Reed v. Mai

• Citation: 231 P.2d 227,171 Kan. 169
• Decision Date: 12 May 1951
• Docket Number: No. 38278,38278
• Parties: REED v. MAI.
• Court: United States State Supreme Court of Kansas

Page 227

231 P.2d 227

171 Kan. 169

REED v. MAI.

No. 38278.

Supreme Court of Kansas.

May 12, 1951.

Syllabus by the Court

1. Motions to strike and to make more definite and certain rest in the sound discretion of the trial court and rulings thereon are not appealable unless they affect a substantial right and in effect determine the action.

2. Concurrent negligent acts of two or more parties render them liable as joint tortfeasors.

3. Where a third person sustains indivisible injuries in a motor vehicle collision as a result of negligence on the part of the drivers of two other motor vehicles, which is so related and interwoven in point of time and place that it appears the injuries would not have been received by the third person except for the successive and combined negligence of the others, those whose negligent acts so united in producing the injuries are jointly and severally liable to the injured party and may be sued separately or jointly at his election.

4. The record in an action to recover damages for injuries received by a third person in a three way automobile collision examined, and it is held: (1) Action of the trial court in overruling motions to strike certain allegations from the petition and to make others more definite and certain, reviewed for purposes essential to appellate review of an order overruling a demurrer to the petition, did not result in prejudice to the substantial rights of the appealing defendant or have the effect of determining the action, and hence are not appealable orders; (2) allegations of the petition, as fully set forth in the opinion, charge such defendant with acts of negligence which, when accepted as true for purposes of ruling on a demurrer to the petition, are sufficient to subject him to joint and several liability as a negligent tortfeasor; and (3) the trial court properly overruled such defendant's demurrer, based on grounds the petition failed to state a cause of action and disclosed a misjoinder of causes of action.

Jerry E. Driscoll, of Russell, argued the cause, and Richard M. Driscoll, of Russell, was with him on the briefs for appellant.

L. M. Cornish, Jr., of Topeka, argued the cause, and Ralph F. Glenn, of Topeka, was with him on the briefs for appellee.

PARKER, Justice.

This was an action to recover damages for wrongful death, alleged to have been caused by the negligence of two defendants, in a three way automobile accident. The appeal is by one of the defendants from an order of the trial court overruling his demurrer to the plaintiff's petition.

The defendants in the action are Harold D. Plackett and Richard L. Mai. We are told, and it is not denied, that Plackett's demurrer to the petition on the ground it failed to state a cause of action, based on his negligence, was overruled by the trial court and that he took no appeal from that ruling. Therefore, in this opinion we shall treat the petition as stating a cause of action against him. Even so in order to have a proper understanding of the issues involved on Mai's appeal it will be necessary to relate certain allegations of the petition pertaining to Plackett.

In substance, with respect to the matters having equal application to all parties to the action, preliminary allegations of the petition are as follows:

Plaintiff is the widow of Sherman W. Reed, Jr., who died on December 3, 1949, at the age of 46 years. Early in the evening on that date decedent was driving his automobile in a westerly direction on U. S. Highway No. 24, in a careful and prudent manner at a rate of speed of forty miles per hour, near what is known as 'Big Muddy Creek Bridge.' As he approached such bridge, defendant Plackett, who was also driving an automobile upon such highway in an easterly direction, carelessly and negligently drove his automobile down the center of such highway from the west at a high rate of speed, in excess of more than fifty miles per hour, and proceeded in that manner onto and across such bridge, with lights brightly burning, directly toward the automobile driven by the decedent Reed. The acts of such defendant placed Reed in a position of sudded danger and peril as he was about to enter upon the bridge with the result that in an effort to avoid being struck by Plackett's automobile he pulled his automobile to the right and attempted to stop as he was entering onto the bridge but was unable to do so before he struck the east abutment of such bridge. As he did so his automobile was struck on the left rear side by Plackett's automobile with such force that it was knocked or swung around and back down the highway about thirty-seven and one-half feet in an easterly direction. The force of this collision caused Reed to be thrown from his automobile onto the pavement on U. S. Highway No. 24 injuring him and causing him to lie on such pavement in an unconscious and prostrate condition.

So far as particular acts of negligence relied on by plaintiff as grounds for recovery against the defendant Mai are concerned the petition reads as follows: 'At the same time said defendant Richard L. Mai, was driving his 1949 Plymouth Club Coupe carelessly and negligently in an easterly direction on said U. S. Highway No. 24 at a distance of approximately 200 feet behind the automobile of said defendant, Harold D. Plackett, and at a high rate of speed of more than 50 miles per hour, which was greater than was reasonable and proper under the circumstances, while approaching said bridge at night with other traffic thereon. Said defendant, Richard L. Mai, saw the body of said Sherman W. Reed, Jr., lying on the pavement as aforesaid, and, without turning his said automobile either to the right or left of said body, although there was ample time and space to do so, said defendant, Richard L. Mai carelessly and negligently drove his said automobile directly over the body of the said Sherman W. Reed, Jr., when he could have avoided the same, thereby causing further and additional injuries to the said Sherman W. Reed, Jr., the exact nature of which are not known at this time to this plaintiff, and therefore cannot be set forth in detail herein. Plaintiff is informed and therefore alleges the fact to be that said defendant, Richard L. Mai, had other passengers with him at the time, and that he was talking and laughing with his passengers, and was not closely watching his said automobile or the highway upon which he was driving.'

Following the foregoing allegations the petition goes on to state that Reed received a broken neck and a fractured skull, in addition to other injuries in the collision, all of which contributed to and caused his death shortly thereafter. It then states:

'The negligence of said defendant, Harold D. Plackett, in carelessly and negligently driving his said automobile down the center of said highway and onto said bridge with his bright lights burning, and directly toward the automobile of the said Sherman W. Reed, Jr., and at a greater rate of speed than was reasonable and proper under the circumstances, and the negligence of said defendant, Richard L. Mai, in carelessly and negligently driving his said automobile along said highway at a rate of speed greater than was reasonable and proper under the circumstances, and in failing to turn either to the right or to the left of said Sherman W. Reed, Jr., in order to miss the said Sherman W. Reed, Jr., while he was lying on the pavement as aforesaid, were joint and concurrent and were the proximate causes of the injuries to the said Sherman W. Reed, Jr., which resulted in his death.'

Concluding allegations of the petition, with which we are not concerned on a review of the ruling on the demurrer, include averments respecting Reed's family status and a prayer for damages in the maximum amount permitted by our statute, G.S.1949, 60-3203, in cases where the death of one person is caused by the wrongful act or omission of another.

Motions by the appealing defendant to make the foregoing petition more definite and certain and to strike certain allegations therefrom, portions of which will be presently referred to in more detail, were overruled by the trial court in their entirety. Thereupon, defendant demurred to the petition on grounds, among others not here material, that it failed to state facts sufficient to constitute a cause of action and disclosed a misjoinder of causes of action. When this demurrer was overruled defendant Mai, hereinafter referred to as appellant, perfected the instant appeal.

In his specifications of error the appellant contends the district court erred: (1) In overruling his motion to require appellee to make her petition more specific, definite and certain; (2) in overruling his motion to strike; and (3) in...