98 P.2d 153 | Kan. | 1940
The opinion of the court was delivered by
This was an action for damages for personal injuries filed in Wyandotte county, April 11, 1939. Defendant’s motion to require the petition to be made definite was sustained in part and overruled in part. Defendant filed an answer containing a general denial and a general plea of contributory negligence. Plaintiff’s motion that defendant be required to state the facts upon which it relied in its plea of contributory negligence was sustained. Defendant then served notice to take plaintiff’s deposition. Plaintiff moved the court to enjoin the defendant from doing so. This motion was sustained. Defendant has appealed (1) from the order enjoining
Defendant is a common carrier of passengers at Kansas City, using gasoline-propelled motorbuses. Plaintiff alleged that “on or about” March 25, 1939, “at about” 8:30 o’clock p. m., plaintiff boarded one of defendant’s northbound buses “at or near” Eortysecond and Rainbow boulevard. The number or better description of such bus plaintiff did not know and could not state; that she paid her. fare and became a passenger and seated herself on the seat behind the driver of the bus; that on reaching her destination she pushed the signal button and rose from her seat preparatory to alighting and walked forward toward the front exit; that the driver -of the bus, whose name, number or better description she did not-know, suddenly and without warning slackened the speed of the bus and turned to the left, causing plaintiff .to be thrown forward against the seat occupied by the bus driver and down on her knees with great force, causing personal injuries, which are detailed; and several acts of negligence on defendant’s part were charged. Defendant’s motion to make more definite averred that its employees, and particularly the drivers of its buses, under its rules, are required to make reports of any accident known to them; that no such report had been made; that no complaint had been made by plaintiff to any of its officers or employees prior to filing the action, and asked that plaintiff be required to set out a more definite description of the bus and the time she boarded it, and a more definite description of the driver; also, that charges of negligence on the part of defendant be made more definite in several particulars, and that plaintiff be required to elect as between some of them because of their inconsistency. Upon the court’s sustaining the motion in part plaintiff filed an amended petition omitting one of the grounds of negligence charged in the original petition. The answer contained two paragraphs, the first being a general denial, and the second reads:
“If the plaintiff was injured at the time and place and in the manner alleged in her amended petition her own negligence directly contributed to her alleged injuries as a direct and proximate cause thereof.”
Plaintiff moved that this paragraph be made more definite by stating how and in what manner plaintiff’s own negligence directly contributed to her injuries. This motion was sustained May 18, 1939, and defendant was ordered to amend its answer within twenty days.
We turn now to the questions argued. Did the court err in making the order enjoining defendant from taking plaintiff’s deposition? In its affidavit in opposition to the application for that order defendant set out its reasons for desiring to take the deposition, namely, to ascertain the facts which plaintiff claimed to exist in order better to make its defense, and particularly to enable it to ascertain information upon which to plead specific facts tending to show plaintiff’s contributory negligence. There was no contention that defendant expected to use the deposition on the trial, and in this court it is conceded, at least in effect, that no such use was expected to be made of it. Our former decisions do not authorize the taking of a deposition of a party to the action simply to get information and without the intention of using it at the trial. In In re Davis, Petitioner, 38 Kan. 408 (1888), 16 Pac. 790, it was held:
“The taking of the deposition of a party in a pending ease, merely to fish out in advance what his testimony will be, and to annoy and oppress him, and not for the purpose of using the same as evidence, is an abuse of judicial authority and process; . . .”
In Long v. Prairie Oil & Gas Co., 135 Kan. 440 (1932), 10 P. 2d 894, it was held:
“Our statutes (R. S. 60-2803, 60-2821 and 60-2822) authorize a party to a civil action, to take the deposition of the opposing party, but in doing so he must be proceeding in good faith for the purpose of using the testimony at the trial, and there must be some reasonable ground for believing that an actual necessity exists for doing so.’'
To the extent the question of good faith entered into the application for the order and defense thereto, the sustaining of the application and the making of the order amounted to a finding or holding of the court that defendant was not proceeding in good faith for the purpose of using the deposition, on the trial. To the extent the ruling was within the discretion of the trial court no abuse of such discretion is shown. (Hanke v. Harlow, 83 Kan. 738, 112 Pac. 616.)
Counsel for appellant cites statutes of the state of Missouri somewhat similar to our statutes mentioned in the syllabus above quoted, and advise us that under the Missouri practice depositions of an adverse party may be taken before the answer day in all civil actions,
We. think defendant’s motion to have plaintiff’s petition made more definite is not tantamount to a demurrer to the petition, or any material subdivision thereof, and that the order of the court overruling that in part is not one from which an appeal can be taken before final judgment. We feel compelled to hold that the same ruling applies to plaintiff’s motion that defendant be required to make the second paragraph of its original answer more definite, particularly in view of the fact that defendant complied with the court’s definite order to file an amended answer within twenty days, and in doing so stated that it did “forego the filing of its plea of contributory negligence which it wished to set up.” This holding need not seriously handicap defendant on the trial. While it is well recognized that contributory negligence is an affirmative defense, and ordinarily must be pleaded and proved (Stevens v. Railway Co., 84 Kan. 447, 113 Pac. 398), if the evidence on behalf of plaintiff discloses contributory negligence of plaintiff, those facts may be relied upon by defendant as establishing contributory negligence even though the answer is only a general denial (Altwein v. Street Railway Co., 86 Kan. 220, 120 Pac. 550), and if necessary in the progress of the trial the answer may be amended to conform to the evidence. (Jenkins v. Kansas City Public Service Co., 127 Kan. 821, 823, 275 Pac. 136.)
The rulings and judgment of the trial court are affirmed.