The City of Kansas City v. Simpson
| Decision Date | 08 July 1899 |
| Docket Number | 11170. 11171 |
| Citation | 57 P. 938,60 Kan. 684 |
| Parties | THE CITY OF KANSAS CITY, KANSAS, v. NATHANIEL S. HART AND S. N. SIMPSON. S. N. SIMPSON v. NATHANIEL S. HART AND THE CITY OF KANSAS CITY, KANSAS |
| Court | Kansas Supreme Court |
Decided July, 1899.
Error from Wyandotte court of common pleas; W. G. HOLT, judge.
Judgment reversed and causes remanded.
T. A Pollock, city counselor, and F. D. Hutchings, city attorney for plaintiff in error.
True & True, for defendant in error S. N. Simpson.
Dail & Bird, for defendant in error Nathaniel S. Hart.
Nathaniel S. Hart brought an action against the city of Kansas City, Kan., S. N. Simpson, and others, in which he alleged that Simpson and others, with their servants and employees, in digging out and hauling sand from a sand-bank in one of the alleys of Kansas City, undermined the sand-bank, leaving a large body of earth overhanging and liable to cave in and fall upon persons passing through the alley; that the defendants knew, or should have known, of the perilous condition of the excavation, and also that small children were in the habit of playing in the alley and in and about the excavation; that on October 18, 1894, the defendants left the excavation so made in such a negligent and dangerous condition "that suddenly and without warning it fell upon the eleven-year-old child, a daughter of this plaintiff, of the name of Daisy Hart, and did so crush, wound and bruise her that she did then and there die; that plaintiff, by reason of the death of said child, so carelessly and negligently killed by said defendants, has been deprived of the love, care and assistance of said child, and deprived of the labor and earnings of said child from said date until she became twenty-one years old; also, that by reason of the sudden death of said child, plaintiff's wife, the mother of the said child, has been made sick and unable to do the housework, and plaintiff has thereby been compelled to and does keep help to do the work necessary about the house; that by reason of the death of said child the plaintiff has been damaged in the sum of $ 10,000," for which he asked judgment. Afterward, and on motion of the defendants, the court struck out the averment of damages resulting from the sickness and loss of services of the child's mother. The defendants answered separately, alleging a misjoinder of parties, a want of power in the plaintiff to prosecute the action, and the contributory negligence of Daisy Hart and her parents.
The action was commenced on December 28, 1895, and came on for trial on December 9, 1896, more than two years after the injury and death of Daisy Hart. On an objection to evidence the plaintiff then asked and obtained leave to amend his petition in order that he might recover under the statute as the next-of-kin of the deceased child. By interlineation he amended, alleging the residence of Daisy Hart at the time of her death, that no personal representative had been appointed, and that the plaintiff was her father and the next-of-kin. A demurrer of the defendants to the sufficiency of the amended petition was confessed by the plaintiff, and he then, upon leave of court, amended his petition as follows: "That Daisy Hart at the time of her death, as hereinafter alleged, was a resident of this state, that no personal representative has been appointed for her estate, and that she left no husband surviving her, but did leave surviving her her mother and her father, who is plaintiff in this action, and that her mother died on the 21st day of September, A. D. 1896, and the plaintiff is the next-of-kin of said Daisy Hart, deceased."
The amendment was made on January 26, 1897, and on February 5, 1897, a motion was made to strike the amended petition from the files on the ground that the amendment was a substantial departure, both in law and in fact, from the cause of action originally set up, but the motion was overruled. The objections that the amended petition constituted a departure from the original and set up a new cause of action which was barred by the statute of limitations were raised by answer and in various ways, but were not sustained. The trial resulted in a judgment rendered against the city and S. N. Simpson jointly for $ 4000, and the city and Simpson complain of the rulings of the court and bring them up for review in two separate proceedings in error.
Hart asks for a dismissal or abatement of the proceedings, because the city and Simpson did not unite in bringing a single proceeding for review. It would seem that both might have joined in bringing the case to this court, and in that way avoided the trouble and expense of more than one proceeding. This is certainly the better practice when it can be done, but it is not practical where the complaining parties have distinct and conflicting interests. When the interests are not identical, or the parties against whom judgment has been rendered are really adverse toward each other, there may be good reasons why one should refuse to unite with the other. In such cases, either may make the other a defendant in error, and as such he ordinarily can fully present his errors and protect his separate interests upon a cross-petition in error in that proceeding. So far as we can discover, that practice might have been followed in this case. All parties against whom a joint judgment has been rendered are necessary parties to a review, and the failure to join them, either as plaintiffs or defendants, is generally ground for dismissal. These proceedings, however, are not subject to that objection, as Simpson has been made a defendant in error in the proceeding brought by the city of Kansas City, and the city of Kansas City a defendant in error in the one brought by Simpson. All the parties are before the court in each of the proceedings, and the fact that there are two proceedings would not warrant a dismissal of both. Possibly a question might ultimately arise as to the matter of costs, if the proceedings result against the judgment creditor, but as the parties have not been heard on that proposition it will not be determined at this time.
The first and controlling question on the merits of the case arises on the amendment of the plaintiff's petition. The original petition set up a claim by the plaintiff for a loss of services of his daughter resulting from the negligent action of the defendants, while the amendment alleged a claim by plaintiff, as next-of-kin, for damages resulting from the death of Daisy Hart. The original petition alleged a claim under the common law, while the amended petition set forth a claim for death, the right to maintain which is given only by statute. (Civil Code, § 422; Gen. Stat. 1897, ch. 95, § 418; Gen. Stat. 1889, P 4518.) As will be observed, the amendment was filed about two years and three months after the injury and death, and actions to recover for death are barred by the statute of limitations in two years after the death occurs. It, therefore, became a material question whether the two-year period of limitation was reckoned from the date of the filing of the original petition or from the date of the filing of the amended petition. If the amendment was permissible and relates back to the filing of the original, the action was not barred. On the other hand, if it alleged a new and different right of action, which constituted a departure either in law or fact, the bar of the statute is as available as if the amendment were a new and independent action. The averments of the original petition clearly indicate an attempt to state a common-law liability, and this was the view taken by the trial court, who in his instructions told the jury that the original petition upon its face merely contained allegations which constituted a cause of action at common law, and did not set up a cause of action under the statute. While holding this view, the trial court permitted oral testimony as to the intention of the plaintiff's attorney in drawing the pleading--whether he intended to state a cause of action under the common law or under the statute, and upon this testimony submitted to the jury the question whether the cause of action sued on originally was the same cause of action set out in the amended pleading. In holding this view the trial court doubtless felt bound by and followed the rule in Ball v. Biggam, 6 Kan.App. 42, 49 P. 678, a decision which we cannot approve.
We are clearly of the opinion that the effect of a pleading is to be determined by its averments, and not by the statements of the pleader as to what he intended that it should contain. As was said in Haley v. Hobson, 68 Me. 167, ...
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