Meddles v. Western Power Division of Central Tel. & Utilities Corp., 47880
|219 Kan. 331,548 P.2d 476
|10 April 1976
|Margaret MEDDLES, Appellee, v. WESTERN POWER DIVISION OF CENTRAL TELEPHONE & UTILITIES CORPORATION, Appellee, and The City of Great Bend, Kansas, a Municipal Corporation, Appellant.
|United States State Supreme Court of Kansas
Syllabus by the Court
1. It is the duty of the supreme court, on its own motion, to raise the question of its jurisdiction to entertain an appeal.
2. An order made during the course of pretrial proceedings is not appealable as a matter of right until after final judgment, unless it has the effect of disposing of all the issues in the case.
3. An order made during the course of pretrial proceedings determining the question of the right of indemnification by one defendant from a codefendant in the event the defendant is held liable to the plaintiff, is not appealable as a matter of right until a final judgment is entered in the case.
Edward R. Moses, Great Bend, argued the cause, and was on the brief for appellant, City of Great Bend.
Thomas J. Berscheidt, Great Bend, argued the cause, and Jerry M. Ward, Great Bend, was with him on the brief for appellee, Western Power Div. of Central Telephone & Utilities Corp.
H. Lee Turner and Raymond L. Dahlberg, of Turner & Hensley, Great Bend, Chartered, were attys. of record for appellee, Margaret Meddles.
This is an action to recover damages for personal injuries sustained by the plaintiff-appellee, Margaret Meddles, when she fell in a parking area adjacent to a sidewalk in the city of Great Bend. The plaintiff brought suit against Western Power Division of Central Telephone and Utilities Corporation, hereinafter referred to as Western Power, and against the city of Great Bend, hereinafter referred to as the city. The plaintiff alleged that both defendants were negligent and careless in the erection, construction, and maintenance of a water meter box located in the parking area where the plaintiff fell. Discovery depositions were taken by the parties which revealed that on the day of the accident the plaintiff was riding as a passenger in her daughter's automobile. The automobile pulled into a diagonal parking area and stopped. Thereupon, plaintiff proceeded to get out of the automobile when the fall occurred. The plaintiff was unable to say where she fell or what caused her to fall. The evidence showed that a water meter box with a manhole cover was located in the general area where the plaintiff fell. The meter box with its cover extended approximately one inch above the concrete surface of the paved street. At some time in the past a concrete ring had been placed around the meter box and tapered to the level of the street surface. Although the meter box itself was normal and in good condition, there was broken cement around the meter box which made the surface rough and uneven. There was no available evidence as to who placed the concrete ring around the meter box nor when it was done. It apparently had been there for many years.
It was undisputed that Western Power operated the waterworks system of Great Band under the terms of a franchise agreement. After discovery was completed, Western Power moved for summary judgment against the plaintiff's claim. The district court sustained the motion of Western Power and granted summary judgment in favor of Western Power for the reason that there was no evidence that the meter box and cover were in disrepair or defective, or that plaintiff's injuries were caused or related to the operations of the waterworks system by Western Power. The trial court found that plaintiff's evidence failed to sustain her allegations of negligence against Western Power. The trial court further found as a matter of law that the city was not entitled to indemnity from Western Power in the event the city was held liable for plaintiff's injuries. The city also filed a motion for summary judgment which the trial court overruled. The city has appealed to this court from the order of the district court sustaining the motion of Western Power for summary judgment. The city has not appealed from the order of the district court denying its motion for summary judgment.
At the time the motions for summary judgment were determined by the trial court the city of Great Bend did not have on file a cross-claim or a third-party petition seeking indemnification from Western Power. The question of liability of the city of Great Bend for its negligence has never been tried or determined. At the outset we must first consider the question of whether or not this court has jurisdiction to hear and determine the appeal of the city from the order sustaining Western Power's motion for summary judgment against plaintiff's claim. We have concluded that this court does not have jurisdiction to hear this appeal. Appeals to the supreme court from judgments of the district court are controlled by K.S.A. 60-2102 which provides as follows:
'(1) An order that discharges, vacates, or modifies a provisional remedy.
'(2) An order that grants, continues, modifies, refuses, or dissolves an injunction, or an order that grants or refuses relief in the form of mandamus, quo warranto or habeas corpus.
'(3) An order that appoints a receiver, or refuses to wind up a receivership or to take steps to accomplish the purposes thereof, such as directing sales or other disposal of property, or involving the tax or revenue laws, or the title to real estate, or the constitution of this state, or the constitution, laws or treaties of the United States.
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Kan. Med. Mut. Ins. Co. v. Svaty
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