Stafford v. City of Coffeyville

• Decision Date: 06 April 1946
• Docket Number: 36548,36570.
• Citation: 161 Kan. 311,168 P.2d 91
• Parties: STAFFORD et al. v. CITY OF COFFEYVILLE.
• Court: Kansas Supreme Court

168 P.2d 91

161 Kan. 311

STAFFORD et al. v. CITY OF COFFEYVILLE.

Nos. 36548, 36570.

Supreme Court of Kansas

April 6, 1946

Appeal from District Court, Montgomery County; Joseph W. Holdren Judge.

Action by Lloyd Stafford and another against the City of Coffeyville for loss of a building and its contents by fire. From an order overruling defendant's demurrer to plaintiffs' second amended petition, and from an order sustaining plaintiffs' motion to strike two paragraphs from defendant's answer, the defendant appeals.

Order overruling demurrer affirmed; order sustaining motion to strike reversed.

Syllabus by the Court.

1. Applying the rule that a petition, attacked as to pertinent allegations by a timely motion which had been successfully resisted, should be construed strictly against the pleader the petition in an action for damages for property destroyed by fire is examined and it is held, that the court did not err in overruling a general demurrer to the petition.

2. In an action against a city for loss by fire alleged to have been caused by defendant's negligence, the city was entitled to plead pertinent ordinances of the city and to allege they had been violated by plaintiff and that such violation caused or contributed to the fire.

A. A Baker, City Atty., of Coffeyville, for appellant.

A. R. Lamb, of Coffeyville (Clement A. Reed, of Coffeyville, on the brief), for appellees.

HARVEY Chief Justice.

This was an action for loss of a building and its contents by fire alleged to have been caused by defendant's negligence. There are two appeals by defendant. Case No. 36,548 is an appeal from an order overruling defendant's demurrer to plaintiffs' second amended petition. Case No. 36,570 is an appeal from an order of the court sustaining plaintiffs' motion to strike two paragraphs from defendant's answer.

The allegations of the petition in question may be summarized or quoted from as follows: It is alleged that plaintiffs own and occupy as a residence a property at 314 East Eleventh street in Coffeyville, on which premises 'was a wooden building used by the plaintiffs in conducting an electrical appliance and repair shop, together with machines, forms, blue prints and other personal property used in connection therewith'; that defendant is a municipal corporation and engaged in the business of producing and selling electricity, and for that purpose maintained electric wires from the alley north of plaintiffs' premises to the dwelling house, which wires passed over the repair shop. The fifth paragraph of the second amended petition reads as follows:

'That on the 7th day of September, 1944, and for three months prior thereto, the electric wires from the alley to the principal dwelling house upon said premises were loose and the insulation thereon worn and ragged, so that the naked wire was exposed. That said wires came in contact with the guy wire connected to the metal chimney of said repair shop and the electricity from said electric wires flowed into the same, thereby causing a fire, which burned said repair shop and contents all to the damage of these plaintiffs in the sum of Five Thousand Eight Hundred [Fifty] and 33/100 ($5,850.33) Dollars. * * *'

Plaintiffs further alleged that defendant's negligence consisted in its failure, (1) to inspect properly the electric wiring over plaintiffs' workshop and to discover and repair the defective condition of the electric wires; (2) to keep the electric wires over the repair shop taut, but permitted them to sag so that the wires came in contact with the guy wire upon the roof of the workshop, and (3) in permitting 'the insulation upon the wires over plaintiffs' workshop to become worn and ragged, so that the wire was not properly insulated, and that the electricity escaped therefrom into the guy wire that supported the metal chimney upon the roof of said workshop, thereby causing said fire.' That on November 20, 1944, plaintiffs filed with the city their verified claim for damages, a copy of which was attached to plaintiffs' original petition. The claim filed was for damages in the sum of $3,300. In the original petition plaintiffs asked damages in the sum of $4,538.31 and in the second amended petition the amount claimed was $5,850.33.

After the filing of the petition defendant filed a motion that plaintiffs be required to make the same more definite and certain in nine particulars, set out in separate paragraphs. This motion was considered by the court and overruled except as to the ninth paragraph which asked a more particular description of the blue prints and forms plaintiffs claimed were destroyed. The motion specifically asked that the fifth paragraph of the petition be made more definite and certain in several particulars. Notwithstanding the fact that this part of the motion was overruled plaintiffs filed an amended petition modifying that paragraph. Thereafter defendant filed another motion to make the petition more definite and certain, which was by the court considered and overruled, notwithstanding which plaintiffs again amended the fifth paragraph of the petition. The amendments together made it in the form hereinbefore quoted. Defendant also moved the court to require plaintiffs to elect whether their claim against defendant was filed under G.S.1935, 12-105, or G.S.1935, 13-1414. This motion was denied.

To the second amended petition defendant filed a motion asking that plaintiffs be required to state how they knew the wires in question had been in the condition described for three months prior to September 7, 1944, and to state if defendant was notified of said condition, and if so, how; to state if the wires from the alley to the house were put in before or after the workshop was built, and to state whether before or after the metal chimney was put on the roof of the workshop; to state whether the wires running from the alley to the house carried 110 volts or a greater voltage, and to state where the other end of the guy wire supporting the metal chimney was fastened. Defendant also moved to strike each of the three acts of negligence upon the ground that the facts stated therein did not constitute negligence of defendant or, in the alternative, to restate them, particularizing the matters plaintiff claimed to constitute negligence. This motion was considered by the court and overruled. Defendant then filed a demurrer to the petition on the ground that it did not state facts sufficient to constitute a cause of action against the...