Sheen v. State Highway Commission

• Decision Date: 08 November 1952
• Docket Number: 38714,38707,Nos. 38708,s. 38708
• Citation: 249 P.2d 934,173 Kan. 491
• Parties: SHEEN v. STATE HIGHWAY COMMISSION. GROAT v. STATE HIGHWAY COMMISSION. BLACK, SIVALLS & BRYSON, Inc. v. STATE HIGHWAY COMMISSION.
• Court: Kansas Supreme Court

Page 934

249 P.2d 934

173 Kan. 491

SHEEN v. STATE HIGHWAY COMMISSION.

GROAT v. STATE HIGHWAY COMMISSION.

BLACK, SIVALLS & BRYSON, Inc. v. STATE HIGHWAY COMMISSION.

Nos. 38708, 38707, 38714.

Supreme Court of Kansas.

Nov. 8, 1952.

Syllabus by the Court.

The petitions in three consolidated actions against the State Highway Commission to recover for personal injuries and property damage sustained when a pickup truck overturned on a state highway, wherein it is alleged the overturning of such pickup truck was cuased by a defect in the highway resulting from an accumulation of crude oil which had been spilled, dripped, and tracked thereon by oil trucks, belonging to a third party, while crossing an intersection of such highway examined, and held, not to allege facts sufficient to show the highway was defective within the meaning of the provisions of the statute, G.S.1949, 68-419.

Edward Rooney, Jacob A. Dickinson, David Prager and Sam A. Crow, all of Topeka, and Melvin O. Nuss and Vernon Nuss, both of Great Bend, were on the briefs for appellant.

Mason Mahin, Topeka, attorney for State Highway Commission, and Robert M. Cowger, of Topeka, were on the briefs for appellee.

PARKER, Justice.

These are actions against the State Highway Commission to recover for personal injuries and property damage sustained when a pickup truck overturned on a state highway. In each case, without directing any motion against the petition, the defendant demurred on the ground it failed to state a cause of action. When these demurrers were sustained the plaintiffs perfected the involved appeals which were subsequently consolidated and heard together on appellate review.

In order to insure a proper understanding of the manner in which the court in this opinion will treat the appellate issue involved a short preliminary statement is required.

All actions in question were instituted on September 12, 1951, by the filing of petitions which, except for a description of the party plaintiff and the injuries sustained to person or property, contained identical language respecting the fundamental facts on which the respective parties base their cause of action.

In the cases here docketed as appeals Nos. 38,707 and 38,708, the respective plaintiffs are claiming damages for personal injuries. Demurrers to their petitions were sustained by the district court of Barton county. In the case docketed as appeal No. 38,714, the plaintiff is claiming damages for injuries sustained to the pickup truck involved in the accident. The demurrer to its petition was sustained by the district court of Ness county.

From what has been heretofore related it is apparent the sole issue presented by the foregoing appeals, i. e., whether the trial court erred in sustaining the demurrers to the petitions, can be treated and disposed of as if only one appeal and a single petition were involved. We shall therefore proceed on that premise, pointing out in advance that in doing so subsequent use of the terms 'plaintiff' or 'appellant', as the case may be, is intended to apply and has reference to each and every person appealing from the decisions rendered by the courts below.

At the outset and before relating allegations of the petition, which we are constrained to hold must be given consideration in disposing of the ruling on the demurrer, we note and deem it advisable to discuss claims advanced by appellee to the effect certain allegations appearing in that pleading are of such character as to preclude a conclusion the appellant bases his right of recovery upon the provisions of G.S.1949, 68-419, providing that any person who shall without contributory negligence on his part sustain damage by reason of a defect in a state highway, not within an incorporated city, may recover such damages from the State of Kansas where officials designated therein shall have had notice of such defect five days prior to the time when such damage was sustained. These claims, we pause to point out, must be disposed of in the light of the well established rule, see Stuckey v. Shultz, 173 Kan. 343, 245 P.2d 1197, the decisions there cited and other decisions of like import listed in West's Kansas Digest, Pleading, k26, 34, ; also Hatcher's Kansas Digest, Pleading, §§ 35, 37, that where a demurrer is filed to a petition on the ground it does not state a cause of action, without first presenting a motion to have the allegations thereof made more definite and certain, the allegations of such pleading will be liberally construed in favor of the pleader.

Touching the point now under consideration appellee contends the allegations of the petition disclose appellant is relying upon its negligence, not upon a defect in the highway, for recovery. Conceding there is language in the petition susceptible of such a construction the petition, as will subsequently be disclosed, contains other averments which, when given the benefit of inferences to which they are entitled in ruling on a demurrer, warrants a contrary construction. It has been held that inconsistent allegations do not make a petition demurrable. Bichel v. Oliver, 77 Kan. 696, 95 P. 396; Fetzer & Co. v. Williams, 80 Kan. 554, 103 P. 77; Downey v. Phillips, 137 Kan. 362, 20 P.2d 453. Therefore, under the rule announced in the foregoing decisions, even though it be conceded the allegations charging appellee with negligence are inconsistent with those charging it with liability because of a defect in the highway, the appellant is not precluded from relying upon the latter allegations in support of its position the demurrer to the petition was improperly sustained. Next, appellee points out the petition contains an allegation charging that the proximate cause of the truck overturning on the highway, and appellant's resulting injuries, was the presence of crude oil which had been spilled, dripped, and tracked by trucks of the Shallow Water Refining Company on such highway. Quite true. Based on this premise it argues there can be but one proximate cause for the accident and hence the petition fails to state a cause of action against it. The trouble with this argument from appellee's standpoint is that such pleading also contains allegations to the effect the proximate cause of the accident was its action in permitting a condition to remain on the highway which constituted a defect. We are not inclined to labor decisions cited by appellee respecting the doctrine of proximate and unrelated causes. All that need be said is that under the decisions to which we have referred, with the allegations last above mentioned in the petition, its contention such pleading fails to charge the defect in the highway was the proximate cause of the accident cannot be upheld. Finally, although it does not strenuously argue the point, appellee suggests its demurrer should have been sustained under the doctrine of confusion of theories. It may be assumed there might be some merit to this suggestion if a motion had been leveled against the petition and successfully resisted. As it is the answer thereto is to be found in Sluss v. Brown-Crummer Inv. Co., 137 Kan. 847, 22 P.2d 965, where we held:

'While the general rule is that, where a general demurrer is filed to a petition, no motion to make more definite and certain having been presented, the demurrer should be overruled if the facts stated constitute a cause of action whether well pleaded or not, and inconsistent causes of action do not render a pleading demurrable, a different rule must be applied where plaintiff, as a result of procuring rulings favorable to him, defeats every effort of the defendant to ascertain on what theory he founds his cause of action; and in such case, if the petition is not drawn upon a single and definite theory, or there is such a confusion of theories that the court cannot determine from the general scope of the petition upon which of several theories a recovery is sought, it is insufficient, and a demurrer thereto should be sustained.' (Paragraph 2.)

Having disposed of the foregoing contentions and determined that under the existing conditions and circumstances the allegations relied on by appellee in support of its position are not of such character as to preclude consiseration of other portions of the petition tending to support a cause of action predicated on appellee's liability for damages sustained by reason of a defect in a state highway we are now in a position to examine the petition as if such allegations were not there. When so examined the substance of the allegations, not heretofore considered, can be summarized as follows: That the plaintiff, alleging his place of residence, brings the action against the defendant (State Highway Commission) pursuant to G.S.1949, 68-419, after having served written notice of his claim upon the director of highways, in the manner and within the time therein prescribed.

On the morning of September 14, 1949, plaintiff was driving a Ford pickup truck, belonging to Black, Sivalls & Bryson, Inc., with Richard Sheen and Leonard L. Conner as passengers, in a westerly direction...