Waterbury v. Riss & Co., 37771

• Decision Date: 10 June 1950
• Docket Number: No. 37771,37771
• Citation: 219 P.2d 673,169 Kan. 271
• Parties: WATERBURY v. RISS & CO., Inc., et al.
• Court: Kansas Supreme Court

Page 673

219 P.2d 673

169 Kan. 271

WATERBURY v. RISS & CO., Inc., et al.

No. 37771.

Supreme Court of Kansas.

June 10, 1950.

Syllabus by the Court

1. In an action for wrongful death against four parties, in which plaintiff relied upon the doctrine of res ipsa loquitur, after the plaintiff introduced evidence which tended to show the death resulted from negligence of one or more of the defendants, defendants went forward with the proofs, each in an attempt to relieve itself from liability but tending to show that some one or more of the other defendants was liable, the record is considered and it is held: (1) When the evidence showed specific negligence the presumptions and inferences arising under the rule of res ipsa loquitur were no longer effective; (2) the burden of proof remained on plaintiff, but the question to be determined was whether the specific negligence shown by the evidence resulted in the death in question; (3) it was proper for the court upon the request of some of the defendants and over the objection of others to submit to the jury special questions as to each of them as to whether it was guilty of any specific negligence which was the proximate cause of the death in question; and (4) that there was substantial, competent evidence to support an affirmative answer to such questions with respect to each of those against whom judgment was rendered.

2. An employee of a contract carrier, operating under a license issued by the state corporation commission pursuant to our statute (G.S.1935, 66-1, 102, and specifically 66-1, 112a), is not an employee as a subcontractor of one doing business as a distributor of malt beverages, licensed by the director of revenue of the state commission of revenue and taxation, under G.S.1947 Supp. 21-2701 et seq., and doing business pursuant to those statutes and 79-3817 et seq.

J. B. Patterson, Wichita, A. W. Hershberger, Richard Jones, Wm. P. Thompson, and H. E. Jones, all of Wichita, on the briefs, for appellants Jake Burkhardt, Morris Sigman, Sam Sigman, Sam E. Rudd, Elenore Rudd, Leonard A. Levand, and Celia Levand.

Eugene G. Coombs, Wichita, Paul V. Smith, Douglas E. Shay, Robert F. Hudson, and Malcolm C. Black, all of Wichita, on the briefs, for appellant Rocky Mountain Industries, Inc.

Vincent F. Hiebsch, Wichita, Milton Zacharias, Eugene L. Pirtle, Kenneth H. Hiebsch, J. R. Sheedy and Lester C. Arvin, all of Wichita, on the briefs, for appellant Country Club Distributing Co., Inc.

Emmet A. Blaes, Wichita, W. D. Jochems, J. Wirth Sargent, Roetzel Jochems, Robert G. Braden, S. C. Durbin and E. P. Villepigue, all of Wichita, on the briefs, for appellee.

HARVEY, Chief Justice.

Plaintiff brought this action pursuant to G.S.1947 Supp. 60-3203 for the alleged wrongful death of her husband, Charlie Frederick Waterbury, hereinafter called Waterbury, alleged to have resulted from the negligence of defendant as joint tort-feasor. The action was brought for the benefit of plaintiff and Charlene Waterbury, aged eleven years, Waterbury's daughter by a former marriage. Riss & Company, Inc., was found by the jury not to be guilty of any negligence which resulted in Waterbury's death and no judgment was rendered against it. Each of the other defendants was found to be guilty of negligence which contributed to his death and judgment was rendered against them for the sum of $12,000. Each of them defended separately and have separately appealed.

We first set out the general statement shown by the record of the relationship of the parties and of the circumstances which resulted in the death of Waterbury. Details will be supplied later, as the necessity therefor appears. Some years prior to the incidents which gave rise to this action Jake Burkhardt, Morris Sigman, Sam Sigman, Sam E. Rudd, Elenore Rudd, Leonard A. Levand and Celia Levand bought the property formerly owned and used by the Jacob Dold Packing Company, which had ceased doing business at Wichita, and hold title thereto as tenants in common. They transacted their business under the name of Burkhardt & Sigman, and hereinafter will be so referred to. This property consists of about eleven acres of land upon which there were about fifteen buildings, most of them large, suitable for the storage of varied types of dry merchandise. Some of these owners lived in Denver, Colorado, and others in Wichita. One of them, Sam E. Rudd, was their manager. He had an office in one of the buildings and was there daily, or at such times as he needed to be, to look after and manage the property. One of these buildings is known as Building 'J'. It is a brick building, 125 feet square, with a brick will through its center from north to south, through which were two openings for the transfer of merchandise from one side of the building to the other. The buildings were served with railroad tracks and with driveways for trucks and other vehicles. Along the east side of building 'J' is a room spoken of as an annex to building 'J' which is 125 feet long and 16 feet wide. It had an opening about the center on the east and another one on the south, and also two openings in the wall between it and building 'J'. At the time of Waterbury's death all of these openings were closed except the one on the east. This annex was originally constructed of lumber on the east side and both ends. At sometime thereafter, but prior to the incident which gives rise to this action, Burkhardt & Sigman had a rebuilt those walls of the annex with cement blocks, used also for the foundation of the walls, which were covered with stucco on the outside. The floor of the building was made of bridge planks and so situated as to be from two to four feet above the ground and from near the center of the building for its full width, and for about thirty feet south there was an excavation under the floor six or eight feet deep.

Under the date of April 26, 1947, Burkhardt & Sigman executed a written lease to the Rocky Mountain Industries, Inc., hereinafter called Rocky Mountain, for building 'J' for a term of five years, and on the same date gave it written authority to sublet a part of the property. These instruments will be referred to later.

Rocky Mountain was operating a truck line depot and warehouse storage business and had for its manager Frank Barthelme. It had some business arrangement with Riss & Company which had trucks and a certificate authorizing it to haul merchandise. The specific terms of that relationship are not shown by the abstract and are not important here.

In November, 1947, Rocky Mountain orally leased the annex from month to month for a monthly rental of $110 to the Country Club Distributing Company, Inc., hereafter called Country Club. This is a Kansas corporation with headquarters at Wichita and was engaged in the wholesale distribution of Country Club beer in case lots, which they purchased in St. Joseph or Kansas City, Missouri, and had delivered to Wichita in trucks under a contract with the G. & W. Truck Lines, hereinafter called G. & W., which did a freight trucking business and had the appropriate state and federal certificates for conducting that business. G. & W. had trucks for the hauling of merchandise, but did not have a truck tractor and had an agreement with B. F. McReynolds for the rent of his truck tractor and the services of a driver. In hauling the beer McReynolds usually drove the truck himself. He also managed a filling station in Wichita. Waterbury was employed by McReynolds in operating the filling station. On the morning of the tragedy McReynolds had returned from St. Joseph with a truck load of beer which he had transported for G. & W. for Country Club. Under McReynold's agreement with G. & W. he was to assist in loading and unloading the cargo hauled. That morning he had something else to do and told Waterbury to deliver the truck load of beer to the annex for Country Club.

At that time cases of beer had been stored in the north end of the annex eight cases high, and near the wall at the south end the parties were storing beer in the aisle between the walls when the floor gave way. The cases of beer fell into the aisle and upon Waterbury, with the result that he was so injured that he died before he could be taken to a hospital.

In this court no complaint is made of the amount of the verdict. Neither is it contended that Waterbury was negligent in any respect which resulted in his death. Neither is it contended that plaintiff is not entitled to recover from some of the appellants. The real contest in the trial court below and here is which one, or if all, of the appellants are liable.

The G. & W. Truck Lines is operating under the Workmen's Compensation Act. After Waterbury's death his widow and child filed a claim for compensation against G. & W. under the compensation act. This claim was allowed in the sum of $4964 and was paid by G. & W. or its insurer. Pending this action in the trial court G. & W. and its insurer filed a motion to intervene and set up the facts and be subrogated to plaintiff in respect to any judgment plaintiff would receive in this action. That motion was denied. After judgment was rendered G. & W. and its insurer filed a claim in the district court to have the amount of it paid in a compensation proceeding out of the judgment recovered. That matter has not been passed upon and is not here for review.

In plaintiff's petition the pertinent portions of the above facts were alleged, and respecting the liability of defendants it was specifically alleged:

'At all times material hereto, the said building was directly and entirely under the management, control and possession of each and all of the defendants, and the defendants were jointly in complete control of the warehousing operations in the said building, and the defendants had assumed the responsibility for, and were purporting to discharge the duty of, keeping and maintaining the said building in a safe condition for the...