Price v. Holmes

• Decision Date: 21 January 1967
• Docket Number: No. 44601,44601
• Citation: 198 Kan. 100,422 P.2d 976
• Parties: Von F. PRICE, Administrator of the Estate of Lillian Price, also known as Lillian W. Price, also known as Lillian M. Price, Deceased, Appellant, v. Harold B. HOLMES, Appellee.
• Court: Kansas Supreme Court

Page 976

422 P.2d 976

198 Kan. 100

Von F. PRICE, Administrator of the Estate of Lillian Price,

also known as Lillian W. Price, also known as

Lillian M. Price, Deceased, Appellant, v. Harold B. HOLMES, Appellee.

No. 44601.

Supreme Court of Kansas.

Jan. 21, 1967.

Syllabus by the Court

1. As against a motion for summary judgment filed pursuant to K.S.A. 60-256, a pleading is to be liberally construed in favor of the party against whom the motion is directed.

2. It is permissible for a pleader to allege a cause of action in the alternative, provided the alternatives alleged are not repugnant.

3. Under the facts appearing of record, the cause of action alleged to be in tort accrued, not when the alleged tortious act was committed, but on the date actual damages resulted therefrom.

4. A cause of action in tort does not survive in favor of the personal representative of a deceased person unless the same has accrued to the decedent during his lifetime.

5. A cause of action for breach of an implied warranty accrues at the time of the breach.

6. At common law, and in this state, a cause of action sounding in contract survives the death of either party where the breach thereof results in loss of or injury to a property right.

7. Under circumstances related in the opinion, the applicable statute of limitations was tolled, so far as the alleged cause of action for breach of implied warranty is concerned, by the pendency of proceedings contesting the validity of the testator's will.

8. The record is examined in an action seeking to recover damages allegedly resulting from the defendant's failure to supervise and direct the execution of a testator's will in accordance with legal requirements, and it is held that the trial court erred in sustaining a motion for summary judgment on the grounds contained in said motion.

Robert A. Schermerhorn, Junction City, argued the cause, and William D. Clement, Junction City, was with him on the brief, for appellant.

Richard D. Rogers and Donn J. Everett, Manhattan, argued the cause, and Charles S. Arthur, Manhattan, was with him on the brief, for appellee.

FONTRON, Justice.

This is an action to recover damages sustained by the plaintiff's decedent, Lillian Price, which allegedly resulted from the faulty execution of a will. The trial court sustained the defendant's motion for summary judgment and the plaintiff has appealed. We shall refer to the parties as plaintiff, on the one hand, and as defendant, or Holmes, on the other.

The facts which give rise to this rather bizarre lawsuit are these: On November 16, 1960, Henry H. Weber, who was a very sick man, drove to The Riley State Bank and asked the banker, Harold B. Holmes, who is the defendant in this action, to prepare a will leaving one-half of his estate to his wife and the other one-half to his niece, Lillian Price. In response to Weber's instructions, the banker drafted a will which Weber signed and two witnesses attested. Five days later, on November 21, 1960, Mr. Weber died.

Weber's will was offered for probate on November 26, 1960, and was contested by his widow on the ground that it had not been legally executed, i. e., that it had not been executed in the presence of the attesting witnesses, nor attested by the witnesses in Weber's presence. Both the Probate Court and the District Court of Riley County found that Weber's will had been duly executed and attested and should be admitted to probate. The district court's judgment to such effect was then appealed to this court.

On November 25, 1963, while the appeal was still pending, Lillian Price died. Twelve days later, on December 7, 1963, this court reversed the Riley County District Court and held the Weber will to be void. Our opinion in that case is reported in In re Estate of Weber, 192 Kan. 258, 387 P.2d 165.

Von T. Price was appointed administrator of Lillian Price's estate on February 3, 1964, and filed his petition in this case on June 4, 1965. Omitting formal parts, the petition alleges in substance that the defendant, Holmes, a banker and owner of a funeral home, represented to the public and to Weber that he was qualified and possessed sufficient knowledge, training and ability to draft and supervise the execution of Weber's will so that Weber's property would pass according to his desire when, in fact, he (Holmes) was not qualified and did not have the requisite knowledge, training and experience to draw, direct or supervise the execution of the will; that Holmes, using Weber's instructions, but without warning Weber of his limited ability, did prepare a will dated November 16, 1960, and supervised its execution; that Weber died on November 21, 1960, and his will was filed and admitted to probate in the Probate Court of Riley County, Kansas, November 26, 1960; that an appeal was taken to the District Court of Riley County, which also entered an order admitting the will to probate; but that the Kansas Supreme Court ordered that the judgment admitting the will to probate be set aside, which holding has not been reversed or modified.

The petition further alleged that Holmes failed to have the will properly executed according to the laws of Kansas, contrary to his oral agreement with Weber; that Holmes negligently supervised and directed the execution of the will and failed to exercise the degree of care required; and that, if the will had been executed according to the laws of this state, Lillian Price would have received property approximating $58,611 (being half the value of Weber's estate). Judgment is asked in such amount and an additional $20,000 is sought for punitive damages.

To the petition, Holmes filed a motion for summary judgment on three grounds: (1) That plaintiff's cause of action did not survive under G.S. 1949, 60-3201; (2) that the statute of limitations had run on plaintiff's cause of action under G.S.1949, 60-306; and (3) that plaintiff was estopped to maintain this action by reason of his decedent having joined and consented to the former will contest action. After a hearing, the district court sustained the defendant's motion on all three grounds, and entered judgment accordingly. This appeal followed.

It will be helpful, at the start of our discussion, to recapitulate the dates of importance:

'11-16-60 Will Drafted and Executed.

'11-21-60 Weber Died.

'11-26-60 Will Offered for Probate by Ben Heer.

'11-25-63 Lillian Price Died.

12-7-63 Judgment Admitting Will to Probate Reversed by Supreme Court.

'2-3-64 Administrator of Lillian Price Estate Appointed.

'6-4-65 Administrator Filed Petition.

'6-5-65 Holmes Summoned.'

The sufficiency of the plaintiff's petition to allege a cause of action was not put in issue by the defendant's motion for summary judgment nor is it raised in this appeal. Accordingly, we shall assume, for purposes of this opinion, that the petition is sufficient to allege a valid cause of action, and we will be called to determine what the cause, or causes, of action may be.

Three points are raised by plaintiff on this appeal: (1) That his cause of action is not barred by the statute of limitations; (2) that the cause of action survived the death of Lillian Price; and (3) that he is not estopped to maintain this action. We proceed to his first point.

The plaintiff maintains that whether his cause of action sounds in implied contract, or in tort, or in fraud, it accured either when the will was drafted and faultily executed on November 16, 1960, or when Mr. Weber died on November 21, 1960, or when the will was offered for probate on November 26, 1960.

To us, it seems clear that the plaintiff has endeavored to allege his cause of action in the alternative, the first sounding in contract for breach of implied warranty and the second sounding in tort on the ground of negligence. Plaintiff's counsel has also asserted that his client has a further cause of action for fraud but we have been wholly unable to find this theory expressed in the petition. Fraud is not alleged, even by remote implication, and we shall expend no further time or effort in pondering this claim.

As against a motion for summary judgment, filed under K.S.A. 60-256, pleadings are entitled to be liberally construed in favor of the party against whom the motion is directed (Gard, Kansas Code of Civil Procedure, annotated, p. 259). See, also, Carpenter v. Strimple, 190 Kan. 33, 372 P.2d 571, and Grisamore, Administratrix v. Atchison, T. & S. F. Ry. Co., 195 Kan. 16, 23, 403 P.2d 93, stating a similar rule when a demurrer (an archaic term) has been directed against a pleading. We therefore proceed on the assumption that the petition before us, given a liberal interpretation, contains two causes of action: one, ex contractu; the other, ex delicto.

We pause here to note that we have held it permissible for a pleader to allege a cause of action in the alternative provided the alternatives are not repugnant (McCoy v. Wesley Hospital & Nurse Training School, 188 Kan. 325, 337, 362 P.2d 841), it being elementary, of course, that the pleader will be limited to but a single recovery. Our decisions have also upheld the right of a plaintiff to plead twin causes of action arising out of a single transaction, the one sounding in tort and the other being in contract for breach of implied warranty. (Nichols v. Nold, 174 Kan. 613, 258 P.2d 317, 38 A.L.R.2d 887; McCoy v. Wesley Hospital & Nurse Training School, supra.)

If either the cause of action sounding in tort or the cause of action sounding in contract survived the death of Lillian Price and, in addition, was not barred by the statute of limitations, then the defendant's motion for summary judgment should have been overruled. In Crabb v. Swindler, Administratrix, 184 Kan. 501, 337 P.2d 986, this court was called upon to construe a petition in an action seeking to recover damages resulting from faulty plumbing installation, where damage had not occurred until after the death of the plumbing...