145 P.2d 140 | Kan. | 1944
The opinion of the court was delivered by
The actions in this appeal were brought to recover alleged damages to real estate. The substance of the actions is the same and they are treated together. Demurrers were sustained to second amended petitions, and plaintiffs appeal.
Omitting formal parts, it is alleged that Stonehouse Drainage District No. 1 of Jefferson county is a duly organized corporation under
The briefs filed cover many contentions and determination of some of them renders others immaterial. In support of the trial court’s ruling appellee directs attention, among other things, to the rule stated in Grentner v. Fehrenschield, 64 Kan. 764, syl. ¶ 1, 68 Pac. 619, and followed in later cases, that if the petition is not drawn upon a single and definite theory, or there is such a confusion of theories alleged that the court cannot determine from the general scope of the petition upon which of several theories a recovery is sought, it is insufficient, and. argues that the petition under consideration presents a confusion of theories and a failure to plead upon a single and definite theory. The appellant insists that his action is one in trespass and to recover against the defendants in their individual capacities, this because of alleged illegal acts as directors of the' Stone-house Drainage District, by defendants Sturm, Baker, Hoekstra and Roelofsz, and by defendant Marsh under an unlawful contract, and for our purposes we shall so consider it. Assuming sufficiency otherwise, the action for trespass sounds in tort, and denies legality of the acts performed. Assuming any. cause of action is stated against defendant Holt, it is based on his liability on the bond of Marsh, and assumes legality of the contract. Even though these two actions based upon these inconsistent positions could otherwise be joined, it is quite apparent that all of the defendants are not interested in or affected by each cause of action and the actions may not be joined (G.S. 1935, 60-601).
We next examine the petition to determine whether it states a cause of action in trespass against the defendants or any of them. The substance of the allegations of the petition is that Stonehouse Drainage District is a corporation under Laws 1905, ch. 215 (G. S. 1935, 24-401 et seq.) and that on July 3, 1939, defendants, Sturm, Baker and Hoekstra, presuming to act as officers of and on behalf of the drainage district let a contract to Marsh for digging a ditch, it being held in State, ex rel., v. Stonehouse Drainage Dist., 154 Kan. 422, 118 P. 2d 587, the contract was illegal and void (perhaps the citation is in error for the digging of the ditch is alleged to have occurred before the above case was decided on November 8, 1941. In a case of the same title, reported in 152 Kan. 188,102 P. 2d 1017,
As to the defendant Sturm there is no allegation he did anything subsequent to the letting of the contract, and without more it may be said no cause of action was stated as to him.
As to the defendants, Baker, Hoekstra and Roelofsz, it is clear that plaintiff seeks to hold them individually liable for acts performed by them as the Board of Directors of the Drainage District. In Gresty v. Darby, 146 Kan. 63, 68 P. 2d 649, plaintiff brought suit against individual members of the state highway commission and against a contractor and others to recover damages for alleged injury to land caused by diversion of water from a creek in connection with highway improvements. In ruling on a demurrer to the petition this court said:
“It is the general rule of law that state or municipal officials, performing the duties imposed upon them by statutes creating their respective offices and prescribing their duties, and exercising in good faith the judgment and discretion necessary therefor, are not liable personally in damages for injuries to private individuals resulting as a consequence of their official acts. (Hicks v. Davis, 100 Kan. 4, 163 Pac. 799; Construction Co. v. Sedgwick County, 106 Kan. 410, 186 Pac. 492; 46 C. J. 1045; 22 R. C. L. 487; Mechem, Public Offices and Officers, §§ 612, 613.) Hence, insofar as plaintiffs seek to recover from appellants as individuals the petition failed to state facts sufficient to constitute a cause of action, and appellant’s demurrers thereto should have been sustained.” (1. c. 65.)
Appellant contends the rule of that case, and others of like import, may not be followed here and that the rule of Cunningham v. Blythe, 155 Kan. 689, 127 P. 2d 489, applies. In the latter case the board of county commissioners, who were not charged with the collection of taxes, and who had no jurisdiction to take possession of
“The general rule is that immunity from liability to persons who may be injured" as the result of quasi-judicial acts performed by public officers does not attach to acts performed wholly outside their jurisdiction.
“Where a public officer performs, without jurisdiction, a quasi-judicial act, he is not exempt from liability to persons injured thereby, at least unless the subject matter of such act belongs to a class over which he has jurisdiction and the act is performed under color of jurisdiction.” (Syl. ¶¶ 6, 7.)
We shall not make an extensive review of the law covering organization of the Stonehouse Drainage District, or of its powers (G! S. 1935, 24-401 et seq.). The petition alleges the district is a corporation. Under the statute it is a “body politic and corporate” with power to sue and be sued, and to take charge of and exercise control of watercourses, to construct ditches, drains and levees, to levy assessments and special taxes to defray costs of improvements, to levy and collect a general tax to create a general fund, and other powers as set out in the statute (24-407). The affairs of such a district are managed by a board of three directors (24-409) elected by the taxpayers of the district (24-411.) In addition there is full authorization for making improvements. That the three defendants last referred to were operating as directors of the drainage district under color of statute and law and dealing with a matter over which they had jurisdiction is clearly deducible from the allegations of the petition, and from those allegations it is likewise clear that plaintiff seeks to hold them individually responsible because through a mistake of the law applicable, they failed to procure approval of the chief engineer of the division of water resources which we held to be a condition precedent to the making of the proposed improvement.. (See State, ex rel., v. Stonehouse Drainage Dist., 152 Kan. 188, 102 P. 2d 1017.) It is clear from the statute and from allegations of the petition the board of directors was acting within its jurisdiction, and not outside of it as was -the board of county
As to defendant Marsh, it is alleged that under a void contract with the drainage district, he proceeded to dig a ditch on the plaintiff’s real estate. Under the circumstances the drainage district had no legal right to dig the ditch and Marsh was in no better position. Where two or more parties, by their concurrent wrongdoing, cause injury to the real estate of a third person, the injured party may institute an action against one or all contributing to his injury (Kansas City v. Slangstrom, 53 Kan. 431, 36 Pac. 706). Without discussion it may be said that the state and its governmental subdivisions, while constructing public improvements in accordance with statute, are generally immune from' actions to recover damages arising therefrom. There is also a well-established rule that one who contracts with a public body for the performance of a public work is entitled to share the immunity of the public body for incidental injuries necessarily involved in the performance of the contract, where he is not guilty of negligence (see 69 A. L. R. 490), but neither rule has application here, for the reason that the damage complained of was not in performance of a legal contract, nor incidental to its performance, but because the work projected was never completed. The drainage district and possibly the contractor may have immunity as to incidental damage occurring without negligence in constructing a ditch, but the damage complained of is not of that type — it is damage occurring' because of the failure of the district to properly initiate and complete proceedings leading nip to the contract under which the ditch was partially dug and then abandoned without completion. Under the allegations of the petition, defendant Marsh participated with the drainage district in committing the damage and a cause of action was stated against him. The present appeal involves no question of respective rights and liabilities between the drainage district and Marsh.
It is not necessary that we treat at length whether a cause of
The law is settled that a party may not both affirm and disaffirm a particular contract, and assert that it is void for certain purposes, and at the same time claim an advantage under it. (See Osborne v. Kington, 148 Kan. 314, 80 P. 2d 1063, and cases cited.) Plaintiff’s claim for damages is predicated on the proposition the contract between the drainage district and Marsh was void. She will not -be permitted to say it was valid so that she may state a cause of action against the contractor’s surety. No cause of action was stated against the defendant Holt.
In each of the appeals the rulings of the trial court on the demurrer insofar as the ground of misjoinder of causes of action is concerned is affirmed, and insofar as the ground the petition did not state facts sufficient to constitute a cause of action is concerned it is affirmed as to all defendants except the defendant Marsh, and as to him it is reversed.