Roddy v. Hill Packing Co.

• Decision Date: 08 May 1943
• Docket Number: 35670.
• Citation: 137 P.2d 215,156 Kan. 706
• Parties: RODDY v. HILL PACKING CO.
• Court: Kansas Supreme Court

137 P.2d 215

156 Kan. 706

RODDY v. HILL PACKING CO.

No. 35670.

Supreme Court of Kansas

May 8, 1943

Rehearing Denied June 19, 1943.

Syllabus by the Court.

An order overruling a demurrer is an "appealable order".

Where defendant's demurrer to evidence was first sustained and then, on plaintiff's motion for new trial, order sustaining demurrer was set aside and a new trial granted such action was considered on appeal as tantamount to overruling of demurrer.

Courts in ruling on demurrer to evidence, never weigh evidence or compare contradictory testimony, but accept all evidence as true and consider only such portions as are favorable to party adducing it.

One who agreed to transport corporation's property for consideration by motor vehicle from point in Kansas to destination in Colorado, under terms of contract which required him to own, operate, and have full control of motorized equipment and drivers thereof, to pay all operation expenses and furnish his own liability insurance and Kansas state license tax, and which required corporation to furnish and pay for all other necessary permits, licenses, and mileage fees, was a "contract motor carrier of property" for hire within meaning of statute and required to have contract carrier's license. Gen.St 1935, 66-1,108(g), 66-1,111, 66-1,112a, 66-1,115, 66-1,130.

Contract obligating parties or either of them to violate penal statute is unenforceable, and breach of contract is "damnum absque injuria", that is, a matter for which the law provides no redress.

Where statute expressly provides that violation thereof shall be a misdemeanor, contract in direct violation of statute is illegal, and there can be no recovery thereon though statute does not expressly prohibit contract or pronounce it void.

Holder of private carrier permit, who made contract to transport goods by truck as contract carrier, though he was not licensed as contract carrier in accordance with statute, could not maintain action for damages for breach of contract. Gen.St. 1935, 66-1,108(g, i), 66-1,111, 66-1,112a, 66-1,115, 66-1,130.

Where it became apparent, during course of trial of action on contract, that contract was in violation of law, it was trial court's duty to dismiss action.

1. Where a demurrer to evidence was first sustained and then on a motion for a new trial the original order was set aside and vacated and a new trial granted, such action will be considered as tantamount to an overruling of the demurrer to the evidence and will be so considered on appeal.

2. In ruling on a demurrer to the evidence, courts do not weigh the evidence or compare contradictory testimony but must accept all evidence as true and consider only such portions thereof as are favorable to the party adducing it.

3. A person who agrees to transport property of another for a consideration by motor vehicle from a point in Kansas to a destination in Colorado, under the terms of a contract which require him to own, operate and have full control of his motorized equipment including the drivers thereof, to pay all expenses of operation and furnish his own liability insurance and Kansas State license tag, and the other person to furnish and pay for all other necessary permits, licenses and mileage fees required by state law, is in the performance of such contract a contract motor carrier of property for hire within the meaning and intent of G.S.1935, 66-1,108, and required to have a contract carrier's license as required by statute.

4. One who makes a contract to transport goods as a contract carrier, and who is not licensed as such, cannot maintain an action in damages for the breach of such contract.

5. When an action is brought on contract and during the course of the trial it becomes apparent that the contract sued on is in violation of law, it is the duty of the trial court to dismiss the action.

Appeal from District Court, Shawnee County, Division No. 3; Dean McElhenny, Judge.

Action for breach of contract by E. E. Roddy against the Hill Packing Company, wherein defendant filed a cross-petition. From an order overruling defendant's demurrer to the evidence, the defendant appeals.

Order reversed, and case remanded with instruction to sustain demurrer and dismiss action.

A. Harry Crane, of Topeka (Ward D. Martin, of Topeka, on the brief), for appellant.

Jacob A. Dickinson, of Topeka (Edward Rooney, of Topeka, on the brief), for appellee.

PARKER Justice.

This was an action to recover money for breach of an oral contract.

Material allegations in the petition are as follows: The defendant orally proposed to plaintiff, who was the owner of a Ford Truck and semitrailer and the holder of KCC and ICC permits for trucking operations between Harveyville, Kansas, and Kansas City, Missouri, that if he would purchase a White Motor Company truck or tractor and would equip his semitrailer with special equipment required for proper transportation of aged and decrepit horses, the defendant would enter into a trucking contract with plaintiff, for a period of one year and would use his equipment between Topeka, Kansas, and Denver, Colorado, a minimum of 2,405 miles per week in hauling for defendant and pay him the sum of eight and one-half cents per mile for such hauling; the plaintiff to furnish all necessary drivers and pay all charges and expenses of his operations, including expense in the sum of approximately $60 in the equipping of his semitrailer, to furnish his Kansas State license tag and liability insurance, all other licenses, permits and mileage fees to be furnished and paid for by the defendant; the plaintiff accepted such offer, purchased a White Cab over-engine tractor and made required alterations of his semitrailer and placed himself in readiness to perform his part of the contract; thereafter between May 14, 1940, and June 13, 1940, defendant furnished plaintiff approximately 4640 miles of hauling and on or about June 14, 1940, refused to furnish further hauling and announced its intention to furnish no further hauling to the plaintiff at any time in the future.

The petition further alleged that by reason of the failure of defendant to comply with the terms of the contract the plaintiff was unable to meet charges and payments upon his equipment and was forced to deliver the same to the holders of the mortgage thereon to his loss and damage in the sum of $1,575; that he was forced to permit his ICC and KCC permits to lapse to his loss and damage in the sum of $2,500; that he was injured and damaged through loss of earnings and profits under such contract in the sum of $5,000 and that in reliance upon the contract he had expended the sum of $400 in altering and preparing his equipment for performance thereof to his injury and damage in such sum.

The defendant's answer and cross-petition contained an admission of its corporate existence and a general denial of all matters alleged by the plaintiff in his petition and in addition contained the following allegations: There were negotiations between plaintiff and defendant during April 1940, which were not consummated until on or about the 3rd of May, 1940, at which time the parties entered into an agreement in writing a copy of which entitled "truck lease" was attached to the petition and made a part thereof; pursuant to the terms of said truck lease agreement the defendant leased the equipment heretofore described and employed plaintiff to operate the same at a wage of thirty cents per hour in any event and in addition to pay him the difference between five cents per mile for each mile actually traveled by such motor equipment and the actual cost of operation of the same, if plaintiff was able to operate it at an actual cost of less than five cents per running mile; plaintiff was fully paid for all services rendered by him under the contract.

The answer further alleged: On or about May 30, 1940, plaintiff was sent to Western Kansas with the equipment for a haul on said date or the day thereafter and while operating the truck near Ellsworth, Kansas, he became intoxicated, was placed in jail and as a consequence his driver's license was later revoked and because thereof his employment could no longer be continued by the defendant; it was necessary for defendant, while plaintiff was in jail, to pay $34.56 to obtain a release of the truck and to send another driver to Ellsworth to continue the operation thereof at an expense of $10; after his release from jail the plaintiff returned to Topeka and objected to the driver who was being used by the defendant in driving the truck and it was then parked on plaintiff's property and ceased to be used for hauling purposes; on or about June 17, 1940, the plaintiff induced the defendant to permit him to furnish a driver for the truck and borrowed the same for the purpose of moving his household effects from Harveyville, Kansas, to Coffeyville, Kansas, on plaintiff's promise he would deliver the truck back to the defendant on the following evening; pursuant to this arrangement the defendant put thirty gallons of gasoline in the truck at a cost of S4.05 and delivered it to plaintiff for the purpose stated but plaintiff failed to return the truck as agreed and defendant has neither had possession of nor seen it since such date; that by reason of the acts and conduct of the plaintiff it became impossible for defendant to carry out the terms of the written lease agreement as to rental of said truck and it was cancelled.

The cross-petition adopted pertinent portions of the answer as a part thereof and alleged plaintiff was indebted to defendant in the sum of $34.56 for release of the truck from officers at Hays, Kansas, the sum of $10 for expenses of sending the new driver for such truck and the sum of $4.05...