Thompson v. Aultman & Taylor Mach. Co.

• Citation: 94 Kan. 453,146 P. 1188
• Decision Date: 06 March 1915
• Docket Number: 19277
• Parties: THOMPSON v. AULTMAN & TAYLOR MACH. CO. ET AL.
• Court: Kansas Supreme Court

146 P. 1188

94 Kan. 453

THOMPSON v. AULTMAN & TAYLOR MACH. CO. ET AL.

No. 19277

Supreme Court of Kansas

March 6, 1915

Syllabus

A court may allow the plaintiff to file a reply, consisting of a general denial, after the case is called for trial, and then compel the defendant to go on with the trial, in the absence of a showing that he is not ready, or that he has been misled, or that he will be prejudiced thereby.

In an action for damages for personal injury, an allegation in a petition that the plaintiff was thrown out of a buggy, to the ground, on her head and arms, breaking her right forearm, throwing the wrist of her right arm out of place, filling her head and scalp with gravel, and “severely injuring and bruising her in all parts of her body and putting her in danger of her life,” is sufficient to permit proof of permanent injury to her ear.

It is not error to refuse to give proper instructions, requested when the court gives the same, or substantially the same instructions in the general charge to the jury.

An instruction which assumes that the result or consequence of negligence is itself the act of negligence is properly refused.

Appeal from District Court, Sedgwick County.

Action by Ada Thompson against the Aultman & Taylor Machine Company and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Marshall and West, JJ., dissenting.

Adams & Adams, of Wichita, for appellants.

Souders & Souders, of Wichita, for appellee.

OPINION

MARSHALL, J.

This is an action for personal injury. The plaintiff was injured in an automobile accident. The automobile was driven by C. H. Glazier, agent of the Aultman & Taylor Machine Company, while in their employ and engaged in their business. Glazier ran into the plaintiff on a public highway. Negligence in driving the machine was alleged, and found by the jury. The defendants appeal.

Defendants complain that the court committed error in permitting plaintiff to file a reply, consisting of a general denial, after the case was called for trial, and compelling the defendants to go to trial at that time. They also complain of error in the admission of evidence, and of error in overruling defendants’ demurrer to plaintiff’s evidence. Further complaint is made of the refusal to give instructions asked for, and of those given. Another complaint is that the court committed error in denying a motion for a new trial. These are presented in three propositions in appellants’ brief: Error in compelling defendant to go to trial after the filing of the reply; error in the admission of evidence; and error in refusing to give and in giving instructions.

There was no error in refusing a continuance, and compelling the defendants to go to trial after a reply, consisting of a general denial, had been filed, although filed after the cause had been called for trial. The petition was filed May 28, 1913. The answer was filed some time thereafter. The case was called for trial and the reply filed December 15, 1913. No new element was introduced into the case by the reply. The petition was not changed. The answer was the same as at first. The reply merely compelled the defendants to prove any affirmative defense that they may have alleged. This ought to have been anticipated. No such showing was made that the defendants could not be ready for trial, as is contemplated in section 143 of the Civil Code (Gen. St. 1909, § 5736). Section 313 of the Civil Code (section 5907), provides that actions shall be triable on the issues of fact in 10 days after the issues are made up. The defendants contend that the issues were not made up until the day of trial, when the reply was filed. The case stood ready for trial under the Code 10 days after the time for filing a reply. It was within the discretion of the court to permit a reply to be filed and then compel a trial of the cause. The practice of permitting a reply, consisting of a general denial, to be filed on the trial, is too general in this state to reverse a judgment because such reply was filed, when it could not have misled or prejudiced the opposing side. Taylor v. Hosick, 13 Kan. 518, 526; Grant v. Pendery, 15 Kan. 236, 241; Wright v. Bacheller, 16 Kan. 259, 266; City of Burlingame v. National Bank, 17 Kan. 407, 408; Rice & Floyd v. Hodge Bros., 26 Kan. 164, 168.

The principal contention is as to the admission of evidence concerning an injury to the plaintiff’s ear. The petition alleges that the automobile struck the buggy, injured the plaintiff, and caused the horse drawing the buggy to run away and upset the buggy, and throw the plaintiff out to the ground, on her head and arms, breaking her right forearm, throwing the wrist of her right arm out of place, filling her head and scalp with gravel, and "severely injuring and bruising her in all parts of her body and putting her in danger of her life," but does not say anything about any injury to her ear.

The defendants filed a motion asking:

"That the plaintiff be required to make her petition more definite and certain in the language as follows: ‘Severely injuring and bruising her in all parts of her body and putting her in danger of her life.’ "

This motion was denied. The plaintiff contends that the defendants have waived their right to complain of the order denying this motion, because the plaintiff afterward amended her petition in other respects, and no motion to make the amended petition more definite and certain was filed. The original petition was amended in minor points by interlineation. No change was made in the allegations of the petition, so far as the injuries sustained by the plaintiff were concerned. On the trial, the plaintiff introduced evidence to prove that one of her ears had been permanently injured. To this the defendants strenuously objected, because that injury was not alleged in the petition. Some time before the trial, when is not disclosed, the defendants learned of the injury to the ear from a physician who had made an examination of the plaintiff. Was it necessary to allege more specifically the injury to plaintiff’s ear, in order that she might recover for that injury, under the circumstances of this case? An allegation of "severely injuring and bruising her in all parts of her body...