Schauf v. Peter Kiewit & Sons Co.
| Decision Date | 04 August 1960 |
| Docket Number | No. 41944,41944 |
| Citation | 354 P.2d 687,187 Kan. 180 |
| Parties | Herman P. SCHAUF, Appellant, v. PETER KIEWIT & SONS COMPANY, a Corporation, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
When, under the conditions and circumstances set forth at length in the opinion, a demurrer has been sustained to a third amended petition on the ground it fails to state a cause of action and the plaintiff thereafter and notwithstanding the former ruling files a fourth amended petition, containing allegations so similar they differ in no substantial particular as against a demurrer and require the trial court to either again review and pass upon what it has previously determined or ignore its former ruling, such court does not commit reversible error in sustaining a demurrer to the fourth amended petition, based on the ground that pleading failed to state facts sufficient to constitute a cause of action because of the ruling made by the court on the demurrer to the third amended petition.
John Callahan, Wichita, argued the cause and was on the briefs for appellant.
Robert T. Cornwell, Wichita, argued the cause, and Wayne Coulson, Paul R. Kitch, Dale M. Stucky, Donald R. Newkirk, Robert J. Hill, Gerrit H. Wormhoudt, Philip Kassebaum, John E. Rees, and Willard B. Thompson, Wichita, were with him on the briefs for appellee. Hugo T. Wedell and Homer V. Gooing, Wichita, of counsel.
This is an action for property damages sustained as the result of a collision between two motor trucks. The appeal is from an order sustaining a demurrer to plaintiff's fourth amended petition.
A summary of the proceedings had in the court below will insure a proper understanding of the decisive question involved.
Plaintiff commenced this lawsuit by filing a petition predicated on the theory of ordinary negligence. A motion to make definite and certain was sustained thereto and, as a result thereof, plaintiff filed an amended petition and attached a copy of a truck rental agreement entered into between the parties, the contents of which will be presently noted. Defendant then demurred to the amended petition and such demurrer was sustained.
Thereafter, plaintiff filed a first amended petition and a second amended petition. These petitions were subjected to various motions to strike, all of which were sustained and plaintiff proceeded to file his third amended petition. Thereupon defendant demurred to that pleading on the ground it failed to state facts sufficient to constitute a cause of action. When this demurrer was sustained plaintiff did not appeal from that ruling but instead obtained leave to file a fourth amended petition.
Summarized in part, the fourth amended petition states the residences of the respective parties; that plaintiff owned a three-ton truck; that such truck had been leased to defendant under the terms of a lease agreement which, by reference, was made a part of such pleading; that on the day in question defendant's driver was operating plaintiff's truck on a contract job; that just prior to the accident such employee, while driving the leased truck, and another driver, who was driving a truck owned by defendant, were proceeding in opposite directions along a strip, two hundred feet in width, of travel worthy concrete pavement; and that the employee driving plaintiff's truck could not successfully evade the other oncoming truck, with the result a collision occurred and plaintiff's truck was damaged.
Further pertinent provisions of the same pleading read:
'3. Plaintiff has been damaged by the wanton conduct of defendant's said employee, driving defendant's vehicle as aforesaid, acting in the course of his employment, in the amount of $8,293.95, which was caused by the defendant's said employee as follows:
'1. Defendant's employee who was operating defendant's vehicle drove it directly at the vehicle owned by plaintiff outside his traffic lane, for the accomplished purpose of frightening and distracting the operator of plaintiff's vehicle so as to compel him to change his course of direction.
(Emphasis supplied.)
At this point, for reasons to become apparent, portions of plaintiff's third amended petition, to which the general demurrer was sustained, will be noted. In this connection it may be stated that from the standpoint of the cause of action therein attempted to be pleaded, except for differences of minor importance to be presently mentioned, the allegations of the fourth amended petition are substantially the same as those of the third.
Bearing in mind the quoted portions of the fourth amended petition and considering the provisions thereof, heretofore emphasized in paragraph 3 and subparagraph 1, the first sentence of paragraph 3 of the third amended petition contained the phrase 'gross, wanton and wilful negligence' in place of the words 'wanton conduct.' The phrase 'outside his traffic lane' did not appear in the third amended petition. Instead that pleading alleged 'defendant's employee who was operating defendant's vehicle intentionally drove it directly at the vehicle owned by plaintiff, for the accomplished purpose of frightening and distracting the operator of plaintiff's vehicle so as to compel him to change his course of direction.' The heretofore quoted language of paragraph 3, subparagraph 2, of the fourth amended petition was not included in the third.
As has been heretofore indicated the 'Truck Rental Agreement' and/or 'Lease Agreement,' previously mentioned, was attached to and made a part of the petition as initially amended. Pertinent portions of such agreement read:
Having attached the rental agreement to the initial petition plaintiff included that instrument in his first, second, third, and fourth amended petitions by reference only. Thus it appears, that by plaintiff's own action, the trial court in ruling on each attack made against the pleadings just mentioned was required to take judicial notice of pleadings filed earlier in the case, as well as its rulings with respect thereto. This, we may add, was particularly required, when it came to ruling on the demurrer to the fourth amended petition, by reason of the very nature of the attack made against that pleading.
Upon the filing of the fourth amended petition defendant demurred thereto on the ground that pleading did not state facts sufficient to constitute a cause of action as held by the order of the court entered on November 2, 1959. (that being the date of the order sustaining the demurrer to the third amended petition.) This demurrer was sustained. Thereupon plaintiff perfected the instant appeal which, since the notice of appeal did not include any prior rulings or orders, is limited strictly to that ruling.
In his brief and on oral argument, ignoring all prior rulings and orders with respect to the pleadings and wholly disregarding the basic premise on which the demurrer was lodged and sustained against the fourth amended petition, appellant appears to insist the propriety of the trial court's action must be determined in the same manner as if we were here giving consideration to an appeal from an order sustaining a general demurrer to an original petition. The problems presented are not that simple.
In effect for all practical purposes, as appellee contends, the attack made against the fourth amended petition is in the form of a special demurrer, wherein it is specifically pointed out such pleading did not state facts sufficient to state a cause of action, because the trial court had theretofore held factual allegations of similar import did not do so. In other words, such demurrer is to be construed as raising the issue that under the law of the case, theretofore established by the trial court in sustaining the general demurrer to the third amended petition, the fourth amended...
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