Olsen v. Lambert

• Decision Date: 22 January 1944
• Docket Number: 36038.
• Citation: 158 Kan. 94,145 P.2d 159
• Parties: OLSEN v. LAMBERT et al.
• Court: Kansas Supreme Court

145 P.2d 159

158 Kan. 94

OLSEN v. LAMBERT et al.

No. 36038.

Supreme Court of Kansas

January 22, 1944

Syllabus by the Court.

In action for injuries suffered in collision with truck, wherein petition plainly alleged that truck driver was defendant's agent, and unverified answer contained only general denial, specific denial of negligence, and charge of contributory negligence, plaintiff who filed no reply was not bound to establish driver's agency and authority by evidence. Gen.St.1935, 60-729.

Failure to verify answer denying allegations of agency was not cured by plaintiff's elicitation of testimony concerning agency, which was immaterial under the issues raised by the pleadings.

In absence of waiver or other action serving the purpose of a verified answer, failure to deny allegations of agency under oath admits the agency to the extent that such allegations are well pleaded and relieves the party asserting agency from establishing it by affirmative evidence. Gen. St.1935 60-729.

Error in admitting evidence to show truck driver's agency for defendant, which disclosed that defendant had insurance, was not prejudicial where driver's agency was admitted because of failure to verify answer and jury would have been required to determine the issue of agency in plaintiff's favor even in absence of evidence.

An appellant must show error of trial court to his prejudice before judgment will be reversed.

In action in county where collision with truck occurred, based upon negligent operation of a truck insured under statute and owned by nonresident, filing of an answer containing general and specific denials of negligence and alleging that collision was caused by plaintiff's negligence constituted a "general appearance" and a submission by all defendants so answering to the court's jurisdiction. Gen.St.1935, 60-729.

In action in county where collision occurred against nonresident owner of truck and insurer, when insurer ceased to be a party, jurisdiction over truck owner depended upon whether truck owner had waived jurisdiction and was to be determined as though insurer had not been joined as a defendant in the first instance, and hence court did not lose jurisdiction of truck owner who had answered to the merits when insurer's demurrer was sustained. Gen.St.1935, 40-218, 60-509.

The mere fact that venue of a transitory action may be fixed by statute in county where defendant resides or may be summoned does not mean that trial of such action is limited to district court of that county, or that the action may not be maintained in any other district court, but merely that venue is so fixed if defendant objects to any other and has not waived the right to object. Gen.St.1935, 60-509.

1. In the absence of a waiver, or some other action which subserves the purpose of a verified answer, the failure to deny allegations of agency by the affidavit of a party, his agent or attorney, admits the agency to the extent such allegations are well pleaded and relieves the party asserting such agency from establishing its existence by affirmative evidence.

2. On consideration of objections to the admission of evidence, the appellant must show error of the trial court to his prejudice before the judgment will be reversed.

3. In an action for damages instituted in the district court of the county wherein an accident occurred and predicated upon the negligent operation of a motor transport truck insured as provided for by statute and owned by a non-resident of such county, the filing of an answer, consisting of general and specific denials of negligence and an allegation the collision was caused by the negligence of the plaintiff constitutes a general appearance in such action and a submission by all defendants so answering to jurisdiction of the court.

4. If in the action described in the preceding paragraph the insurance company ceases to be a party defendant, the question of jurisdiction as to the remaining defendant, the owner of the truck, depends upon whether such defendant has waived jurisdiction and is to be determined in the same manner as though such insurance company had not been joined as a defendant in the first instance.

Appeal from District Court, Allen County; Wallace H. Anderson Judge.

Action by Ole Olsen against Ed Lambert and others for damages resulting from collision between motor vehicles. From an adverse judgment, the named defendant appeals.

Guy Lamer, of Iola, for appellant.

Kenneth H. Foust, of Iola, for appellee.

PARKER Justice.

This action was instituted to recover damages alleged to have resulted from a collision between two motor vehicles on a Neosho river bridge near the city of Iola.

Pertinent allegations of the amended petition, omitting formal portions thereof, follow: Plaintiff is a resident of Allen County Kansas, defendant, the National Mutual Casualty Company of Tulsa, is an Oklahoma corporation authorized to do business in Kansas, and defendants Ed Lambert and Grant Murray are residents of Hutchinson, Kansas; on the morning of September 7, 1942, the plaintiff, who was the owner of a Ford V8 automobile, was driving in an easterly direction at a speed of approximately 20 miles per hour on a highway leading into the city of Iola, Kansas; when plaintiff reached the center of a bridge crossing the Neosho river on such highway, Murray who was driving a 1938 Diamond "T" tractor with trailer attached, and who was also proceeding east on such highway, attempted to pass plaintiff on such bridge and negligently turned his vehicle to the south and into the north side of plaintiff's automobile with the result plaintiff's car was forced into the south cement railing of the bridge and completely wrecked; at the time Murray was an agent for and in the employ of defendant Lambert and was working for him and operating in his regular line of business under a permit granted by the State of Kansas; both Lambert and Murray were insured by the National Mutual Casualty Company of Tulsa, Oklahoma, against any loss or damage caused by either of them as a result of the collision.

The record discloses that no service of summons was had upon Murray and his status as a defendant is of no consequence in determining the rights of any of the parties. It fails to disclose how service was obtained upon the defendants Lambert and the insurance company, but it does appear that without the entering of a special appearance, the filing of a motion to quash service, or in any other manner raising the question of whether the court had jurisdiction of the person of such defendants, they filed a joint answer wherein each of them denied generally the allegations of the petition and specifically denied "they were guilty of any negligence on the 7th day of September, 1942, which resulted in any damage to said plaintiff's automobile", and alleged such damages, if any, resulted from the negligence of the plaintiff. The answer filed by defendants was not verified and it contained no allegation or claim the defendants could not properly be sued in the county wherein the plaintiff had instituted his action.

On the issues raised by the amended petition and the answer the case came on for trial to a jury.

The defendants each demurred to the evidence adduced by plaintiff whereupon the trial court sustained the demurrer of defendant insurance company and overruled the demurrer of defendant Lambert. From this point in the proceedings Lambert alone remained as a defendant and he will hereinafter, in the interest of brevity, be referred to as "the defendant".

After his demurrer had been overruled defendant, who did not personally appear at the trial or testify as a witness, offered his evidence. That evidence was limited solely by him to proof of the value of plaintiff's automobile on the date of the collision and no testimony of any character was offered to refute other allegations of fact contained in the petition or evidence adduced by plaintiff in support thereof. The jury returned a general verdict for plaintiff. Defendant filed a motion for a new trial, and later, but before such motion was passed upon by the trial court, a motion in arrest of judgment and for a directed verdict. Thereafter, both motions were overruled. Judgment was then entered on the general verdict from which judgment defendant appeals.

Without detailing the grounds relied upon by appellant on his demurrer to the evidence, his motion in arrest of judgment and for a directed verdict non obstante veredicto, his motion for new trial or his specification of errors, it can be stated the principal questions urged by him on this appeal are, (1) there was no competent evidence submitted on behalf of appellee in proof of the fact the truck driver was the employee and agent of appellant or acting in the scope of his employment and that irrespective of the general verdict the trial court was required to set it aside and render judgment in favor of appellant, and (2) the trial court, under existing facts and circumstances, had no jurisdiction of the person of appellant or jurisdiction to render judgment against him in Allen County, Kansas.

Appellant did not attempt to refute the evidence offered by appellee with respect to the negligence of the driver of the truck and makes no claim here that such negligence was not the proximate cause of the collision. Nor does he contend there was insufficient evidence to justify the jury in fixing the value of the appellee's automobile at the amount stated in the verdict. It follows that if the conditions disclosed by the record did not require agency and authority of the truck driver to be established by evidence in order to support the judgment rendered by the trial court, appellant's first contention cannot be sustained.

He...