Waddell v. Woods

• Court: Kansas Supreme Court
• Writing for the Court: BURCH, Justice.
• Citation: Waddell v. Woods, 160 Kan. 481, 163 P.2d 348 (Kan. 1945)
• Decision Date: 10 November 1945
• Docket Number: 36400.
• Parties: WADDELL v. WOODS.

163 P.2d 348

160 Kan. 481

WADDELL v. WOODS.

No. 36400.

Supreme Court of Kansas

November 10, 1945

Rehearing Denied Dec. 15, 1945.

Appeal from District Court, Shawnee County; Dean McElhenny, Judge.

Action by L. E. Waddell against Harold H. Woods, M.D., for malpractice. From an order denying plaintiff's motion for permission to file an amended petition, plaintiff appeals.

Affirmed with direction that judgment be entered for defendant.

Syllabus by the Court.

1. When this court, upon appeal, merely reverses a district court on its ruling in connection with a demurrer to a pleading, and no judgment is directed, the effect of the ruling by this court is the same for the purpose of further proceedings in the district court as if the district court had made the ruling, except that the district court has no authority to change or modify the ruling made by this court.

2. Where a previously-filed petition does not sufficiently allege any cause of action, and the applicable statutory period of limitation expires before an amended petition is filed, any cause of action alleged in the amended petition is barred by the statute of limitations.

3. When a second appeal is brought to this court in the same case the first decision is the settled law of the case on all questions involved in the first appeal and reconsideration will not be given to such questions.

H. C O'Reilly, of Cottonwood Falls (Edward Rooney, Jacob A Dickinson, and Edward Rooney, Jr., all of Topeka, on the brief), for appellant.

Ralph W. Oman, of Topeka (Robert Stone, James A. McClure, Robert L. Webb, and Beryl R. Johnson, all of Topeka, on the brief), for appellee.

BURCH, Justice.

The question in this appeal is whether the trial court erred in denying the plaintiff's motion for permission to file an amended petition. A petition filed previously in the same case was considered by this court on appeal from an order overruling a demurrer to the same and we reversed the district court. In so doing, we held in substance that such petition did not warrant application of the doctrine res ipsa loquitur and that such petition did not contain a sufficient allegation of negligence. The ruling of the trial court therefore, was reversed and the cause remanded with instructions to sustain the demurrer. We did not direct that judgment be entered for he defendant. See Waddell v. Woods, 158 Kan. 469, 148 P.2d 1016. The decision in the former appeal was filed as of May 6, 1944 and on the 5th day of January, 1945 the plaintiff filed a motion in the district court for permission to file a second amended petition and in connection therewith presented to the court such second amended petition. In denying the motion the district court signed a journal entry to the effect that the decision of this court in the former appeal precluded the district court from exercising any discretion in the matter and from exercising any jurisdiction, including that of granting the plaintiff permission to file the second amended petition. From such ruling the plaintiff has appealed.

The defendant has filed in this court a motion to dismiss the appeal. The first ground on which such motion is based is that the order refusing permission to file an amended petition was not a final appealable order. Such contention is not sound. The result of the order made by the district court is analogous in many respects to a demurrer having been sustained to the second amended petition. The order is a final disposition of the plaintiff's case unless the district court reverses its own order or it is reversed upon appeal. Consequently, the motion to dismiss the appeal cannot be sustained on such ground. The second ground of the motion to dismiss is that the plaintiff's second specification of error in this appeal is nothing more than a request for this court to re-examine and grant a rehearing in the former appeal. Examination of the second amended petition, however, discloses that it contains material allegations relating to acts of negligence which were not present in the petition which we considered in the former appeal. As a result the motion to dismiss the appeal must be denied.

Having disposed of the motion to dismiss the appeal, consideration must be given to the merits of the appeal. The proffered second amended petition could have been filed without leave of the district court, since no answer had been filed, under the authority of G.S.1935, 60-756. If the petition had been so filed, undoubtedly the defendant would have filed a demurrer thereto and it is reasonable to assume that one of the grounds of the demurrer would have been that the alleged cause of action, if any, was barred by the applicable statute of limitations. Ordinarily a plea that a cause of action is so barred is an affirmative defense and must be raised by proper pleadings. It can be raised by demurrer when the delay appears in the pleading. Candor commands the admission that the question of the statute of limitations has not been directly raised by the record in the present appeal. Therefore, the legal problem is not exactly the same as that which confronted this court in the case of McCue v. Franklin, 157 Kan. 668, 143 P.2d 646, because in such case the effect of the statute of limitations had been raised.

We have given consideration to the necessity of the statute of limitations either being plead as a defense or properly raised by demurrer in order that no impression may prevail that we are departing from such a rule in this case. The rule is not decisive of the appeal, however, because counsel for the plaintiff do not urge us to apply the rule. In all probability such counsel deliberately have omitted to do so because from a practical standpoint a reversal of the court's ruling for such a reason alone would result only in the litigation bobbing back and forth, as a cork on turbulent waters, between this court and the district court. The real question to be decided in order to be of aid to both the litigants is whether any cause of action which may be alleged properly in the second amended petition is barred by the statute of limitations.

1. Before giving consideration, however, to such a question it is necessary to discuss briefly the reasons assigned by the trial court for its ruling on the motion for leave to file the second amended petition. If by our silence we should give apparent approval to such reasoning an erroneous inference might result. When this court, upon appeal, merely reverses a district court on its ruling in connection with a demurrer to a pleading and no judgment is directed in behalf of either party, the effect of the ruling by this court is the same for the purpose of further proceedings in the district court as if the district court had made the same ruling without an appeal to this court. Under such circumstances the district court is not divested of any discretion it may have in connection with the filing of subsequent pleadings and is not precluded from exercising further jurisdiction in the pending case. In such instance the doctrine of res judicata does not rise to any greater height or expand to any greater extent by reason of the ruling having been made by this court rather than originally made in the district court. It is possible, of course, that a decision by this court in sustaining a demurrer to a pleading may be of such a nature as to make the rule of res judicata applicable in such a manner that amended pleadings could not thereafter be filed properly in the district court but it certainly does not follow that such a consequence must always occur. In support of their contentions to such effect counsel for the plaintiff cite Penquite v. General Accident, Fire & Life Ass'n, 126 Kan. 511, 268 P. 851; Burris v. Burris, 140 Kan. 208, 34 P.2d 127, 96 A.L.R. 432; Beloit Bldg. Co. v. Quinn, 141 Kan. 762, 44 P.2d 232; and In re Estate of Reed, 157 Kan. 602, 142 P.2d 824. Such cases are in point and are controlling in so far as they are applicable to the new allegations of negligence in the second amended petition. A different result occurs where a final judgment has been rendered on the merits but we do not have such a case before us. The reasons assigned by the trial court for its ruling upon the motion for leave to amend were incorrect but it does not follow necessarily that the ruling was incorrect. It is well established that the reasons given for a lower court's order are immaterial if its ruling is correct for any reason. See Quinton v. Kendall, 122 Kan. 814, at page 823, 253 P. 600, and In re Estate of Bond, 158 Kan. 776, at page 782, 150 P.2d 343.

2. The principal question involved in this appeal develops more logically if we consider first the new matter which was alleged in plaintiff's second amended petition. Such petition contained, among others, the following allegations which were not included in the petition considered by this court in the prior appeal: '* * * in reference to specific items of negligence against the defendant says: that from investigation and consultation with skilled men familiar with the methods and operation of X-ray machines, he is informed and believes and therefore alleges the fact to be that the defendant was negligent in that he used voltage that was not proper and of too high a frequency; that the application of the same was too close to the flesh of the plaintiff and that proper insulation and proper discs or mediums were not used to insulate and protect the defendant from burns; that the application of the X-ray was applied too long and so long that it caused the plaintiff to be burned that in addition thereto the apparatus was defective and not kept in good mechanical condition, in ways and manners not known to this plaintiff.' In the petition filed...