Partch v. Hubele
| Decision Date | 08 April 1961 |
| Docket Number | No. 42111,42111 |
| Citation | 360 P.2d 1104,188 Kan. 86 |
| Parties | Leo R. PARTCH, Appellant, v. Emil HUBELE, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
The petition in a personal injury action seeking punitive damages examined, and held the petition failed to allege facts sufficient to constitute wanton negligence and the trial court did not err in sustaining the demurrer thereto.
Jack O. Bowker, McPherson, argued the cause, and L. H. Ruppenthal, McPherson, was with him on the briefs for appellant.
Archie T. MacDonald, McPherson, argued the cause and was on the briefs for appellee.
Leo R. Partch, plaintiff (appellant), brought this action against Emil Hubele, defendant (appellee), for the recovery of actual and punitive damages for personal injury and property damage sustained by him as a result of the alleged negligence of defendant in the operation of his truck. The petition contained two causes of action; the first set forth the facts relied on as a basis for a recovery of actual damages and the second set forth the facts relied on as grounds for recovery of punitive damages. From an order of the trial court sustaining defendant's demurrer to plaintiff's second cause of action, plaintiff appeals.
It appears, from a perusal of plaintiff's second cause of action, that the accident happened in the daylight; that as plaintiff was driving his automobile north on a blacktop road he approached the rear of a farm truck driven by defendant at a speed of about thirty miles an hour, approximately 300 feet from an intersection of a township road. Plaintiff pulled a few feet to the left of the center, intending to pass, and when he was approximately sixty feet to the rear of the truck, it started angling to the left. Plaintiff returned to the right side of the road, applying his brakes and reducing his speed to that of the truck when about twenty feet behind it. Defendant's truck continued angling to the left until it was left of the center of the road, then slowed abruptly about twenty feet from the mentioned intersection. Plaintiff immediately applied his brakes, and suddenly, without warning, the truck turned sharply to the right. Plaintiff then turned his automobile to the right and came to an immediate stop. Thereupon, the right front corner of the truck bed struck plaintiff's automobile, driving it into a concrete culvert railing east of the north-south highway on a side road.
Plaintiff further alleged that defendant willfully drove his truck upon the highway with the stock rack thereon so constructed as to afford him no opportunity to see or signal, either directly or by the use of a mechanical device, oncoming traffic from the rear; that plaintiff sounded his horn to warn defendant of his presence when 360 feet from the intersection and sixty feet to the rear of defendant's truck, and when about ten feet from the intersection and to the rear and on the right of defendant's truck; that defendant should be deemed to have realized the imminence of danger to plaintiff in making a right turn from the left lane of traffic directly in front of plaintiff's vehicle, and that by reason thereof defendant was guilty of wanton negligence.
Defendant apparently concedes that the alleged facts were sufficient to constitute a...
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Kirkendoll v. Neustrom, 8753
...has said, "One cannot be held guilty of wanton conduct if the conduct occurs before the peril is discovered." Partch v. Hubele, 188 Kan. 86, 360 P.2d 1104, 1106 (Kan.1961). The pleadings, the evidence and the offers contained in the transcript disclose that appellee knew nothing of appellan......
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