Miller v. Kansas Turnpike Authority

• Decision Date: 09 May 1964
• Docket Number: No. 43480,43480
• Citation: 392 P.2d 89,193 Kan. 18
• Parties: Larry G. MILLER, Appellee, v. The KANSAS TURNPIKE AUTHORITY, Appellant.
• Court: Kansas Supreme Court

Page 89

392 P.2d 89

193 Kan. 18

Larry G. MILLER, Appellee, v. The KANSAS TURNPIKE AUTHORITY, Appellant.

No. 43480.

Supreme Court of Kansas.

May 9, 1964.

Syllabus by the Court

In an action to recover damages to persons and property by reason of an automobile skidding on a slick spot on the Kansas Turnpike, under G.S.1957 Supp., 68-2015, as more fully reflected in the opinion, it is held, the trial court committed reversible error in overruling the Kansas Turnpike Authority's general demurrer to both counts of plaintiff's petition.

George B. Powers and William P. Timmerman, Wichita, argued the cause and George D. McCarthy, Carl T. Smith, John F. Eberhardt, Stuart R. Carter, Robert C. Foulston, Malcolm Miller, Robert N. Partridge, Robert M. Siefkin, Richard C. Harris, Gerald Sawatzky, Donald L. Cordes, Robert L. Howard, and Charles J. Woodin, Wichita, were with them on the briefs for the appellant.

Keith E. Sanborn and Vincent L. Bogart, Wichita, argued the cause, and William P. Higgins, Wichita, was with them on the briefs for the appellee.

Harry T. Coffman, W. W. Baldock, and J. Stephen Jones, Lyndon, were on the briefs amicus curiae.

ROBB, Justice:

This is an appeal from the trial court's order overruling the demurrer of the Kansas Turnpike Authority attacking plaintiff Miller's amended petition consisting of a first count, sounding in tort for recovery of damages by reason of personal injury and property damage, and a second count, sounding in breach of an implied warranty that the turnpike was suitable and safe for vehicular traffic thereon when operated at fifty-five to sixty-five miles per hour and within the maximum and minimum speed requirements.

Highly summarized, the amended petition alleged in the first count that defendant is an incorporated body politic under G.S.1959 Supp., 68-2003, and could be served in Sedgwick county. At 2:30 or 3:00 p. m. on April 26, 1961, Miller received a ticket at the east terminal of the turnpike in Kansas City, Kansas, and entered the turnpike to drive to Wichita, Kansas, in his 1955 Plymouth Sedan. At 6:00 p. m. when he was approximately 2.3 miles northeast of Emporia and .7 miles southwest of mile post 107, the Plymouth came into contact with a slick spot in the road caused by rainfall on the asphalt aggregate roadway, which became slick and hazardous when wet. The Plymouth crossed the highway, overturned, and threw Miller out onto the ground. He had no prior warning of the hazardous condition and there was nothing about the particular portion of the road to put him on warning. Miller was operating the Plymouth lawfully, safely, and prudently at fifty-five to sixty-five miles per hour within the prescribed speed limits. The Authority was negligent in 'failing to maintain the Turnpike in proper condition for the use and occupancy for which it was intended' and more particularly for traveling vehicles operating thereon and 'by using faulty materials in the construction and/or repair' thereof and by failing to warn motorists, particularly Miller.

Numberous notices of previous accidents in the immediate area as a result of the formulation of wet, slick and hazardous conditions were in the Authority's possession in the form of patrolmen's reports whereby the Authority had both actual and constructive notice of such hazardous condition well prior to this accident.

Then followed the allegations of personal injuries and property damages with which we are not now concerned.

Count two alleged that Miller, by accepting the ticket upon entering the turnpike, obligated himself to pay the toll charge for using the facility and in consideration therefor the Authority impliedly warranted and agreed to furnish suitable and safe highway facilities for the operation of motor vehicular traffic thereon within the posted specified speed limits. The Authority wholly failed, refused and neglected to furnish and maintain the turnpike in a suitable condition for the safe operation of such motor vehicular traffic, thereby causing Miller's injuries.

The Authority attacked this amended petition with a general demurrer because it did not state facts sufficient to constitute a cause of action in favor of Miller and against the Authority, which demurrer was overruled by the trial court and this timely appeal, challenging such order, followed.

In considering the only question here presented, which is the propriety of the trial court's order overruling the Authority's demurrer, we shall briefly review the pertinent legislative history and our opinions interpreting those portions of the Kansas Turnpike Act.

The Authority is a creature of the statute (G.S.1961 Supp., 68-2001) which reads in part:

'* * * (a) The word 'authority' shall mean the Kansas Turnpike authority, created by section 3 [68-2003] of this act, or, if said authority shall be abolished, the board, body or commission succeeding to the principal functions thereof or to whom the powers given by this act to the authority shall be given by law.'

As was stated in Anderson Cattle Co. v. Kansas Turnpike Authority, 180 Kan. 749, 755, 308 P.2d 172, at the time the Authority was created the Kansas Turnpike Act specifically waived immunity from suit for actions growing out of damage or destruction to all private...