Pratt v. Barnard

• Decision Date: 09 December 1944
• Docket Number: 36211.
• Citation: 154 P.2d 133,159 Kan. 255
• Parties: PRATT v. BARNARD et al.
• Court: Kansas Supreme Court

154 P.2d 133

159 Kan. 255

PRATT v. BARNARD et al.

No. 36211.

Supreme Court of Kansas

December 9, 1944

Syllabus by the Court.

Where action is not brought upon a single and definite theory petition is demurrable as failing to state a cause of action.

On review of a judgment sustaining a demurrer to petition as not stating a cause of action because of confusion of theories if confusion of theories is not such as to preclude it appellate court must determine if possible from scope of petition a definite theory on which case is based and uphold such theory.

Nature of action is determined by recitals of fact found in pleading without regard to relief demanded, and action does not fail for lack of label or for a wrong label.

Petition predicated upon a series of acts of misconduct by defendants resulting in the taking, detaining, and injuring of personal property stated a cause of action sufficient to overcome demurrer which asserted a confusion of theories. Gen.St 1935, 60-705.

Where it appears from face of petition that cause of action is barred by limitations, petition does not state facts sufficient to constitute a cause of action. Gen. St.1935, 60-306(3), 60-705.

In regard to sufficiency of pleading, duress is equivalent of fraud and, if relied upon to interrupt running of statute of limitations on a cause of action which otherwise is barred, facts establishing such duress must be pleaded. Gen.St.1935, 60-306 (3), 60-705.

Where amended petition to recover for wrongful acts by defendants resulting in the taking, detaining, and injuring of personal property disclosed on its face that cause of action accrued more than two years prior to date on which pleading was filed, mere allegation that defendants' threats and duress continued up to time of filing of action was insufficient to establish that two-year limitation period was tolled, and demurrer to petition was properly sustained. Gen.St.1935, 60-306(3), 60-705.

1. When it appears from the face of a petition a cause of action is barred by the statute of limitations, such pleading does not state facts sufficient to constitute a cause of action.

2. From the standpoint of pleadings and their sufficiency duress is the equivalent of fraud and if relied upon to interrupt the running of the statute of limitations on a cause of action, which otherwise appears to be barred by its provisions, the facts which establish the tolling of the statute must be pleaded.

3. In a proceeding predicated upon wrongful action resulting in the taking, detaining and injuring of personal property, where an amended petition shows on its face that threats and duress upon which the cause of action was based accomplished their purpose and the cause of action accrued more than two years prior to the date such pleading was filed, the statute of limitations is not tolled by mere allegations that such threats and duress continued up to the date of the filing of the action.

Appeal from District Court, Butler County, Division No. 2; George J. Benson, Judge.

Action by Kelly Pratt against E. F. Barnard and others to recover damages caused by defendants' alleged unlawful and wrongful conduct. From a judgment for defendants after the sustaining of a demurrer, plaintiff appeals.which asserted a confusion of theories. Gen.St.1935, 60-705.

W. H. Coutts, Jr., of El Dorado, for appellant.

J. B. McKay, of El Dorado, for appellees.

PARKER Justice.

In an action to recover damages alleged to have been sustained by the plaintiff as a result of certain unlawful and wrongful conduct on the part of a number of persons named as defendants, one of them demurred to the petition and his demurrer was sustained. Plaintiff acquiesced in the ruling and amended the petition. The same defendant then demurred to the pleading as amended. This demurrer was sustained and plaintiff appeals.

Preliminary allegations of the petition as amended can be summarized as follows:

Prior to May 3, 1940, E. F. Barnard who was the owner of a 200-acre farm located in Cowley County entered into an oral contract with plaintiff whereby he leased such farm to plaintiff from August 1, 1940, to August 1, 1941, with the understanding the latter could enter into possession any time subsequent to May 2, 1940; plaintiff took possession on May 3, prepared the land for crop and in the spring of 1941 sowed and planted 70 acres of oats and 65 acres of row crops.

Specific allegations of misconduct to be found therein and on which plaintiff based his right to recover damages follow:

"That in the early spring of 1941, the exact date of which this plaintiff does not now have knowledge, these said defendants, Fred Lanterman, Mr. and Mrs. Fred Kirsteatter and M. L. Opperud entered into an unlawful combination for the purpose of ejecting, damaging, and injuring this said plaintiff, and thereafter made various and sundry threats against said plaintiff, both as to the person and property of said plaintiff, and thereafter did cause to be filed in the County Court of Butler County, Kansas, on the 5th day of May, 1941, a criminal complaint against said plaintiff, being Case No. 1239 in said court, this for the purpose of damaging said plaintiff, obtaining the possession of said crops and property, and otherwise injuring said plaintiff; that all of the defendants as named above did unlawfully enter into a conspiracy to obtain possession of said farm and said plaintiff's crops, and otherwise damage and injure said plaintiff, and the defendants have continued their threats, persecution, and duress up to the time of the filing of this action.

"That thereafter said defendants and all of them did come to said plaintiff's home, and there did threaten physical harm to said plaintiff and threaten to remove said plaintiff from said farm by physical violence in the event he did not peaceably, immediately leave; that said plaintiff was afraid for his life, and that acting upon the threats and under the duress of said defendants and each of them did on the 12th day of June, 1941, against his will and wish remove from said property and from his crops so planted and which were not yet ready for harvesting, and that said defendants did injure and damage said plaintiff in the following manner to-wit:

"1. Value of the possession of improvements of said property until $ 100.00

expiration of lease.

"2. Value of 70 acres of oats 168.00

"3. Value of 70 acres of oats straw 315.00

"4. Value of 65 acres of row crops 1170.00

"5. Damages on forced sale of 60 hogs 1500.00

all to a total damage of Three Thousand Two Hundred Fifty Three Dollars ($3253.00)."

The recital at length of the allegations of fact to be found in the petition with respect to acts of the defendants relied upon as the basis of his cause of action has been necessary in order to fully determine the issues raised by the appeal. The appellee's demurrer raised the question of misjoinder of causes of action and challenged the sufficiency of the amended petition on the ground it failed to state facts sufficient to constitute a cause of action.

Appellant states the only point raised in the trial court was whether such pleading stated a cause of action. While it appears that statement is a debatable one, we will, since it appears the appeal can be disposed of on that issue, confine our deliberations to it. We pause, however, to note that no allegation in the pleading charged Barnard, the owner of the land, with any act of misconduct relied upon for recovery, either expressly or by inference. In the absence of averments of that character the most that can be said for appellant's alleged cause of action against him is that the contract of tenancy as between him and appellant was breached and that the latter failed to remain upon the leased premises for the full term agreed upon. Without passing on the question we feel constrained to remark that under such conditions the appellee's contention there was a misjoinder is not without considerable merit. See, G.S.1935, 60-601; Benson v. Battey, 70 Kan. 288, 78 P. 844, 3 Ann.Cas. 283; Osborne v. Kington, 148 Kan. 314, 80 P.2d 1063; Burks v. Aldridge, 154 Kan. 731, 121 P.2d 276; Cole v. Thacker, 158 Kan. 242, 146 P.2d 665 and Sharp v. Cox, 158 Kan. 253, 254, 146 P.2d 410.

We turn now to the issue which, as heretofore indicated, we deem decisive.

A portion of appellee's argument is devoted to a discussion of the nature of the action. He insists the amended petition so interweaves and commingles allegations of criminal conspiracy, assault, false arrest, malicious prosecution, conversion and duress it is apparent it is not drawn upon a single and definite theory and, therefore, for that reason, is open to demurrer. It is true an action must be brought upon a single and definite theory (Grentner v. Fehrenschield, 64 Kan. 764, 68 P. 619; Sluss v. Brown-Crummer Inv. Co., 137 Kan. 847, 22 P.2d 965; Lofland v. Croman, 152 Kan. 312, 103 P.2d 772, and Sharp v. Cox, supra), or a petition is subject to demurrer as failing to state a cause of action. Nevertheless, if the confusion of theories is not of such character as to preclude it, it is the duty of the appellate court to determine if possible from the scope of a petition a definite theory on which the cause is based and uphold it. The nature of the action is to be determined by the recitals of fact to be found in the pleading without regard to the relief demanded and the action does not fail for lack of label nor for a wrong label. Parkhurst v. Investors Syndicate, 138 Kan. 7, 10, 23 P.2d 589.

With the principles of law to which we have just referred in mind we have carefully examined the amended petition. While a cursory glance at its allegations might on first blush give the impression the theory on which a...