Sundgren v. Topeka Transp. Co.

• Decision Date: 07 May 1955
• Docket Number: 39779,Nos. 39692,s. 39692
• Citation: 178 Kan. 83,283 P.2d 444
• Parties: John L. SUNDGREN, Appellee, v. The TOPEKA TRANSPORTATION COMPANY, Incorporated, Appellant.
• Court: Kansas Supreme Court

Page 444

283 P.2d 444

178 Kan. 83

John L. SUNDGREN, Appellee, v. The TOPEKA TRANSPORTATION COMPANY, Incorporated, Appellant.

Nos. 39692, 39779.

Supreme Court of Kansas.

May 7, 1955.

Rehearing Denied June 17, 1955.

Syllabus by the Court.

1. Under the provisions of the Workmen's Compensation Act pertaining to subrogation (G.S.1949, 44-504), there is a community of interest as between employer and employee in an action against a negligent third person, and there is but one cause of action.

2. Under G.S.1949, 60-710, a defendant may set forth in its answer any new matter constituting a defense or right to relief concerning the subject of the action.

3. Where no motion to require a petition to be made more definite and certain was filed, on consideration of a demurrer thereto, it should be given a liberal construction and all reasonable inferences should be drawn and presumptions indulged in favor of the pleader.

4. Where a petition alleges a cause of action but does so imperfectly and with insufficient detail, and the additional allegations of an amended petition are only an enlargement and amplification of the averments of the original by setting out more definitely that which was previously imperfectly pleaded and do not set up a new cause of action, the fact that the statute of limitations has run when the amended petition is filed is not a bar to recovery, for in such a case the amended petition relates back to the date of filing of the original one.

5. Rule followed that an amendment of a petition which merely corrected and eliminated inaccuracies in the names and capacity of parties plaintiff did not change the cause of action so as to permit the statute of limitations to operate as a bar to the action where the original petition itself was filed in time.

Willard N. Van Slyck, Jr., Topeka, argued the cause, and Clayton E. Kline, M. F. Cosgrove, Robert E. Russell, and William B. McElhenny, Topeka, were with him on the briefs for appellant.

David H. Fisher, Topeka, argued the cause, and Irwin Snattinger and Donald Patterson, Topeka, were with him on the briefs for appellee.

WERTZ, Justice.

This action was brought in the name of John L. Sundgren, plaintiff, to recover for personal injuries alleged to have been caused by the negligence of the defendant.

Defendant's appeal is from an order sustaining plaintiff's motion to strike certain matters of defense from its amended answer to the original petition, and from an order overruling defendant's demurrer to plaintiff's subsequent petition, as amended.

Appellee John L. Sundgren will be hereinafter referred to as plaintiff, and appellant Topeka Transportation Company, Inc., as defendant.

In the original petition filed October 26, 1953, omitting the formal and detailed portions, plaintiff alleged that he was injured on January 18, 1952, when the truck which he was driving was struck in a street intersection by a bus being operated by the defendant through its agent. The petition alleged the specific acts of negligence on the part of defendant which were the proximate cause of the plaintiff's injury, the extent of the injuries suffered, and the amount of damages claimed, including hospital and doctor bills, and asked judgment for damages in the amount specified therein.

To the petition, the defendant filed an amended answer denying the allegations of the petition, except certain formal ones as to residence, corporate entity of the defendant, agency, and time and place of the accident. After pleading the defense of contributory negligence, the defendant affirmatively alleged that the plaintiff was an employee of James R. Shimer; that the injuries sustained by plaintiff were the result of an accident arising out of and in the course of his employment with James R. Shimer; that plaintiff and Shimer were operating under and governed by the provisions of the Workmen's Compensation Act of Kansas, G.S.1949, 44-501 et seq.; that subsequent to the date of the collision, plaintiff received and accepted from his employer and its insurance carrier payments of compensation and, in addition thereto, hospital and medical expense in the amounts stated as authorized by the Workmen's Compensation Act. The answer further alleged:

'* * * That said payments were made and were accepted by plaintiff in connection with the personal injuries allegedly sustained by plaintiff in the collision accident of January 18, 1952, mentioned in plaintiff's petition herein. That one of the sections of said workmen's compensation act (G.S.1949, 44-504) provides, in part, that an action against an alleged negligent third party for damages on account of personal injuries sustained by a workman which are compensable under said act, if prosecuted by said workman, must be instituted within one year from the date of the injury, and that failure on the part of the injured workman to bring such action within said time shall operate as an assignment to his employer of any cause of action in tort which the workman may have against any other party for such injury. That this action was not instituted within one year from the date of plaintiff's alleged injury on January 18, 1952, the plaintiff's petition herein not being filed until on or about October 26, 1953. That, as shown on the face of plaintiff's petition, this action has been instituted solely by and for the benefit of the plaintiff, John L. Sundgren. That, as a consequence, this action was, at the time it was filed, and is now barred by the limitation provision contained in said statute (G.S.1949, 44-504), and that this defendant, since the expiratioin of said one-year period from the date of the said accident, has not been subject to suit by, and has no legal liability to, said plaintiff, John L. Sundgren * * *'.

Plaintiff moved to strike certain portions from defendant's answer, including the above-quoted portion, on the ground that the allegations were not properly pleaded or a proper defense to the plaintiff's cause of action. The motion was overruled in part and plaintiff was ordered to include in his petition information as to the real party plaintiff in interest, and that part of the motion lodged against the quoted portion of the answer was sustained by the court and stricken. From this latter ruling, defendant appeals.

On July 16, 1954, plaintiff filed an amended petition, adding to this original petition the allegation that he was employed by one Shimer as a delivery truck driver and, on the day of the accident, was operating the truck in the course of his employment with Shimer; that by reason of his employment and injury sustained in the accident, was furnished medical treatment and hospitalization by his employer Shimer, named the doctors and hospital, the amounts paid to each, and that plaintiff was paid compensation in the specified amount by his employer's insurance carrier, as provided by the Workmen's Compensation Act, and that by reason of the payment of compensation and medical expenses, plaintiff's employer Shimer, and his insurance carrier are subrogated in the amount of the payments, and that the action was brought for the benefit of plaintiff, his employer Shimer, and the insurance carrier, as their interest may appear. The prayer was also changed to include the amount of compensation paid by the employer and his insurance carrier, and specified an amount for permanent injury, pain and suffering to plaintiff.

Defendant demurred to the amended petition on the ground it failed to state facts sufficient to state a cause of action against defendant, which was overruled, from which ruling it appeals.

Summarized, defendant's contention is that the instant action is barred by the statute of limitations contained in G.S.1949, 44-504, which reads:

'When the injury * * * for which compensation is payable under this act was caused under circumstances creating a legal liability against some person other than the employer to pay damages, the injured workman, * * * shall have the right to take compensation under the act and pursue his * * * remedy by proper action in a court of competent jurisdiction against such other person. In the event of recovery from such other person by the injured workman, * * * by judgment, settlement or otherwise, the employer shall be subrogated to the extent of the compensation and medical aid provided by him to date of such recovery and shall have a lien therefor against such recovery and the employer may intervene in any action to protect and enforce such lien. Such action against the other party, if prosecuted by the workman, must be instituted within one year from the date of the injury, * * *. Failure on the part of the injured workman, * * * to bring such action within the time herein specified, shall operate as an assignment to the employer of any cause of action in tort which the workman * * * may have against any other party for such injury * * * and such...