Tuggle v. Cathers, 38838

• Decision Date: 07 March 1953
• Docket Number: No. 38838,38838
• Citation: 174 Kan. 122,254 P.2d 807
• Parties: TUGGLE et al. v. CATHERS.
• Court: Kansas Supreme Court

Page 807

254 P.2d 807

174 Kan. 122

TUGGLE et al. v. CATHERS.

No. 38838.

Supreme Court of Kansas.

March 7, 1953.

Syllabus by the Court.

The record in an action for wrongful death occasioned by a collision between two automobiles examined, and held: (a) The demurrer to the plaintiff's evidence was properly overruled; (b) defendant's motion for judgment non obstante veredicto was properly overruled; and (c) the judgment is supported by the pleadings, evidence and general verdict of the jury.

Milton Zacharias, of Wichita, argued the cause, and Vincent F. Hiebsch, Kenneth H. Hiebsch, J. R. Sheedy, Yale W. Gifford and Richard A. Render, all of Wichita, on the briefs, for appellant.

Richard L. Becker, of Coffeyville, argued the cause, and Morris D. Hildreth, of Coffeyville, on the briefs, for appellee.

WERTZ, Justice.

This is an action brought by the administratrix of a decedent's estate for damages for the alleged wrongful death of the decedent, resulting from a collision of two automobiles. The plaintiff recovered and defendant appeals, assigning two separate specifications of error: (1) In overruling defendant's demurrer to plaintiff's evidence and (2) in overruling defendant's motion for judgment non obstante veredicto.

Except as they define the issues, the pleadings are unimportant and require little attention. All that need be said respecting them is that the petition alleged the action is brought by the plaintiff as administratrix of the estate of Charles Tuggle, deceased; that there is an overpass on U.S. Highway 166, a short distance west of Coffeyville, Kansas; that the overpass is concrete and is 23 feet 10 inches wide between curbs with concrete banisters and protective railings on each side of the overpass; that prior to the time of the collision alleged, the defendant, Kenneth King Cathers, was under the influence of intoxicating liquor and in such a condition that he was not in full control of his faculties while operating his automobile; that about 12:30 o'clock a. m. on the 14th day of September, 1951, the deceased, Charles Tugggle, was driving his automobile in a westerly direction on the north side of the highway on said overpass; that at the time and place defendant Cathers was driving his automobile in an easterly direction at a high and dangerous rate of speed, and while under the influence of intoxicating liquor; that the defendant saw or should have seen the Tuggle automobile, but because of his intoxicated condition and excessive speed was unable to properly guide and control his automobile, and that at a point approximately 99 feet east of the west end of the bridge portion of said overpass, the defendant turned to the left, crossed to the north of the center line of said bridge and into the automobile driven by Charles Tuggle, deceased, striking it with the left front of defendant's automobile to the rear of the front bumper on the left side, driving the rear portion of the automobile of the deceased into and against the north banister of the overpass bridge; that the acts of defendant were reckless and careless.

Defendant answered by way of a demurrer to the petition, and a general denial, and alleged that if the said Charles Tuggle, deceased, died as a result of injuries received in the collision, such injuries were due to the contributory negligent acts of the decedent, which were the direct and proximate cause of his death, and that the collision was the result of an unavoidable accident, and alternative allegations of last clear chance on the part of the plaintiff to avoid the collision.

Plaintiff's reply was a general denial.

At the outset it may be stated that plaintiff challenges the right of the defendant to be heard on his first specification of error, i. e., that the trial court erred in overruling defendant's demurrer to the plaintiff's evidence on the ground that no motion for a new trial was filed and, in the absence of such a motion, it is not within the scope of appellate review.

G.S.1949, 60-3302, Second, provides that an order that sustains or overrules a demurrer is an appealable order. It is not necessary for the party, against whom the ruling is made, to file a motion for a new trial as a basis for appeal from an order sustaining or overruling a demurrer to the evidence. In cases where the ruling on a demurrer precedes a judgment, and the appeal from the judgment is taken in time, this court will consider any possible error arising by reason of the ruling on the demurrer even if no separate appeal has been taken, provided such possible erroneous ruling is one of the specifications of error. Stinson v. McConnell, 160 Kan. 1, 159 P.2d 406; Walton v. Walton, 170 Kan. 13, 223 P.2d 997; West's Kansas Digest, Appeal and Error, k291; 1 Hatcher's Kansas Digest [Rev.Ed.], Appeal and Error, § 21.

In the instant case, the ruling on the demurrer preceded the judgment, the appeal from the judgment was taken in time, and the alleged erroneous ruling (on the demurrer) was one of the specifications of error. Plaintiff's objection to the defendant's right to be heard on this specification of error is not well taken.

Was there sufficient evidence of defendant's negligence to require the submission of that issue to the jury? Plaintiff's evidence, construed in the light most favorable to her, as it must be on a demurrer, in substance disclosed:

The collision occurred on an overpass west of Coffeyville, Kansas, about 12:30 a. m., September 14, 1951. The deceased was driving his automobile in a westerly direction and the defendant was driving his automobile in an easterly direction. The collision took place about 100 feet east of the west end of the 'bridge' portion of the overpass and about 200 feet west of the crown of the overpass. The left front of defendant's automobile struck the left side of decedent's automobile just back of the front humper. The blow from the defendant's car swung the rear of the automobile of the decedent to the north and onto the banister to his right side. From the center of the highway at the approximate area of the impact to the mark made by the right rear wheel of the decedent's automobile where it had been spun around was about 25 feet in a northeasterly direction. The final resting place of the automobile of the deceased was about 35 feet due west of the general area of the collision. This area was about 200 feet west of the center or crown of the overpass, showing the decedent's automobile was traveling down hill, and defendant's automobile was traveling up hill at the place of the collision and continued traveling up hill until it came to rest on its top. Defendant's automobile traveled approximately 75 feet after the impact and struck the south railing of the overpass in a number of places, knocking a chunk out of one post, and finally upsetting.

Police Officer Simpson testified that at 11:30 p. m., about one hour before the collision occurred, he found the defendant in the kitchen of a cafe sitting at a table with a one-half pint bottle of whiskey half full; that when he asked defendant to move his automobile parked behind the cafe, he noticed that defendant was 'sort of slow-like and kind of weaved-like.' In his opinion, defendant was intoxicated, so the officer moved defendant's car. Officer Simpson told defendant that he was too drunk to drive a car, and if he caught him in his car after that time he would pick him up.

Ethel Deal testified that she was working at the cafe that evening and was there when the officer told defendant not to move his car; that the officer told her not to let defendant drive the car; that he had been drinking; that after the officer left, defendant asked her to drive his car out to the highway; that she noticed defendant was sick, drunk or doped; and that later defendant did drive his car from the cafe out to the street and then turned on his lights; that defendant's eyes were red and bloodshot, and that he looked like he could not see very well. The defendant stated to her that he could drive better when he was drunk than when he was sober.

Mary Deal testified that she was working at the cafe on the night in question; that defendant asked her to drive him out of town, but she didn't reply as she didn't want to drive him any place.

Immediately before the collision, decedent passed an automobile driven by one Earl Speece; deceased flashed his headlights indicating his desire to pass, and was driving 40 or 45 miles per hour. After passing Speece, he drove his automobile onto the right lane of traffic and proceeded onto and over the overpass on his right side of the road. Witness Speece could see decedent's autombile immediately before the collision and it appeared to be still on its right side of the road.

Highway Patrolman Hazlett testified he made an investigation shortly after the collision and, in his opinion, the decedent's car was trying to get away from defendant's car, and that defendant's car hit decedent's car on the left side just behind the left front wheel. The witness further testified that from an examination of the decedent's car, the impact was just in front of the left front door and just back of the bumper on the left side, and in his opinion defendant's car ran into the car of decedent. There were no skid marks showing application of brakes.

At the close of plaintiff's evidence, def...