successfully resists, petition is thereafter subject to critical analysis and is strictly construed against plaintiff on general demurrer.
In action by pedestrian to recover damages from city for personal injuries sustained when the toe of her foot caught upon an iron stake approximately one-fourth of an inch in diameter which extended approximately five inches above the ground and which according to claim attached to and made part of the petition was located in parking between curbing and sidewalk, but which according to the petition proper was located in a thoroughfare, the petition did not state a cause of action, as against general demurrer.
1. While a ruling on a motion to make a pleading definite and certain is not ordinarily an appealable order, the propriety of the order overruling the motion will be considered on review of an order overruling a general demurrer to the same pleading.
2. Where a petition is properly attacked, at least in part and as to some material portion, by motion to make definite and certain, which is successfully resisted by plaintiff, the petition is thereafter subject to critical analysis and is strictly construed against plaintiff when challenged by general demurrer.
3. In an action for damages against a city alleged to have resulted from a stake one-fourth of an inch in diameter and five inches high, located in a parking, the petition examined and held, no cause of action was stated and the general demurrer to the petition should have been sustained.
Appeal from District Court, Montgomery County; J. W. Holdren, Judge.
Personal injury action by Mattie Mead against the City of Coffeyville Kan. Defendant's motion to make the petition definite and certain and its general demurrer to the petition were overruled and defendant appeals.
Ruling of demurrer reversed.
Aubrey Neale and Raymond Belt, both of Coffeyville, for appellant.
A. R Lamb and Clement A. Reed, both of Coffeyville, for appellee.
In this action plaintiff seeks to recover damages from the City of Coffeyville, for personal injuries sustained by reason of an alleged defect in the parking between a curbing and sidewalk. Defendant's motion to make the petition definite and certain and its general demurrer to the petition were both overruled and defendant appeals.
Plaintiff filed a claim with the city for damages. The claim was attached to and made a part of her petition. In the claim she stated in substance: The injury occurred at approximately five o'clock in the afternoon of October 8, 1939. The injury was due to an obstruction in the parking on the south side of the 100 block on Twelfth street, and in front of what is commonly known as the fish market in that block. She was a customer of the fish market and was going from the market to her husband's automobile parked near the curb. The toe of her foot caught upon an obstruction which had been placed in the parking, for the purpose of anchoring the sign of the fish market.
In the petition she alleged in substance: The place of injury was on the north side of Twelfth street. The street was paved. She left the fish market located on the north side of the street at five o'clock in the afternoon and walked in a southerly direction across a space of about three feet between the sidewalk and the curbing. In that space someone she did not know who, had driven an iron stake approximately one-fourth of an inch in diameter which extended approximately five inches above the ground. In the top of the stake was an eye. Her toe caught upon the iron stake causing her to fall. The space between the sidewalk and the curbing was a thoroughfare used by the traveling public. Defendant was negligent in failing to exercise ordinary care in keeping Twelfth street free and clear of obstructions. Defendant knew or should have known of the stake or obstruction which had been in the street six months prior to the date of plaintiff's injury.
Defendant moved to have the petition made definite and certain in various respects. It is unnecessary to narrate all of them. Defendant in part requested that plaintiff be required to state: (1) The facts whereby plaintiff concluded the parking was a thoroughfare used by the traveling public; (2) the condition of the parkway and whether it was gravel, dirt or sod; (3) where in the parkway the stake was located; (4) how far the stake was from the nearest cross-walk or driveway from the street to the walk; (5) whether the stake was visible; (6) whether she saw the stake and if she did not see it what, if anything, prevented her from seeing it; (7) what other obstruction she claims was known to defendant in addition to the stake or if the stake was the only obstruction that the words "or obstruction" be stricken; (8) where in the street the stake had existed for six months, or if plaintiff meant that the stake was in the parkway that she be required to so state.
This motion was successfully resisted by plaintiff in all particulars. Defendant leveled a general demurrer to the petition. The demurrer was likewise overruled.
Plaintiff contends defendant did not appeal from the ruling on the motion and that the ruling is not here for any purpose. The notice of appeal included the ruling on the demurrer and any and all orders or decisions against defendant.
It is true a ruling on a motion to make definite and certain ordinarily rests in the sound discretion of the trial court and therefore is ordinarily not reviewable. Nelson v Schippel, 143 Kan. 546, 56 P.2d 469; Nardyz v. Fulton Fire Ins. Co., 151 Kan. 907, 101 P.2d 1045. Where, however, the ruling constitutes an abuse of sound judicial discretion and prejudices a substantial right, it is reviewable. Hasty v. Bays, 145 Kan. 463, 465, 66 P.2d 265; Lofland v. Croman, 152 Kan. 312, 316, 103 P.2d 772. It has also been held that the test of whether the ruling is reviewable is whether the allegations of the petition are so indefinite and uncertain that the true nature of the charge is not apparent. Lofland v. Croman, supra, 152 Kan. page 316, 103 P.2d 772, and cases cited. Assuming the ruling on the motion in the instant case was not an appealable order it does not follow the ruling is not here for any purpose. Where a motion or any part thereof is properly directed to a material allegation or averment in a pleading and is successfully resisted, the ruling has a vital effect upon the question of how the pleading will be interpreted when later attacked by demurrer. In the instant case the ruling on the motion is here for at least that purpose. The claim filed with the city alleged plaintiff was injured on the south side of Twelfth street and in the parking. The claim was made a part of the petition. The petition also alleged the injury occurred on the north side of Twelfth street in a thoroughfare used by the traveling public. A parking is not ordinarily regarded as a thoroughfare. A parking is not expected to be used much by foot passengers. Register v. City of Pittsburg, 139 Kan. 753, 754, 755, 33 P.2d 173. The degree of care a city is required to exercise over sidewalks and streets, is greater than that required as to parkings. Dargatz v. Dodge City, 151 Kan. 747, 749, 100 P.2d 680, and cases cited.
Defendant by its motion, properly solicited information which would clearly disclose the theory of plaintiff's cause of action. Plaintiff resisted that attempt and succeeded in withholding information which would have made clear the nature or theory of plaintiff's cause of action. The plaintiff must frame a petition upon a distinct and definite theory and upon that theory the facts alleged must state a good cause of action. Where there is confusion as to several theories upon which recovery is sought, the petition is insufficient. Grentner v. Fehrenschield, 64 Kan. 764, 68 P. 619; Lofland v. Croman, supra, 152 Kan. pages 316, 317, 103 P.2d 772. The theory, presented in her claim to the city that the alleged defect existed in the parking, was inconsistent with the theory which was in part presented by her petition, without the claim, that the defect existed in a thoroughfare. The petition in its entirety commingled both theories. As against a general demurr...
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