Rexroad v. Kansas Power & Light Co.

• Decision Date: 25 January 1964
• Docket Number: No. 43326,43326
• Citation: 192 Kan. 343,388 P.2d 832
• Parties: L. W. REXROAD and Jay M. Rexroad, d/b/a L. W. Rexroad and Son, Appellees and Cross Appellants, v. The KANSAS POWER AND LIGHT COMPANY, a Corporation, Appellant and Cross Appellee.
• Court: Kansas Supreme Court

Page 832

388 P.2d 832

192 Kan. 343

L. W. REXROAD and Jay M. Rexroad, d/b/a L. W. Rexroad and Son, Appellees and Cross Appellants, v. The KANSAS POWER AND LIGHT COMPANY, a Corporation, Appellant and Cross Appellee.

No. 43326.

Supreme Court of Kansas.

Jan. 25, 1964.

Syllabus by the Court

1. Rexroad entered into a street improvement contract with the city of Assaria. In the process of construction Anderson's home was destroyed when Rexroad's bulldozer struck a high pressure gas line of KPL buried in the city's street. The explosion and fire also destroyed Rexroad's bulldozer. Anderson, a third party beneficiary under Rexroad's contract with the city, brought an action sounding in contract against Rexroad for recovery of damages to Anderson's home which culminated in a judgment against Rexroad. Prior to the recovery of such judgment Rexroad brought a negligence action against KPL for loss of Rexroad's bulldozer, and subsequent to such judgment Rexroad was permitted by the trial court to file an amended and supplemental petition, alleging as an additional claim against KPL the amount of Anderson's judgment which Rexroad paid, it being further alleged that Rexroad's additional damage was proximately caused by KPL's negligence. Upon trial to a jury KPL was found negligent and a verdict was returned in Rexroad's favor for less than the amount of Anderson's judgment against Rexroad. Upon facts more particularly set forth in the opinion it is held on appeal: The trial court (a) did not err in permitting Rexroad to file an amended and supplemental petition; (b) did not err in refusing to strike allegations of the additional claim of Rexroad from the amended and supplemental petition, or in failing to sustain a demurrer thereto; (c) erred in its pretrial order denying Rexroad the right to show the full amount of Anderson's judgment and costs paid by Rexroad; (d) did not err in failing to render judgment in favor of KPL notwithstanding the general verdict; (e) erred in failing to strike all reference to Rexroad's insurance coverage from the answer of KPL in the pleadings; (f) did not err in granting Rexroad a new trial on the issue of damages only, the issues of negligence and damages being separable; and (g) did not err in denying Rexroad's motion for judgment in the amount of $15,450 notwithstanding the verdict, there being a controversy between the parties as to the amount of recovery.

2. Upon compliance with the terms of G.S.1949, 60-764, and pursuant thereto, the plaintiff in a negligence action is entitled to file a supplemental petition alleging facts material to the case, occurring after the former petition, setting forth an additional claim, all as more particularly set forth in the opinion.

3. The doctrine of subrogation may be invoked in favor of persons who are legally obligated to make good a loss caused by the negligence or tortious acts of another.

4. On the facts stated in Syllabus p1, where a contractor by virtue of a street improvement contract with a city is compelled to pay a judgment to a third party beneficiary whose home was destroyed on account of the negligence of another, the statute of limitations does not begin to run on the contractor's additional claim until the date of the payment of the judgment.

5. On the facts stated in Syllabus p1, invoking the rule in Syllabus p3, where a contractor by virtue of a street improvement contract with a city is compelled to pay a judgment to a third party beneficiary whose home was destroyed on account of the negligence of another, the contractor seeking recovery from the negligent party is not entitled to expenses and attorneys' fees occasioned by reason of litigation in the contract action, but is limited to the amount of the judgment and costs.

6. Appellate review is limited to the issues and questions presented to the trial court, and the Supreme Court will not arbitrarily determine issues raised for the first time on appeal.

7. Where the defendant in a negligence action alleges in its answer that the plaintiff has been fully compensated by insurance for his loss, and the plaintiff upon sufficient evidence shows to the trial court that he has not been fully compensated, and moves the trial court to strike the allegations of insurance from the defendant's answer, it is held error for the trial court to fail to strike the issue of insurance from the answer. Once it has been shown that the plaintiff is a real party in interest, the defendant has no further right to bring insurance into the case.

William B. McElhenny, Topeka, argued the cause, Robert L. Webb, Ralph W. Oman, Philip E. Buzick, James D. Waugh, James L. Grimes, Jr. and Donald J. Horttor, Topeka, and E. S. Hampton, H. H. Dunham, Jr., John Q. Royce, Howard Engleman and C. Stanley Nelson, Salina, with him on the brief, for appellant and cross appellee.

Thomas M. Lillard; Jr., Salina, argued the cause, C. L. Clark, James P. Mize and James T. Graves, Salina, with him on the brief, for appellees and cross appellants.

SCHROEDER, Justice.

This is a negligence action arising out of a fire started when the plaintiffs' bulldozer severed a high pressure gas transmission line connection of the Kansas Power and Light Company (defendant-appellant-cross appellee) while doing certain street improvement work in the city of Assaria, Kansas. The bulldozer was a total loss as a result of the fire and a nearby house and its contents were consumed. Plaintiffs seek to recover for the bulldozer and for amounts which they were adjudged liable to pay in connection with the loss of the house and contents. The defendant cross-claimed for loss of a gas town border station and equipment and a quantity of natural gas.

The case was tried to a jury which returned a verdict for less than half the sum sought. The trial court granted a motion for a new trial on the question of damages only. Appeal has been duly perfected by each of the parties from various orders of the trial court presenting the issues hereinafter discussed.

On the 31st day of August, 1951, L. W. Rexroad and Jay M. Rexroad, d/b/a L. W. Rexroad and Son (plaintiffs-appellees-cross appellants), hereafter referred to as Rexroad, entered into a written street improvement contract with the city of Assaria, Kansas. The Contract called for the grading, curbing and guttering of certain streets in the city. Work under the contract was commenced on or about October 1, 1951. At about this same time L. W. Rexroad went to the Salina office of the Kansas Power and Light Company and there obtained a sketch map showing the general location of its gas transmission and distribution lines within the city of Assaria. The Kansas Power and Light Company had a franchise to serve gas within the city of Assaria and had transmission lines running through the city in addition to its distribution system. The map was not complete in that it did not show dimensions, depths or many other details. Rexroad did not rely on the map and the jury so found.

The Kansas Power and Light Company's high pressure transmission lines were located in or near Railroad Avenue, a northsouth street on the eastern edge of the city. It had a 6-inch gas transmission line running north and south along the eastern edge of Railroad Avenue, being between the edge of the street and the railroad right of way adjacent on the east. The Kansas Power and Light Company also had an 8-inch gas transmission line running north and south approximately in the center of Railroad Avenue. These two transmission lines were installed in 1928. There were connections or taps running from each of these transmission lines into a gas town border station on the west curbing of Railroad Avenue in the block in which the accident occurred. This town border station was the point from which gas service was provided to the town. From there the gas was piped to the low pressure distribution system in the town.

The map showed a 2-inch connection from the high pressure 6-inch main to the gas border station on Railroad Avenue, but no such connection was shown on the 8-inch high pressure gas main. It was this undisclosed 2-inch connection from the 8-inch high pressure gas main that was struck by the bulldozer of Rexroad on February 2, 1952, causing all the damage involved in this case.

The portion of the line struck by the bulldozer was a 2-inch pipe rising vertically 13 inches from the top of the 8-inch main and then back in a 'U' shape to the level of the 8-inch pipe and then turning in a southwesterly direction to a connection in the town border station. The loop as just described had threaded fittings to compensate for expansion and contraction of the line. The 13-inch riser would have extended 2 inches above the top of the valley gutter to be constructed by Rexroad at that point. This valley gutter was clearly shown on the plans previously left with the office of the Kansas Power and Light Company so that such hazards could be called to the attention of Rexroad, but the riser and the 2-inch connecting pipe were not shown on the map.

A 6-inch high pressure main was known to be adequate to serve a town the size of Assaria.

The construction crew of the Kansas Power and Light Company was asked to and did lower the 6-inch high pressure line at the request of the resident engineer of the city, James A. Newberry, because it was in the area where Rexroad was to construct a catch basin to catch the water from the valley gutter under which the 2-inch pipe was later found to rise 13 inches from the 8-inch high pressure line. Other changes were requested but no request for alteration or change was made concerning the 8-inch line, it being thought the 8-inch line was far enough out in the street to avoid interference. Upon completion of the work by the Kansas Power and Light Company's employees, its foreman told the employees of Rexroad the area had been cleared so that work could safely proceed. No disclosure was ever made of the...