White v. Toombs
| Decision Date | 08 March 1947 |
| Docket Number | 36793. |
| Citation | 162 Kan. 585,178 P.2d 206 |
| Parties | WHITE v. TOOMBS et al. |
| Court | Kansas Supreme Court |
Appeal from District Court, Sedgwick County; Robert L. NeSmith Judge.
Appeal from District Court, Sedgwick County; Robert L. NeSmith Judge.
Action by Vada White against Elkin Toombs and another, a copartnership doing business as the Defense Transportation Company, for personal injuries allegedly sustained when plaintiff was riding in a bus operated by defendant as a passenger for hire, and for other relief. From a judgment overruling defendant's demurrer to the petition defendant appeals.
Syllabus by the Court.
1. In an action by a married woman for damages for personal injuries caused by the negligence of a third party, and also to recover damages resulting to her husband from the same negligence, as authorized by G. S. 1935, 23-205, it is not improper for her to frame her petition in two causes of action.
2. In such a case where the cause of action for damages for her husband states that it is for 'her husband and family' the cause of action is not demurrable because it uses the words 'and family.'
William J. Wertz and Milton Zacharias, both of Wichita (Vincent F Hiebsch and Eugene L. Pirtle, both of Wichita, on the brief), for appellants.
John F. Eberhardt, of Wichita (Robert C. Foulston, George Siefkin, Samuel E. Bartlett, George B. Powers, Carl T. Smith, Stuart R. Carter, and Thomas E. Woods, all of Wichita, on the brief), for appellee.
This was an action for damages which resulted to plaintiff for personal injuries sustained when she was riding in a bus operated by the defendant as a public utility and a passenger for hire through the alleged negligent action of defendant. The second cause of action made all the allegations of the first cause of action a part thereof and alleged: in a sum stated.
Defendant demurred to the petition, upon the ground that two causes of action were improperly joined. It also demurred to the first cause of action upon the ground that it did not state facts sufficient to constitute a cause of action. It also demurred to the second cause of action upon the ground that it did not state facts sufficient to constitute a cause of action. These demurrers were by this court considered and overruled, and defendant has appealed.
The authority of plaintiff to recover upon the facts alleged in the second cause of action is found in our statute (G.S.1935, 23-205) which reads: 'That where, through the wrong of another, a married woman shall sustain personal injuries causing the loss or impairment of her ability to perform services, the right of action to recover damages for such loss or impairment shall vest solely in her, and any recovery therefor, so far as it is based upon the loss or impairment of her ability to perform services in the household and in the discharge of her domestic duties, shall be for the benefit of her husband so far as he shall be entitled thereto: Provided, however, That nothing herein shall in any way affect the right of the husband to recover damages for the wrongful death of his wife.'
In this court appellant, contrary to its position in the court below contends that plaintiff's right to recover for damages to herself and her right to recover under the above statute for damages to her husband, both resulting from the same alleged negligence of defendant, constitute but one cause of action, and that in fact plaintiff has improperly split her cause of action into two parts. If we should assume that to be true, it is not a ground for demurrer set out in our statute. (G.S.1935, 60-705.) It has been held that a demurrer to a petition must be upon some one of the grounds named in the statute. Mayberry v. Kelly, 1 Kan. 116; Sparks v. Smeltzer, 77 Kan. 44, 45, 93 P. 338; Dassler's Kansas Civil Code, 2d Ed., p. 245. Prior to the enactment in this state of the statute above quoted the rule in this state, and generally elsewhere, was that when a married woman was damaged by the negligence of another she could...
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...party, and also to recover damage resulting to her husband from the same negligence, as authorized by 23-205, supra. (White v. Toombs, 162 Kan. 585, 178 P.2d 206.) The appellant argues that if by statute a wife must alone bring such a cause of action, she may certainly bring a cause of acti......
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