Moffet v. Kansas City Fire & Marine Ins. Co.

• Decision Date: 10 May 1952
• Docket Number: No. 38615,38615
• Citation: 173 Kan. 52,244 P.2d 228
• Parties: MOFFET v. KANSAS CITY FIRE & MARINE INS. CO.
• Court: Kansas Supreme Court

Page 228

244 P.2d 228

173 Kan. 52

MOFFET v. KANSAS CITY FIRE & MARINE INS. CO.

No. 38615.

Supreme Court of Kansas.

May 10, 1952.

Syllabus by the Court.

1. An insurance policy which undertakes to insure against damages to a combine resulting from a 'collision' without limiting or restricting the nature or character of the collision is sufficiently broad to embrace a violent contact or striking together of the combine and an embankment adjacent to the highway when the combine becomes disengaged from the vehicle pulling it and is propelled into an embankment, an obstruction in its line of movement.

2. A party may not subject a pleading to strict construction on demurrer by first attacking it with a motion to strike or to make definite and certain when the motion is without substantial merit and is properly overruled.

3. As a general rule damages for breach of contract are limited to pecuniary loss sustained and the breach of contract alone does not form a basis for recovery of punitive or exemplary damages.

4. The use of the words 'willfully, wantonly and maliciously', standing alone, without any allegations disclosing such alleged conduct constitutes a naked conclusion of the pleader which is not admitted on a general demurrer.

5. G.S.1949, 60-741 expressly authorizes a motion to strike redundant and irrelevant matters when prejudicial. Failure of a party to exercise such statutory right constitutes a waiver of his right to object to such matters after joining issues thereon and such a motion when made, if meritorious, should be sustained in order to protect the rights of the movant.

6. The petition in an action to recover on an insurance policy examined, considered and held: (a) It stated a cause of action for pecuniary loss and defendant's motion and demurrer, with respect to that particular relief, were properly overruled; (b) it did not state a cause of action for punitive or exemplary damages and defendant's motion and demurrer with respect to such relief should have been sustained; and (c) other questions raised are not properly here for review.

Charles Keith Saylor, of Topeka, argued the cause, and H. K. Allen and L. M. Ascough, both of Topeka, were with him on the briefs for appellant.

Harold E. Doherty, of Topeka, argued the cause, and G. Clay Baker, of Topeka, was with him on the briefs for appellee.

WEDELL, Justice.

The plaintiff, F. A. Moffet, brought an action on an insurance policy issued by the Kansas City Fire and Marine Insurance Company, a corporation, to recover for the loss of a combine, resulting from an alleged collision, for punitive damages and attorneys' fees.

Defendant appeals from an order overruling a motion leveled against the amended petition and from a subsequent order overruling its demurrer thereto.

The amended petition will be separated into pages 1 and 2 in order to conform to appellant's motion. Page 1 of the petition reads:

'(1) Comes now the plaintiff and for his cause of action against the defendant alleges:

'(2) That plaintiff is a resident of Shawnee County, Kansas, with his correct post office address at Route No. 1, Berryton, Kansas.

'(3) Defendant is a corporation duly organized, existing and doing business under and by virtue of the laws of the State of Missouri, with authority to do business as an insurance corporation in the State of Kansas.

'(4) That defendant is organized for the purpose of writing fire insurance in the State of Kansas, as well as other insurance.

'(5) That on May 19, 1949, in consideration of the premium, the defendant issued to plaintiff its renewal policy number SP 95287, whereby it agreed to insure a certain combine, a 1937 Model 22 International, Serial No. 2237229, of the plaintiff. A copy of said policy is hereto attached, marked plaintiff's Exhibit 'A'.

'(6) Plaintiff further alleges that one the . . . day of July, 1949, the defendant issued its endorsement to the above attached policy, whereby it insured said combine for collision coverage, except that from each claim for loss or damage by collision, the amount of $50.00 shall first be deducted and whereby the 25 mile limitation endorsement was taken off the machine and no limitation is made as to the distance the machine could travel. That plaintiff cannot attach a copy of said endorsement because he does not have one and the defendant and its agent, the Wanamaker Insurance Agency, have refused and refuse to furnish plaintiff with a copy of said endorsement, but the defendant has a copy in its possession and has full knowledge of the terms.'

Page 2 of the petition reads:

'(1) Plaintiff further alleges that he cannot state the name of the agent or individual who is connected with the Wanamaker Insurance Agency who is sued and signed said endorsement but alleges that the defendant has full knowledge and information.

'(2) Plaintiff further alleges that he has fully complied with all conditions of the policy but nevertheless the defendant has refused to pay plaintiff.

'(3) Plaintiff further alleges that on or about the 23rd day of September, 1949, while enroute from Starkweather, North Dakota, to Berryton, Kansas, and near Alma, Nebraska, while the combine of plaintiff was being moved, it struck a chuck hole in the road, became disengaged from the truck which was towing it, and crashed into a bank by the side of the highway, rolled over on its side, thereby twisting, bending and demolishing said combine.

'(4) Plaintiff further alleges that as a result of the collision, the combine was totally demolished and was damaged beyond repair.

'(5) Plaintiff further alleges that at the time the combine was wrecked it was reasonably worth the sum of $1300.00 and that by the terms of the policy and endorsement, Plaintiff is entitled to recover the sum of $1250.00.

'(6) Plaintiff further alleges that after the collision plaintiff notified the defendant by calling the agent, the Wanamaker Insurance Agency at Topeka, Kansas, and that he was informed that the loss was being referred to their adjuster and that he should leave the combine at Alma, Nebraska, and that the defendants would take care of the same.

'(7) Plaintiff further alleges that he has complied with all the terms of the policy but notwithstanding this, the defendant has wilfully and wantonly refused to pay him for the damages suffered.

'(8) Plaintiff further alleges that such acts on the part of the defendant, in refusing to pay plaintiff, have been willful and malicious and are for the sole purpose of causing him undue hardship and vexation and because of the defendant's malicious acts, the plaintiff is entitled to recover the further sum of $3500.00 as punitive damages.

'Wherefore, this plaintiff prays that he be given judgment against the defendant in the sum of $4750.00 plus a reasonable allowance for his attorneys' fees.'

Appellant moved the court to make an order:

'1. Striking from plaintiff's petition Paragraph 4, page 1, the following 'for the purpose of writing fire insurance', for the reason it has no bearing on this present suit for collision damage, and is put in solely for bolstering up that part of the prayer for the recovery of attorneys' fees.

'2. Striking out from plaintiff's petition Paragraph 6, page 2, for the reason that it is not admissible as evidence and infers settlement negotiations.

'3. Requiring plaintiff to state what he has complied with, as alleged in [173 Kan. 55] Paragraph 7 of page 2 of plaintiff's petition, by setting out the specific acts, or, in the alternative, by striking said paragraph from said petition.

'4. Requiring the plaintiff to set out facts upon which the plaintiff alleges in Paragraph 7, page 2, of plaintiff's petition that defendant has willfully and wantonly refused to pay him, or in the alternative, to strike out said paragraph from plaintiff's petition.

'5. By striking out from page 2 of plaintiff's petition, paragraph 8, for the reason that said paragraph is a conclusion of law and not admissible as evidence, and no facts are set out in said pleading to support said allegation, and for the further reason, on the facts stated, punitive damages are not recoverable as a matter of law, or in the alternative, to require plaintiff to set out the facts supporting said allegations.

'6. Requiring plaintiff to state whether or not the defendant, or its agent, ever delivered a copy of the alleged endorsement to plaintiff, as set out in Paragraph 6, page 1, of plaintiff's petition.

'7. To strike from plaintiff's petition all the prayer except the sum of $1,250.00, and to strike the portion praying for allowance of attorneys' fees, for the reason that said attorneys' fees are not recoverable in collision cases as a matter of law.'

The motion was overruled in its entirety. Appellee contends a ruling on such motion is unappealable. The contention is too broad. A motion to make definite and certain or to strike rests in the sound judicial discretion of the trial court and is not appealable unless it affects a substantial right and in effect determines the action. Nelson v. Schippel, 143 Kan. 546, 56 P.2d 469; Gibson v. Bodley, 156 Kan. 338, 133 P.2d 112; Billups v. American Surety Co., 170 Kan. 666, 228 P.2d 731.

Although the foregoing is the ordinary rule there is another equally well established rule which cannot be ignored in ruling on a demurrer after a pleading has been attacked properly by motion. Where a petition is properly attacked, at least in part, as to some material portion by motion to make definite and certain and later by motion to strike the same indefinite features thereof, and both motions are successfully resisted by plaintiff, the rulings on such motion will be considered in connection with a subsequent order overruling a general demurrer. In ruling on such a demurrer the petition is subject to critical analysis and is strictly construed against the pleader. Gibson v. Bodley, supra, Syl. p2. The rule of strict construction, however, has no application...