Tabor v. Lederer

• Decision Date: 17 July 1970
• Docket Number: No. 45765,45765
• Citation: 472 P.2d 209,205 Kan. 746
• Parties: John B. TABOR, Appellant, v. Harry E. LEDERER, Appellee.
• Court: Kansas Supreme Court

Page 209

472 P.2d 209

205 Kan. 746

John B. TABOR, Appellant, v. Harry E. LEDERER, Appellee.

No. 45765.

Supreme Court of Kansas.

July 17, 1970.

Syllabus by the Court

1. A motion for judgment on the pleadings pursuant to K.S.A.1969 Supp. 60-

212(c) is based upon the premise that the moving party is entitled to judgment on the face of the pleadings themselves.

2. In considering a motion for judgment on the pleadings filed by the defendant the basic question is whether upon the admitted facts the plaintiff has stated a cause of action.

3. The execution of a release pleaded by the defendant in his answer is an allegation of affirmative defense concerning which the defendant must sustain the burden of proof.

4. Under the provisions of K.S.A. 208(d) allegations contained in a pleading to which no responsive pleading is required or permitted are to be taken as denied or avoided.

5. A reply to an answer is not one of the pleadings allowed under the provisions of K.S.A. 60-207, except when so ordered by the court.

6. Summary judgment should not be entered if there remains a genuine issue of fact, nor where the opposing party is proceeding with due diligence with his pretrial discovery but has not had an opportunity to complete it. (Following Timmermeyer v. Brack, 196 Kan. 481, 412 P.2d 984.)

7. The record is examined in an action wherein the trial court sustained the defendant's motion for judgment on the pleadings and for reasons appearing in the opinion it is held the trial court erred in so ruling.

David R. Hills, of Boddington & Brown, Kansas City, argued the cause and was on for brief for appellant.

Donald A. Hardy, of Williamson, Cubbison & Hardy, Kansas City, argued the cause and was on the brief for appellee.

FONTRON, Justice.

The plaintiff, John B. Tabor, commenced this action December 20, 1968, to recover damages sustained by his automobile in a collision which was allegedly caused by negligence on the part of the defendant, Harry E. Lederer.

On January 23, 1969, the defendant filed his answer denying negligence on his part, alleging contributory negligence on the part of plaintiff and further alleging that the plaintiff had released the defendant from any and all actions, claims and demands arsing out of the accident. A copy of the release allegedly executed by the plaintiff, Tabor, was attached to and made a part of the defendant's answer.

Five days after filing its answer the defendant filed a motion for judgment on the pleadings. One month later, and on February 28, 1969, the plaintiff filed a request for admission of facts and genuineness of documents. Attached to this request were copies of correspondence addressed and sent to the defendant's insurance carrier. The Ohio Casualty Group, hereafter called Ohio, by or on behalf of the plaintiff's insurance carrier, United Security Insurance Company, whom we shall refer to as United, and the replies which were sent by Ohio in response to the letters of United.

Objections to the plaintiff's request for admissions were filed by the defendant on March 4, 1969. Neither the plaintiff's request for admission of facts and genuineness of documents, nor the defendant's objections filed thereto, have ever been ruled on by the trial court and, so far as we can tell from the record, they both are now hanging around in limbo.

Nonetheless, the trial court on March 7, 1969, heard arguments on the defendant's motion for judgment on the pleadings. The record itself does not indicate whether the court was aware, at that time, of plaintiff's request for admissions, but we are advised by plaintiff in his brief that during oral argument the plaintiff requested that the hearing be stayed until discovery could be completed as to the facts and circumstances surrounding execution of the purported release. Be that as it may, the trial court on March 18, 1969, sustained defendant's motion for judgment on the pleadings without ruling upon or even mentioning the plaintiff's request for admission.

Following the sustaining of defendant's motion for judgment on the pleadings, the plaintiff filed a 'motion for rehearing to allow plaintiff to further plead and to substitute proper party plaintiff.' Attached to this pleading as an exhibit was an amended petition with United substituted as party plaintiff, setting up its subrogation claim. This motion was overruled and the request to file an amended petition was denied by the court as of March 28, 1969. The present appeal was thereupon filed.

The first point raised on appeal is that the trial court acted prematurely in sustaining the defendant's motion for judgment on the pleadings. K.S.A.1969 Supp. 60-212(c) provides that after the pleadings are closed any party may move for judgment on the pleadings; that if matters outside the pleadings are presented and not excluded by the court, the motion shall be treated as one for summary judgment and all parties shall be given reasonable opportunity to present all material made pertinent to the motion. A motion of this character, as we find from the text in 3 Barron & Holtzoff, § 1240, p. 180, 'is based upon the ground that the moving party is entitled to a judgment on the face of the pleadings themselves.'

We are inclined to agree that the trial court was hasty in ruling on and sustaining the defendant's motion for judgment on the pleadings. The answer set up, as a defense, the execution of a release, which is an affirmative defense of new matter. (41 Am.Jur., Pleading, § 159, pp. 403, 404; 45 Am.Jur., Release, § 40, pp. 703, 704.)

K.S.A. 60-208(c) provides that in pleading to a preceding pleading, a party shall set forth affirmatively certain defenses which are expressly specified and 'any...