Olsson v. Township

• Decision Date: 12 December 1914
• Docket Number: 19,042
• Citation: 144 P. 997,93 Kan. 440
• Parties: CHARLES E. OLSSON, Appellant, v. LAWRENCE TOWNSHIP, in Cloud County, and GRANT TOWNSHIP, in Republic County, Appellees
• Court: Kansas Supreme Court

144 P. 997

93 Kan. 440

CHARLES E. OLSSON, Appellant, v. LAWRENCE TOWNSHIP, in Cloud County, and GRANT TOWNSHIP, in Republic County, Appellees

No. 19,042

Supreme Court of Kansas

December 12, 1914

Decided July, 1914.

Appeal from Cloud district court; JOHN C. HOGIN, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

DEFECTIVE BRIDGE--Injury to Horse--Bill of Particulars--Opening Statement--Cause of Action Stated. A bill of particulars alleged, among other things, that a certain bridge on the line between two townships (which was also the county line) was of a span of over ten feet; that the highway had been kept open for public travel by the defendant townships, and that such bridge was with their knowledge and consent kept and allowed to remain without guardrails or protection of any kind on either side and in a dangerous and defective condition, without efficient timbers and stringers for support, and with loose and rotten planks in the floor, by reason whereof the plaintiff's horse was bruised and injured, causing its death. On appeal, in the opening statement plaintiff's counsel said, among other things, that the defects in the highway and bridge were sufficient neglect on the part of the township to cause them to respond in damages, and that plaintiff expected to show that the bridge was ten feet or more in length but with no guardrails as required by law and that the trustees of the townships were informed or had notice of such defect. Held, that an objection to testimony on the ground that the bill of particulars and opening statement failed to state a cause of action was erroneously sustained.

Homer Kennett, and Olin Hunter, both of Concordia, for the appellant.

A. L. Wilmoth, of Concordia, W. D. Vance, and R. E. McTaggart, both of Belleville, for the appellees.

OPINION

WEST, J.

This was an action to recover from two adjoining townships in two adjoining counties damages caused by a defective bridge on the road running between such municipalities. The bill of particulars alleged, in substance, that the highway was at all times therein mentioned open for travel, and kept open by such townships; that the bridge was kept, maintained and allowed to remain without guardrails or protection of any kind on either side, and in a dangerous and defective condition and without proper stringers and with loose and rotten planks, for more than one year, with the knowledge and consent of the townships. On appeal to the district court from a judgment rendered against the townships the plaintiff in his opening statement to the jury said, among other things, that it was expected to show that the injury was caused by reason of the defective highway and defects in the bridge which were sufficient neglect on the part of the townships to cause them to respond in damages, and that the trustees of the two townships were informed or had notice thereof. An objection to testimony on the ground that no cause of action was stated in the bill of particulars or shown by the opening statement was made and sustained, and judgment was rendered in favor of the defendants, and the plaintiff's request to amend by making each of the counties a party was denied.

Section 658 of the General Statutes of 1909 provides that recovery may be had from a county for damages when caused by a defective bridge constructed wholly or partly by such county, and in any other case such recovery may be had from the township. Section 659 requires the township trustees to have placed...