Truhlicka v. Beech Aircraft Corp.

• Decision Date: 08 March 1947
• Docket Number: 36744.
• Citation: 162 Kan. 535,178 P.2d 252
• Parties: TRUHLICKA v. BEECH AIRCRAFT CORPORATION.
• Court: Kansas Supreme Court

178 P.2d 252

162 Kan. 535

TRUHLICKA v. BEECH AIRCRAFT CORPORATION.

No. 36744.

Supreme Court of Kansas

March 8, 1947

Appeal from District Court, Sedgwick County; Robert L. NeSmith Judge.

Action by Henry Albert Truhlicka against the Beech Aircraft Corporation, a corporation, to recover damages for injuries. From a judgment sustaining defendant's demurrer to plaintiff's amended petition, the plaintiff appeals.

Judgment reversed.

HARVEY C. J., and BURCH, J., dissenting in part.

To render the res ipsa loquitur doctrine inapplicable, the facts must warrant a reasonable conclusion that some cause other than defendant's negligence caused the injury, such as an intervening cause.

Syllabus by the Court.

1. In a common-law action for damages brought by an employee of a subcontractor against the principal with whom the subcontractor had a contract, for injuries alleged to have been caused by the negligence of the agent of the principal it is held that the facts alleged in the petition did not compel a conclusion that the work being performed by the plaintiff was a part of the trade or business of the defendant so as to require the injured workman to make an application for workmen's compensation pursuant to the provisions of G.S.1935, 44-503.

2. In an action such as that described in the foregoing syllabus, the record is examined and it is held that the petition stated a cause of action under the doctrine of res ipsa loquitur.

Carl I. Winsor, of Wichita (Harlin E. Bond and Rupert Teall, both of Wichita, on the brief), for appellant.

William C. Hook, of Wichita (Claude I. Depew, W. E. Stanley, Lawrence Weigand, Lawrence E. Curfman, Byron Brainerd and William C. Kandt, all of Wichita, on the brief), for appellee.

SMITH Justice.

This was an action to recover damages for personal injuries. Judgment was for defendant sustaining its demurrer to plaintiff's amended petition. The plaintiff has appealed.

The amended petition alleged that defendant was a corporation licensed to do business as a concern manufacturing airplanes; that on January 3, 1945, without fault on his part, plaintiff was injured as the proximate result of the negligence of employees of defendant; that plaintiff is a painter by trade and on January 3, 1945, was employed by one Ed Coultis who was working under a separate contract employing several men, among them plaintiff, painting a building of defendant known as Plant Number One. The petition then contained allegations which on account of their importance in this appeal will be set out here, as follows:

'That on January 3rd, 1945, at about 10:00 a. m. this plaintiff was on a ladder, at or near the top thereof, which ladder was approximately thirty feet in height, at work, painting over his head, holding his paint brush in his right hand; that there is, and was at all times pertinent herein, an overhead traveling crane in said Plant Number One; that said crane, and the tracks upon which it ran, and operated, were at about the same height, above the floor, as was this plaintiff, as he worked, painting over his head, as aforesaid, on said ladder; that at said time and place, while this plaintiff was at work, the operator of said traveling crane, one, Bartel, then and there the duly authorized and acting agent, servant, and employee, of the defendant company, and at the direction of the defendant, suddenly, and without any warning of any kind or character, started said crane in motion, and ran said crane toward, onto, and against this plaintiff; that at all times pertinent herein the plaintiff upon his ladder, was in full, plain and unobstructed view of said crane but that notwithstanding said facts, said operator, Bartel, continued to operate and propel said crane toward, upon, and into this plaintiff, in such manner as to catch, and enmesh the right hand and arm of this plaintiff in the machinery of said crane, mangling said right hand and arm, simultaneously knocking the ladder upon which the plaintiff had been working to the floor, thus leaving the plaintiff hanging by his right hand and arm; that before the plaintiff's helper could raise the fallen ladder to attempt to rescue the plaintiff, said defendant company, acting by and through its duly authorized and acting agent, servant, and employee, the said crane operator, Bartel, so manipulated the machinery of said crane that the plaintiff was freed from said crane, and was dropped with great force and violence to the concrete floor approximately thirty feet below;

'The plaintiff further alleges that said accident and resulting injuries to him were the result of the carelessness and negligence of the defendant company as follows:

'(a) By reason of the carelessness and negligence of said crane operator in using and operating said overhead crane, and the carelessness and negligence of said defendant company in maintaining said overhead crane.

'(b) Plaintiff says he does not know and it is not within his knowledge whether said accident was caused by improper or defective equipment of said defendant company or by the improper, negligent and careless operating of said overhead crane by said Bartel, but that the same is within the knowledge of the defendant company.'

The foregoing is referred to in the record and in this opinion as paragraphs 5(a) and 5(b).

Damages were asked in the amount of $89,000.

To this amended petition the defendant first interposed a motion to require the plaintiff to make his petition more definite and certain in certain particulars, also a motion to require the plaintiff to elect whether he would rely for recovery on the specific negligence charged in his amended petition or on the character and fact of the accident alone, as alleged in paragraph 5(b) of his amended petition.

On the argument of this motion counsel for plaintiff announced in open court that the cause of action in plaintiff's amended petition was based upon the doctrine of res ipsa loquitur exclusively. Counsel for plaintiff also advised the court by letter that plaintiff asked leave to amend his amended petition by striking therefrom the words 'willfulness' and 'wantonness.' This leave was granted.

The first paragraph of the motion of defendant to require plaintiff to make his petition more definite and certain asked that he state how and in what manner the defendant was negligent, careless, willful and wanton. This pargraph of the motion was overruled because of the election to proceed under the doctrine of res ipsa loquitur and the striking from the petition of the above words.

In paragraph 2 of the motion to make definite and certain defendant asked that plaintiff be required to state upon what rung of the ladder he was standing at the time of his injury. The trial court overruled this motion on the ground that it would require the plaintiff to plead his evidence.

In the third, fourth and fifth paragraphs of the motion defendant asked that plaintiff be required to state what part of the crane ran against the ladder, what part of the crane caught the hand of plaintiff and what part of the crane knocked the ladder to the floor. These were all overruled because the plaintiff had announced that he intended to rely upon the doctrine of res ipsa loquitur.

In paragraph six of the motion defendant asked that plaintiff be ordered to state how he was dropped and thrown to the floor by the crane. The trial court overruled this motion because plaintiff asked and was given leave to strike the word 'thrown' from his petition.

In the seventh paragraph of the motion defendant asked that the plaintiff be ordered to state with definiteness and certainty in subsection (a) of the fifth paragraph what the carelessness and negligence of the crane operator was. The court overruled this motion because the plaintiff had expressed intention to rely upon res ipsa loquitur exclusively.

In the eighth paragraph of the action defendant asked that plaintiff be required to state how the acts described were willful, wanton, grossly careless and negligent. This was overruled and defendant's motion to strike from the amended petition references to willfulness, wantonness and grossness was sustained.

Defendant asked in its motion that plaintiff be ordered to strike subsection (b) of the fifth paragraph for the reason that it constituted no part of an affirmative allegation of plaintiff's purported cause of action. This motion was overruled because plaintiff had announced that he was relying exclusively on the doctrine of res ipsa loquitur.

The defendant in its motion to strike also asked that the three paragraphs describing the injuries be stricken. This was overruled.

The motion of defendant to require plaintiff to elect whether he would rely for recovery on the specific acts of negligence charged in the amended petition or upon the character and fact of the accident alone as alleged in paragraph 5(b) of his amended petition was overruled because plaintiff had announced in open court that his cause of action was based exclusively on the doctrine of res ipsa loquitur.

The result of all these motions and the court's ruling on them was that the plaintiff was in court with a petition that stated he was at the top of a 30-foot ladder painting, with his back turned to the moving crane and an employee of defendant without warning ran the crane against the ladder, and knocked him down and caught the hand of plaintiff in the machinery, held him in the air for a while, then dropped him to the cement floor, injuring him.

Subparagraph 5(a) was out. All that remained of paragraph 5 was subparagraph 5(b). For the sake of emphasis it will be repeated here: '(b) Plaintiff says he does not know and it is not within his knowledge whether said accident was caused by improper...