Talbott v. Farmers Union Co-op Elevator

• Decision Date: 09 May 1953
• Docket Number: No. 38912,CO-OP,38912
• Citation: 256 P.2d 856,174 Kan. 435
• Parties: TALBOTT et al. v. FARMERS UNIONELEVATOR et al.
• Court: Kansas Supreme Court

Page 856

256 P.2d 856

174 Kan. 435

TALBOTT et al. v. FARMERS UNION CO-OP ELEVATOR et al.

No. 38912.

Supreme Court of Kansas.

May 9, 1953.

Syllabus by the Court.

In an action for wrongful death based upon the negligence of defendants in maintaining an attractive nuisance, the record is examined and it is held: (1) The allegations of the petition, liberally construed, were sufficient as against a motion for judgment on the pleadings, treated as a demurrer, to allege knowledge on the part of defendants; (2) the motion for judgment on the pleadings was properly overruled; (3) the amended petition, filed after the bar of the applicable statute of limitation had fallen, the additional allegations of which were merely an amplification of the allegations contained in the petition, is deemed to relate back to the date of filing of the petition; and (4) the demurrer to such amended petition was properly overruled.

Herbert A. Marshall, of Topeka (Allen Meyers, Philip C. Gault and Doral H. Hawks, all of Topeka, on the briefs), for the appellants.

Edward Rooney, Topeka (Jacob A. Dickinson, David Prager and Sam A. Crow, all of Topeka, on the briefs), for the appellees.

PRICE, Justice.

This is an action brought by the parents of an eight-year-old boy to recover damages for his wrongful death allegedly caused by the defendant elevator company and its manager in negligently maintaining an attractive nuisance in the form of an insecurely and defectively covered abandoned well on the elevator premises.

The petition, omitting formal parts, describes in detail the elevator premises in the city of Meriden and the open well located thereon, as to size, depth and the alleged partial covering of the same by a piece of light tin material, and then alleges:

'That said premises afforded an attractive playground and at different times at least half of the children of the City of Meriden played there; that great numbers of children played in and around said elevator and road and coasted on the driveways and on the entrance which was immediately against said well and adjacent to the driveway onto the scales where farmers weighed their grain; that said children rode their tricycles up and down the driveway and about this well; that said well was left open and in such condition was hazardous to the life of children playing in or about said premises and constituted an attractive nuisance and was a dangerous hazard to the lives of all young children.'

This is followed by allegations concerning the death of the boy resulting from his falling into the well while riding his tricycle on the premises, all of which is alleged to be the direct, immediate and proximate result of negligence and carelessness of defendants in maintaining the uncovered or insufficiently covered well on the premises where children were in the habit of playing.

Defendants' answer denies negligence on their part, denies that the well in question was an open well, alleges it was securely covered by a piece of corrugated metal, describing same, and further alleges the boy was guilty of contributory negligence and that plaintiffs were guilty of negligence in permitting him to wander from his home onto the elevator premises.

Included in the answer is a demurrer, the substance of which is that the petition does not state facts sufficient to constitute a cause of action against the defendants or either of them.

Shortly after the answer was filed plaintiffs filed a motion to have the court determine in advance of trial the sufficiency of the petition to state a cause of action. In other words, plaintiffs move for an immediate hearing on the demurrer contained in the answer.

The sole argument advanced by defendants at the hearing on the demurrer was that the petition

'does not sufficiently allege that the defendants maintained a nuisance which was both attractive and dangerous, or which constituted a dangerous attraction.'

The demurrer was overruled.

No appeal was taken from that ruling.

Plaintiffs then filed their reply in the form of a denial of the allegations contained in the answer.

In the meantime the two-year statute of limitation, G.S.1949, 60-3203, had run, and shortly thereafter defendants filed their motion for judgment on the pleadings.

This motion was overruled and at the same time the court, under the provisions and authority of G.S.1949, 60-759, granted to plaintiffs permission to file an amended petition within twenty days from date. This was done.

The only substantial difference between the petition and the amended petition is that in the latter plaintiffs alleged that defendants had knowledge of the fact that children habitually played on the elevator premises and that defendants had consented thereto.

Defendants demurred to the amended petition on the grounds it did not state facts sufficient to constitute a cause of action against defendants or either of them in that such pleading showed on its face that it was not filed until after the applicable two-year statute of limitation had expired.

This demurrer was overruled and defendants have appealed from such ruling, as well as from the order overruling their motion for judgment on the pleadings.

From one view of this case it appears that the appeal from the order overruling defendants' motion for judgment on the pleadings might very well be dismissed. It has been held repeatedly that such an order is appealable only when it can be said from the record that the motion is tantamount to a demurrer, and that where issuable facts are joined by the pleadings such a motion is not the equivalent of a demurrer, and an order overruling it is not appealable. Sullivan v. Paramount Film Distributing Corp., 168 Kan. 524, 213 P.2d 959, 14...