TULLY v. ESTATE OF GARDNER

No. 44,282

196 Kan. 137 (1966)

409 P.2d 782

LOIS E. TULLY, Individually, and KELLEY LYNNE TULLY, JOHN JAY TULLY and JEFFREY LOUIS TULLY, by LOIS E. TULLY, Their Guardian, Appellants, v. The Estate of Terry G. Gardner, Deceased, DONALD L. GRAY and KEITH M. GRAY; and MOSS LEASING COMPANY, INC., Appellees, and AETNA CASUALTY AND SURETY COMPANY, INC., A Corporation, Intervenor.

Supreme Court of Kansas.

Opinion filed January 22, 1966.


Attorney(s) appearing for the Case

Frank M. Rice, of Topeka, argued the cause, and Howard A. Jones and William E. Haney, both of Topeka, were with him on the brief for the appellants.

J.H. Eschmann, of Topeka, argued the cause, and L.M. Ascough and J.A. Bausch, both of Topeka, were with him on the brief for the appellee, The Estate of Terry G. Gardner, Deceased.

J. Eugene Balloun, of Great Bend, and Herbert A. Marshall, of Topeka, were on the brief for the appellees, Donald L. Gray and Keith M. Gray.

Donald Patterson, of Topeka, was on the brief for the appellee, Moss Leasing Company, Inc.

Peter F. Caldwell, of Topeka, was on the brief for the intervenor, Aetna Casualty and Surety Company, Inc., a corporation.


The opinion of the court was delivered by

FONTRON, J.:

This is an action brought by the surviving widow and children of Gerald L. Tully to recover damages for Tully's death which allegedly resulted from the joint negligence of Terry G. Gardner (now deceased), Donald L. Gray and the Moss Leasing Company, Inc.

The basic issue raised in this appeal is whether the heirs of a deceased employee can maintain a wrongful death action against

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