Twichell v. Hetzel
| Decision Date | 23 January 1937 |
| Docket Number | 33163.,33162 |
| Citation | 145 Kan. 139,64 P.2d 557 |
| Parties | TWICHELL v. HETZEL et al. (two cases). |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Public motor carrier's statutory bond held "liability insurance policy" for protection of public from negligent conduct of vehicle operator, and not "indemnity bond" to reimburse loss sustained in paying judgment rendered against him on account of negligence, and hence action for injuries or damage to property caused by negligent operation of motor carrier may be brought directly against negligent motor carrier and statutory surety as an action in tort (Rev.St.1923, 60--601; Rev.St.Supp.1933, 66--1,128).
A "liability insurance policy" is one that indemnifies against condition of being liable, and such a policy is to be distinguished from one which indemnifies against ultimate established loss resulting from final enforcement of liability.
The bond required by R.S.1933 Supp. 66--1,128 to be given by a public motor carrier before receiving his license as such is a liability insurance policy for the protection of members of the public from negligent conduct of the motor vehicle operator, and is not an indemnity bond to reimburse the loss sustained in paying judgments rendered against him on account of negligence; and an action by a party to recover for injuries to his person or property caused by the negligent operation of a public motor carrier may be brought directly against both the negligent motor carrier and the statutory surety. Such an action is one in tort, and its necessary allegations do not constitute a misjoinder of causes of action, nor are they out of harmony with the provisions of R.S. 60--601.
Appeal from District Court, Douglas County; Hugh Means, Judge.
Two actions by Ralph Twichell and by Eugene V. Twichell against Park Hetzel, Jr., and others. From judgments overruling demurrers to the amended petitions in each case, one of the defendants appeals.
Hugh C Larimer, of Topeka, for appellant.
Elmer E. Martin, of Kansas City, and J. B. Wilson, of Lawrence, for appellees.
These two separate actions were for damages resulting from a collision of an automobile with a licensed truck on the state highway. One action was by the owner and driver of the automobile and claimed damages for injuries to himself and also to the automobile, and the other was by a passenger in the same car who claimed damages for injuries to himself. Both cases referred to the same accident, alleging negligence of the driver as the cause of the accident, and both made the same parties defendants, viz., the owner of the licensed truck, the driver thereof, and the insurance carrier.
The amended petition in each case set out portions of the insurance bond, and a copy of the indorsement addressed to the state corporation commission was attached to the insurance bond outlining in part its obligations under the bond to which it was attached. The insurance company demurred to the amended petition in each case for the reason that it failed to state a cause of action against this defendant and in favor of the plaintiff, and for the further reason that the same is contrary to law and a misjoinder of causes of action. The trial court overruled both these demurrers, and from those rulings the insurance company has appealed in both cases.
The appellant claims that although the petition in each case set out all the allegations against all of the parties defendant in one cause of action, yet they in fact contain two separate and distinct causes of action, one in tort and the other on contract, urging that the only liability of the insurance carrier was under its contract, and questioning the right of the plaintiff to unite these causes of action in one suit mingled together in one cause of action, or even separated into two causes of action joined as such in one suit. Appellant cites in this connection R.S. 60--601, which is as follows:
In the same connection appellant calls attention to the language of this section before the revision of the Code in 1909 where the original section only permitted the uniting of several causes of action in the same petition provided they arose out of certain classes or groups of transactions or affairs. This provision or condition has been entirely eliminated in the amendment, and appellant cites three cases that were decided while the old law was in effect, namely, Benson v Battey, 70 Kan. 288, 78 P. 844, 3 Ann.Cas. 283; Chase v. Railway Co., 70 Kan. 546, 79 P. 153; and Haskell County Bank v. Bank of Santa Fe, 51 Kan. 39 32 P. 624. The first one of those cited was where a cause of action against two of the defendants was joined in the petition with a cause of action at law to recover damages in tort against another defendant not affected by the first cause of action, and it was held that such causes of action could not be properly joined and that a demurrer for misjoinder should be sustained even if the allegations were blended and commingled in one statement. Similar views were expressed in the second case cited above, although there was no demurrer filed to the petition and one portion of it was held to be surplusage, the plaintiff having sued the railroad company for damages by reason of being ejected from one of its trains, under one cause of action claiming the right of a passenger, and further alleging that the company violated its contract of carriage when it sold the plaintiff a ticket. The third case above cited was where the petition included an action for recovery of damages against a number of defendants for a fraudulent conspiracy, and it was joined with an action to obtain a cancellation of a certificate of deposit held by one of the defendants. In the opinion it was specifically stated that both actions did not grow out of the same transaction, as required by the old statute, and that the statute required that the causes of action so united must all belong to one of those classes. Besides in the first and last of these three cases all the defendants were not affected in both causes of action.
The case of Dunn v. Jones, 143 Kan. 218, 53 P.2d 918, is cited, and it contains valuable reasoning and discussion as to the liability of an insurance carrier for a motortruck. However, the demurrer of the insurance company to the petition because of misjoinder of causes of action was not discussed, it having been confessed by the plaintiff, but the relation of the insurance carrier to the owner of the motortruck is of great assistance in the matter for consideration in this case. The following statements from the...
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...114 Fla. 820, 153 So. 304 (1934); Zieman v. U.S. Fidelity & Guaranty Co., 214 Iowa 468, 238 N.W. 100, 102 (1931); Twichell v. Hertzel, 145 Kan. 139, 64 P.2d 557, 559 (1937); Dunn v. Jones, 143 Kan. 218, 53 P.2d 918, 921 (1936); Globe Indemnity Co. v. Sulpho-Saline Bath Co., 299 F. 219, 221 ......
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...recognizes, concedes, and accepts the force and effect of our decisions in Dunn v. Jones, 143 Kan. 218, 53 P.2d 918; Twichell v. Hetzel, 145 Kan. 139, 64 P.2d 557, and Fitzgerald v. Thompson, 167 Kan. 87, 204 P.2d 756, as well as numerous other decisions cited in the opinion of the latter c......
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... ... Our decisions have definitely determined ... that question, see, Schoonover v. Clark, 155 Kan ... 835, 837, 130 P.2d 619; Twichell v. Hetzel, 145 Kan ... 139, 64 P.2d 557; Fisher v. Central Surety & Ins ... Corp., 149 Kan. 38, 45, 86 P.2d 583, and Dunn v ... Jones, 143 ... ...
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