Sterling v. Hartenstein, 41380
| Decision Date | 13 June 1959 |
| Docket Number | No. 41380,41380 |
| Citation | 341 P.2d 90,185 Kan. 50 |
| Parties | Harold STERLING, Appellant, v. Everett Eugene HARTENSTEIN and Farm Bureau Mutual Insurance Co., Inc., a Corporation, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In an action for personal injuries against a defendant motor carrier of property and his insurance carrier, the petition alleged all the necessary elements of a statutory policy of liability insurance to insure 'compensation' to an injured traveler as required by G.S.1957 Supp. 66-1,128, as well as that of an ordinary indemnity policy of insurance, and further alleged that plaintiff did not have access to the policy of insurance and requested that defendants be required to file such policy with the court, and it is held: The order of the trial court sustaining the insurance carrier's motion to dismiss the action as to it is erroneous as having been prematurely entered. Under the foregoing circumstances it was incumbent upon the insurance carrier to produce the insurance policy for consideration by the trial court prior to its ruling on such motion.
2. It is improper in a motion, such as described in the foregoing syllabus, to contradict the allegations of the petition by injecting disputed questions of fact before joinder of issues and a trial upon the merits.
3. In pleading a cause of action under the Public Motor Carrier Act of this state as indicated in Syllabus No. 1, a plaintiff is not required to negative the exceptions or exemptions provided in the act. These are matters of defense.
4. An insurance carrier furnishing liability insurance to a motor carrier may be joined with such motor carrier as a party defendant and held directly liable to a plaintiff injured by the negligent operation of such motor carrier on the highways of this state, even though such motor carrier does not have a permit or license from the State Corporation Commission under the Public Motor Carrier Act, where (a) the motor carrier was required under the Public Motor Carrier Act of this state to have a license; (b) the policy of insurance issued the motor carrier was a liability insurance policy of the type required of a licensed motor carrier in this state by G.S.1957 Supp., 66-1,128; and (c) the motor carrier was at the time of the accident being operated on the highways of this state in the business for which a license or permit was required, and in contemplation of which the insurance policy was issued by the insurance carrier for compliance with the Public Motor Carrier Act.
5. There is no duty upon an insurance company to police its policy holders to determine whether some may be violating the Public Motor Carrier Act.
6. Where a motor carrier operating on the highways of this state does not have a permit or license from the State Corporation Commission, but is required to have such permit or license under the Public Motor Carrier Act for the business in which he is operating such motor carrier, knowledge on the part of an insurance company that such motor carrier for which it issues an indemnity policy should comply with the Public Motor Carrier Act is not in and of itself sufficient to force direct liability upon the insurance carrier by reading the provisions of G.S.1957 Supp., 66-1,128, into the policy.
C. Vincent Jones, Clay Center, argued the cause, and Wayne W. Ryan, Clay Center, was with him on the brief, for appellant.
Richard D. Rogers, Manhattan, argued the cause, and W. M. Beall, Clay Center, was with him on the brief, for appellees.
This is an action for personal injuries against a defendant motor carrier of property, and his insurance carrier.
The question presented on appeal is whether the trial court error in sustaining a motion which dismissed the action as to the insurance carrier.
The plaintiff, Harold Sterling, (appellant), filed an amended petition, hereafter referred to as the petition, which alleged a cause of action on the ground of negligence. For purposes of this appeal it may be assumed the petition stated a cause of action in ordinary negligence against the defendant Hartenstein who was operating a large truck upon the highways of Riley, Geary, Clay and Dickinson Counties, in the business of buying, selling and transporting, upon commission and for hire, milk and cream. The damages to the plaintiff were alleged to be the result of a collision on the 7th day of October, 1957, between the parties at an intersection of a township road upon which the defendant Hartenstein was driving and a county highway upon which the plaintiff was driving.
The only allegations material herein relate to the insurance carrier. These allegations read as follows:
'6--That at all times material herein, and for a long time prior to October 7, 1957, said Hartenstein desired to have public liability insurance upon said truck which would indemnify and insure him against loss and liability for loss arising to others from the negligent operation of said truck, whether operated in the business hereinafter mentioned or not; and desired to use said truck upon the public highways as a motor carrier of property, upon a long milk route in Riley, Geary, Clay and Dickinson Counties, in the business of buying and selling, and hauling upon commission and for hire, milk and cream; and desired to have such a public liability and insurance policy as required by the provisions of 66-1,128 of 1957 Supplement of the General Statutes as would enable him to apply for and receive a permit or license from the State Corporation Commission to lawfully operate said truck in said business, and be such a public liability insurance policy as was required by said section of the Statute as a condition precedent to such license or permit, and for the protection and insurance of the public as users of the highways, including plaintiff, while said truck was being operated in such business. Said statute required such policy to be not less than $10,000.00 for injury to any one person in any one accident.
(Emphasis added.)
The plaintiff's petition was filed on the 30th day of July, 1958, and upon the foregoing allegations the defendant, Farm Bureau Mutual Insurance Co., Inc., (appellee--hereafter referred to as the insurance carrier), moved the trial court for an order dismissing said petition as to it on the following grounds:
'(1) Plaintiff's petition describes and classifies the truck of the defendant, Hartenstein, simply as a 'motor carrier of property', whereas, under the specific provisions of G.S.1957 Supp., 66-1,128, to the General Statutes of Kansas for 1949, only the following classes of motor carriers, to-wit:
'(a) public motor carrier of property;
'(b) public motor carrier of passengers;
are required to obtain a certificate or license from the State Corporation Commission, and file with said Commission, as a condition precedent thereto the liability insurance policy referred to in said petition, and since the truck of the defendant, Hartenstein, as mentioned and described in said petition, does not fall within any of such statutory classifications, said Hartenstein was not required to obtain such certificate or license or file said policy with said Commission.
'(2) In the territory in which defendant, Hartenstein, operated his milk route, no common carrier service of any kind is, or was, at any time in said petition mentioned, available, and that under the provisions of subsection (d) of G.S.1957 Supp., 66-1,109, his motor carrier service would not be affected by the provisions of the Motor Carrier Act of this state.
'(3) The Corporation Commission of the State of Kansas has never assumed, nor believed under the law it could assume, jurisdiction of the business of those persons who operate trucks or motor carriers for the transportation of milk and/or other perishable products over routes such as that of the defendant, Hartenstein.
'(4) The Farm Bureau Mutual Insurance Company, therefore, is not a proper party defendant at this time, and the attempt to make it a party is premature.'
The trial court on the 1st day of October, 1958, sustained the above motion dismissing the petition as to the insurance carrier. From...
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