Shields v. State Highway Commission, s. 39793

• Decision Date: 06 July 1955
• Docket Number: Nos. 39793,39794,s. 39793
• Citation: 178 Kan. 342,286 P.2d 173
• Parties: Jimmie Lee SHIELDS, Appellee, v. The STATE HIGHWAY COMMISSION of the State of Kansas, Appellant. Charity Elaine SHIELDS, Appellee, v. The STATE HIGHWAY COMMISSION of the State of Kansas, Appellant.
• Court: Kansas Supreme Court

Page 173

286 P.2d 173

178 Kan. 342

Jimmie Lee SHIELDS, Appellee, v. The STATE HIGHWAY COMMISSION of the State of Kansas, Appellant.

Charity Elaine SHIELDS, Appellee, v. The STATE HIGHWAY COMMISSION of the State of Kansas, Appellant.

Nos. 39793, 39794.

Supreme Court of Kansas.

July 6, 1955.

Syllabus by the Court.

1. A demurrer to plaintiff's amended petition was overruled and in due time an answer was filed by defendant. Thereupon the motion to strike certain allegations in defendant's answer was sustained. Defendant appeals from this ruling. The record is examined, and held, that the contention of plaintiff that the overruling of the demurrer and the failure of defendant to appeal therefrom made the matters raised thereunder res judicata and incompetent to be set up in defendant's answer, cannot be sustained.

2. Service of written notice upon the director of highways within the time and manner specified in G.S.1949, 68-419, is a prerequisite to the maintaining of an action to recover damages thereunder.

Donald C. Amrein and Connie Achterberg, Topeka, argued the cause, and W. B. Kirkpatrick, Asst. Atty. Gen., was with them on the briefs for appellant.

Oren Gray, Parsons, and Payne H. Ratner, Jr., Wichita, argued the cause; James Phillips, Parsons, and Payne H. Ratner, Louise Mattox, Russell Cranmer, Dale B. Stinson, Jr., Keith Eales, Cliff W. Ratner, William L. Fry, and A. Wayne Murphy, Wichita, were with them on the briefs for appellees.

WERTZ, Justice.

This is a consolidation of two cases brought pursuant to the provisions of G.S.1949, 68-419, to recover damages allegedly caused by a defect in a state highway. The amended petition, the demurrer thereto, and the answer of the defendant, in each case, are identical in so far as they have application to the question involved herein, and the cases will be treated as one and referred to in the singular.

This is an appeal from an order of the trial court striking a substantial portion of defendant's defense from its answer in each case.

Appellees Jimmie Lee Shields and Charity Elaine Shields will be hereinafter referred to as plaintiffs, and appellant State Highway Commission, as defendant.

A brief stastement of the pleadings and question involved is as follows: In so far as pertinent, plaintiff's amended petition alleges that on April 6, 1952, at 1 o'clock a. m., plaintiff was traveling on a blotter type road west on state highway K-103 when his automobile struck a pit or chuckhole, ten inches deep and about three feet in diameter, located on the westbound traffic lane of the highway. The strip of road existed in a dangerous condition for six months prior to the time of the accident. Plaintiff was using due care at the time; that defendant had notice of the dangerous defect in the highway for more than five days prior to the accident, and that it failed to keep the road in good repair or to maintain it properly, or to erect barricades or warning signs to advise plaintiff of the dangerous condition of the highway; that plaintiff's automobile struck the chuckhole and turned over, injuring plaintiff as alleged. Plaintiff further alleged that the defendant was notified by registered mail by mailing notice on July 5, 1952, at the post office at Parsons, the notice stating the date, when, and place where he sustained his damages, his name and correct post office address, and damages suffered, the same being done within ninety days after the happening of the injuries and damage suffered by plaintiff, and that the notice was on file in the office of the State Highway Commission at Topeka; that more than thirty days had elapsed since the filing of the notice; that defendant had not paid plaintiff's claim and had refused to pay the same or any part thereof. Plaintiff asked judgment against the defendant for damages sustained.

The amended petition was attacked by demurrer, which was by the court overruled, generally. Subsequently, defendant filed its answer consisting of a general denial admitting the residence of plaintiff and that defendant was a body corporate with power to sue and be sued under existing laws of the state, and that highway K-103 was a part of the Kansas highway system under the jurisdiction and control of defendant; that plaintiff was possessed of a Kansas operator's license, and specifically denied plaintiff's damages were caused by reason of a highway defect; that plaintiff's injuries were the result of his carelessness and negligence as set forth, and further pleaded as follows:

'9. Defendant admits the mailing of notice by plaintiff on July 5, 1952, as set out in paragraph 7, count 1, of the petition but alleges and states that said notice was not received by the Director of Highways at his office in Topeka within the ninety-day period as required by G.S.1949, 68-419, and that plaintiff is not entitled to maintain this action.' (Italics supplied.)

Defendant seeks to recover its costs. To the answer, plaintiff filed a motion to strike the italicized portion of paragraph 9. The motion was sustained by the trial court and this appeal followed.

We will first consider plaintiff's motion to dismiss the appeal. It is argued that the defensive matter set up in the stricken portion of the answer was urged and presented to the court upon the hearing of the demurrer and, as the trial court overruled plaintiff's demurrer and no appeal was taken from such ruling within sixty days, it was a final adjudication and cannot be reasserted by defendant. Therefore, the motion to strike was properly sustained.

This same contention was made in the somewhat identical case of Miller v. Whistler, 153 Kan. 329, 331, 110 P.2d 744, 746, where we said:

'Appellee contends that matters raised, argued and briefed, which were decided by the court upon overruling the demurrer to plaintiff's petition, and unappealed cannot again be raised by being pleaded in the answer of defendants. It is asserted that the matters set up in the answer and which were stricken were briefed and submitted to the court upon the demurrer to the petition, and as the decision on the demurrer was not appealed, that the ruling on the demurrer was a final adjudication, and therefore the motion to strike was properly sustained. In support of these contentions appellee cites 49 C.J. 693, § 984, and Iowa decisions.

'We do not think the contentions of appellee can be sustained.

'Our statute G.S.1935 [G.S.1949], 60-758, provides that upon a demurrer being overruled, the party who demurred may answer if the court or judge is satisfied that he has a meritorious defense, and did not demur for delay. In overruling the demurrer the court made an order giving defendant thirty days in which to file an answer. Manifestly the court was satisfied the defendant had a meritorious defense.

'The argument of appellee is based on the assumption that as there was no appeal from the ruling on the demurrer to the petition, that such ruling was a final adjudication. However, if final judgment should be entered in the case against defendants, and an appeal from such judgment should be taken within two months, then, under G.S.1939 Supp. [G.S.1953 Supp.], 60-3314a, the ruling on the demurrer would be subject to review.'

In the instant case, the record fails to reveal the grounds of defendant's demurrer or the theory on which the court overruled it, and no final judgment was entered thereon. Under section 60-758 the defendant, having the right to answer, may set up in such answer as many grounds of defense as he may have, Section 60-710; State, ex rel. Corley v. Leopold, 172 Kan. 371, 240 P.2d 138, and citations therein, even though one or more of such defenses may have been raised and argued on the hearing of the demurrer and, when so done, such matters are not res judicata.

Having established the fact that defendant has a right to form his pleadings so as to meet such conditions and contingencies of the case as his opponent might possibly attempt to...