White v. Thompson

• Decision Date: 08 June 1957
• Docket Number: No. 40586,40586
• Citation: 181 Kan. 485,312 P.2d 612
• Parties: Vernon O. WHITE, Appellee, v. Guy A. THOMPSON, Trustee, Missouri Pacific Railroad Company, Appellant.
• Court: Kansas Supreme Court

Page 612

312 P.2d 612

181 Kan. 485

Vernon O. WHITE, Appellee, v. Guy A. THOMPSON, Trustee, Missouri Pacific Railroad Company Appellant.

No. 40586.

Supreme Court of Kansas.

June 8, 1957.

Syllabus by the Court

1. An order sustaining a motion to strike an affirmative defense pleaded in an amended answer and involving the merits of an action is tantamount to the sustaining of a demurrer, and is an appealable order.

2. A motion to strike an affirmative defense pleaded in an amended answer and involving the merits of an action will be denied if the defense is sufficient as a matter of law, and, for the purpose of a decision on a motion to strike such defense as insufficient in law, well pleaded allegations in the affirmative defense will be taken as true.

3. Misrepresentations by an employee in an application for employment with an interstate carrier do not render the contract of employment void as to terminate the relation of master and servant and preclude recovery under the Federal Employers' Liability Act for negligent injuries inflicted upon him where he was found to be in good health and acceptable physical condition at the time of his physical examination and the misrepresentations had no causal relation to his fitness to perform the duties required of him and to the injuries he sustained, notwithstanding they may render the contract voidable and form the basis for its rescission by his dismissal.

4. One of the principal reasons an applicant for employment with an interstate carrier is required to submit to a physical examination is to permit the carrier to ascertain his physical condition and determine his fitness to perform the duties of his employment.

5. A defendant interstate carrier's amended answer purporting to allege an affirmative defense sufficient in law to preclude recovery by a plaintiff employee in an action under the Federal Employers' Liability Act for negligent injuries inflicted upon him, which in effect alleged that the employee concealed in his application for employment and from the medical examiner five injuries he received over a seven-year period in previous employment, and that had the defendant known of such injuries it would not have employed him as physically qualified because of his obvious proneness to have accidents, considered and held: That the trial court did not err in sustaining plaintiff's motion to strike the allegations of the affirmative defense, fully set forth in the opinion, as they were insufficient in law to state a defense since it was not alleged that the previous injuries had causal relation to his physical fitness to perform the duties of his employment and to the injuries he sustained, and that the defendant remained unaware of the misrepresentations prior to the injuries.

Ralph M. Hope, Wichita, argued the cause, and S. Leo Armstrong and Paul Armstrong, Columbus, W. F. Lilleston, George C. Spradling, Henry V. Gott, George Stallwitz, Richard W. Stavely and Charles S. Lindberg, Wichita, were with him on the briefs for appellant.

William L. Fry, Wichita, argued the cause, and Joe L. Henbest, Columbus, Payne H. Ratner, Louise Mattox, Payne H. Ratner, Jr., Russell Cranmer, Dale B. Stinson, Jr., Cliff W. Ratner, A. Wayne Murphy, Bernard V. Borst, D. Clifford Allison and Gerald D. Lasswell, Wichita, were with him on the briefs for appellee.

FATZER, Justice.

Plaintiff instituted this action against the defendant under the Federal Employers' Liability Act (45 U.S.C.A. §§ 51-59) to recover damages for personal injuries alleged to have been sustained on two separate occasions as a machinist inspector in defendant's diesel shop at Osawatomie, Kansas. The first injury is alleged to have occurred June 30, 1954, when plaintiff fell into an opening in the subfloor of the cab of a diesel locomotive and the second injury is alleged to have occurred January 23, 1955, when plaintiff slipped on ice on the concrete surface adjacent to defendant's diesel locomotive washrack.

Defendant's amended answer in addition to containing a general denial, alleged negligence on the part of plaintiff, and contained the following allegations:

'Further Answering, defendant alleges that plaintiff commenced working for defendant on the 10th day of January, 1951, after having signed and filed with defendant an Application for Employment on January 9, 1951. Said Application for Employment contained a number of considerations and conditions of employment of plaintiff by defendant which were specifically accepted by plaintiff, among which was the following agreement and condition:

"4. That any misrepresentation or concealment of facts by me in this statement or in my statements to the medical examiner respecting my age, physical condition past or present, qualifications, personal character, and record with former employers shall be just cause for my rejection or dismissal from service.'

'Defendant alleges that in said Application for Employment and in plaintiff's statements to defendant's medical examiner plaintiff misrepresented and concealed a number of facts respecting his past and present physical condition at that time and his records with former employers by giving false answers to questions contained in said Application for Employment and questions asked him by said medical examiner.

'Plaintiff stated in said Application for Employment that he was employed by Mueller Implement Company of Independence, Missouri, only during the period from 1937 to 1941. Plaintiff further stated in said Application for Employment that the only injury other than minor cuts and bruises which he had ever sustained was a broken ankle and that he had never filed a claim for damages because of any injuries, and stated to Dr. A. L. Speer, defendant's medical examiner who examined plaintiff at said time, that he had never suffered from a serious injury, although he also stated to said medical examiner that he had fractured his left ankle in 1945 and had had no trouble since that time.

'Defendant further alleges that said statements so made in said application and so made to said medical examiner were false and untrue and were made with the intent to deceive and defraud defendant; that in truth and in fact plaintiff was also employed by Mueller Implement Company from January, 1948 to January, 1949, and during plaintiff's employment by said company from January, 1948 to January, 1949, plaintiff fractured the index finger and the middle finger of one of his hands while engaged in said employment, upon which he filed a claim and for which he received compensation payments as a result and in settlement thereof; and that in truth and in fact while plaintiff was an employee of The Santa Fe Trail Transportation Company from March, 1941 to March, 1947, he sustained the following injuries while engaged in said employment and upon which he filed claims and received compensation as follows: May 30, 1942, back sprain, for which he received compensation and medical payments of $55.07; January 28, 1943, inhalation of carbon monoxide gas, for which he received compensation and medical payments of $50.11; June 17, 1943, fracture of left ankle, for which he received compensation and medical payments of $291.50; August 31, 1945, bruised right elbow, for which he received medical payments of $8.00; September 3, 1946, sprained right knee, for which he received a compromise settlement of $864.30.

'Defendant further alleges that defendant and his agents and medical examiner relied upon said false and fraudulent statements made by plaintiff in said Application for Employment and made to defendant's said medical examiner and by reason thereof gave plaintiff employment, and that if defendant had known of plaintiff's previous injuries while employed by said Mueller Implement Company and said Santa Fe Trail Transportation Company, he would not have employed plaintiff as physically qualified for employment by defendant, nor would he have employed plaintiff because of plaintiff's obvious proneness to have accidents, as shown by said numerous injuries sustained by him.

'By reason of all of the foregoing plaintiff is not and was not at any time referred to in plaintiff's petition an employee of defendant within the meaning, or entitled to the protection, of the Federal Employers' Liability Act, is not entitled to maintain this action under the provisions of said act, and is not entitled to recover herein.'

Plaintiff moved to strike that portion of the amended answer quoted above on the ground that it failed to state a defense under the Federal Employers' Liability Act and that it was incompetent, irrelevant, immaterial, surplusage, prejudicial and a conclusion. The trial court sustained the motion to strike for reasons asserted in the motion, and the defendant has appealed from that order.

In considering defendant's specification of error that the trial court erred in sustaining plaintiff's motion to strike that part of the amended answer quoted above, we note the rule that an order sustaining a motion to strike an affirmative defense pleaded in an answer and involving the merits of an action is tantamount to the sustaining of a demurrer and is an appealable order (Whitlaw v. Illinois Life Insurance Co., 86 Kan. 826, 122 P. 1039; Trusler Grain Co. v. Earlton Grange Co-operative Ass'n, 109 Kan. 293, 198 P. 964; Wigton v. Donnelly, 122 Kan. 796, 253 P. 400; Miller v. Whistler, 153 Kan. 329, 110 P.2d 744; In re Estate of Reed, 157 Kan. 602, 142 P.2d 824). Further, that a motion to strike an affirmative defense pleaded in an answer and involving the merits of an action will be denied if the defense is sufficient as a matter of law (Small v. Small, 107 Kan. 122, 190 P. 623; Stafford v. City of Coffeyville, 161 Kan. 311, 168 P.2d 91), and, for the purpose of a decision on a motion to strike such defense as insufficient in law, well pleaded allegations will be accepted as true (Stinson v. Wooster, 83 Kan. 753, 112 P. 610; ...