The opinion of the court was delivered by
FONTRON, J.:
This is an action to recover damages sustained by the plaintiff's decedent, Lillian Price, which allegedly resulted from the faulty execution of a will. The trial court sustained the defendant's motion for summary judgment and the plaintiff has appealed. We shall refer to the parties as plaintiff, on the one hand and as defendant, or Holmes, on the other.
The facts which give rise to this rather bizarre lawsuit are these: On November 16, 1960, Henry H. Weber, who was a very sick man, drove to The Riley State Bank and asked the banker, Harold B. Holmes, who is the defendant in this action, to prepare a will leaving one-half of his estate to his wife and the other one-half to his niece, Lillian Price. In response to Weber's instructions, the banker drafted a will which Weber signed and two witnesses attested. Five days later, on November 21, 1960, Mr. Weber died.
Weber's will was offered for probate on November 26, 1960, and was contested by his widow on the ground that it had not been legally executed, i.e., that it had not been executed in the presence of the attesting witnesses, nor attested by the witnesses in Weber's presence. Both the Probate Court and the District Court of Riley County found that Weber's will had been duly executed and attested and should be admitted to probate. The district court's judgment to such effect was then appealed to this court.
On November 25, 1963, while the appeal was still pending, Lillian Price died. Twelve days later, on December 7, 1963, this court reversed the Riley County District Court and held the Weber will to be void. Our opinion in that case is reported in In re Estate of Weber, 192 Kan. 258, 387 P.2d 165.
Von T. Price was appointed administrator of Lillian Price's estate on February 3, 1964, and filed his petition in this case on June 4, 1965. Omitting formal parts, the petition alleges in substance that the defendant, Holmes, a banker and owner of a funeral home, represented to the public and to Weber that he was qualified and possessed sufficient knowledge, training and ability to draft and supervise the execution of Weber's will so that Weber's property would pass according to his desire when, in fact, he (Holmes) was not qualified and did not have the requisite knowledge, training and
The petition further alleged that Holmes failed to have the will properly executed according to the laws of Kansas, contrary to his oral agreement with Weber; that Holmes negligently supervised and directed the execution of the will and failed to exercise the degree of care required; and that, if the will had been executed according to the laws of this state, Lillian Price would have received property approximating $58,611 (being half the value of Weber's estate). Judgment is asked in such amount and an additional $20,000 is sought for punitive damages.
To the petition, Holmes filed a motion for summary judgment on three grounds: (1) That plaintiff's cause of action did not survive under G.S. 1949, 60-3201; (2) that the statute of limitations had run on plaintiff's cause of action under G.S. 1949, 60-306; and (3) that plaintiff was estopped to maintain this action by reason of his decedent having joined and consented to the former will contest action. After a hearing, the district court sustained the defendant's motion on all three grounds, and entered judgment accordingly. This appeal followed.
It will be helpful, at the start of our discussion, to recapitulate the dates of importance:
"11-16-60 Will Drafted and Executed.
"11-21-60 Weber Died.
"11-26-60 Will Offered for Probate by Ben Heer.
"11-25-63 Lillian Price Died.
"12-7-63 Judgment Admitting Will to Probate
Reversed by Supreme Court.
"2-3-64 Administrator of Lillian Price Estate Appointed.
"6-4-65 Administrator Filed Petition.
"6-5-65 Holmes Summoned."
The sufficiency of the plaintiff's petition to allege a cause of action was not put in issue by the defendant's motion for summary
Three points are raised by plaintiff on this appeal: (1) That his cause of action is not barred by the statute of limitations; (2) that the cause of action survived the death of Lillian Price; and (3) that he is not estopped to maintain this action. We proceed to his first point.
The plaintiff maintains that whether his cause of action sounds in implied contract, or in tort, or in fraud, it accrued either when the will was drafted and faultily executed on November 16, 1960, or when Mr. Weber died on November 21, 1960, or when the will was offered for probate on November 26, 1960.
To us, it seems clear that the plaintiff has endeavored to allege his cause of action in the alternative, the first sounding in contract for breach of implied warranty and the second sounding in tort on the ground of negligence. Plaintiff's counsel has also asserted that his client has a further cause of action for fraud but we have been wholly unable to find this theory expressed in the petition. Fraud is not alleged, even by remote implication, and we shall expend no further time or effort in pondering this claim.
As against a motion for summary judgment, filed under K.S.A. 60-256, pleadings are entitled to be liberally construed in favor of the party against whom the motion is directed (Gard, Kansas Code of Civil Procedure, annotated, p. 259). See, also, Carpenter v. Strimple, 190 Kan. 33, 372 P.2d 571, and Grisamore, Administratrix v. Atchison, T. & S.F. Rly. Co., 195 Kan. 16, 23, 403 P.2d 93, stating a similar rule when a demurrer (an archaic term) has been directed against a pleading. We therefore proceed on the assumption that the petition before us, given a liberal interpretation, contains two causes of action: one, ex contractu; the other, ex delicto.
We pause here to note that we have held it permissible for a pleader to allege a cause of action in the alternative provided the alternatives are not repugnant (McCoy v. Wesley Hospital & Nurse Training School, 188 Kan. 325, 337, 362 P.2d 841), it being elementary, of course, that the pleader will be limited to but a single recovery. Our decisions have also upheld the right of a plaintiff to plead twin causes of action arising out of a single transaction, the one sounding in tort and the other being in contract for breach of
If either the cause of action sounding in tort or the cause of action sounding in contract survived the death of Lillian Price and, in addition, was not barred by the statute of limitations, then the defendant's motion for summary judgment should have been overruled. In Crabb v. Swindler, Administratrix, 184 Kan. 501, 337 P.2d 986, this court was called upon to construe a petition in an action seeking to recover damages resulting from faulty plumbing installation, where damage had not occurred until after the death of the plumbing contractor. The plaintiff contended that his cause of action was in contract for breach of implied warranty, while the defendant claimed that the plaintiff's petition sounded in tort. In our opinion, we said:
To determine whether a cause of action survived, either in tort or in contract, we must ascertain when each would have accrued. On this particular phase of the law, we believe the circumstances attending this case fall within the ambit of Crabb v. Swindler, Administratrix, supra, and that the rules enunciated there are apropos to the present situation. In Crabb we held that a tort action would not accrue under the facts alleged there until damage had resulted from the defective plumbing. On the other hand, we determined that a cause of action in contract for breach of an implied warranty to install the plumbing fixxtures in a good and workmanlike manner accrued when the faulty plumbing work was done.
In support of the proposition that a cause of action in tort accrues when the damage results, this court, in Crabb, followed Kitchener v. Williams, 171 Kan. 540, 236 P.2d 64, where suit was filed to recover damages sustained when gas, escaping from pipes connecting a hot water heater, caused an explosion. The action was predicated on negligence, i.e., the faulty installation of a shutoff valve. The explosion did not take place until about two years after the valve was installed. The court discussed at considerable length, and with frequent citations, the question of when the cause of action arose and concluded that no cause of action accrued until the tortious act had occasioned damage.
At first blush, it might appear that what we are saying here, and what we said in the Kitchener and Crabb cases, is inconsistent with what we held in Graham v. Updegraph, 144 Kan. 45, 58 P.2d 475, and McCoy v. Wesley Hospital & Nurse Training School, supra. However, a critical analysis will disclose a distinction between the two groups of cases. We pointed out in Kitchener that actual resulting damage is an essential component of an actionable tort, and that some damage follows as a matter of course from leaving part of a drill in a patient's jaw (see Becker v. Porter, 119 Kan. 626, 240 Pac. 584), or leaving radium beads in a woman's uterus (see Graham v. Updegraph, supra). Likewise, a fall from a hospital bed, which was the gravamen of the tort alleged in McCoy, necessarily would occasion some immediate actual damage even though the full extent thereof might not be known at once.
Immediate damage was not involved in either Crabb or Kitchener, nor is it here. The actual damage did not occur in Crabb, or in Kitchener, or in this case, until years had passed; nor was it even certain when the alleged wrongful act was committed that damage would ever result. In Kitchener, for example, an unfortunate combination of circumstances, which might never have occurred, triggered the failure of a valve leading to the explosion. In the instant case, had no contest of Weber's will developed, Lillian Price would have sustained no such damage as plaintiff now claims. We believe the two lines of cases are distinguishable, and that under the circumstances present in this case, the tort action did not accrue until Weber's will was finally declared invalid.
If no cause of action in tort accrued in favor of Lillian Price until she sustained damage, then no cause of action in tort survived at her death for the simple reason that she had died before that time. This was our holding in Crabb where we said that since the defendant, who was responsible for the faulty plumbing installation, had died before the damage occurred, no cause of action in tort survived against him. This is the law generally. (See 1 C.J.S.,
But, as we have already indicated, a cause of action for breach of contract accrues when a contract is breached. In Crabb v. Swindler, Administratrix, supra, we said:
If Mr. Holmes did breach an implied warranty, the breach occurred, and the cause of action based thereon accrued, long before this court held Weber's will invalid and long before Lillian Price died. This is so whether the cause of action be considered as accruing on the date the will was executed, or on the date of Mr. Weber's death. Did this cause of action, then, survive? We believe it did.
By the terms of our statute (G.S. 1949, 60-3201, now K.S.A. 60-1801), a cause of action which survived at common law survives in this state. At common law, it was the rule that a cause of action founded on contract survived the death of either party where the breach resulted in a property loss or an injury to a property right (1 C.J.S., Abatement and Revival, § 137a, pp. 184-186). This principle was imbedded in the Crabb decision. In C.J.S., Abatement and Revival, § 137 b, p. 186, there is further elaboration of the rule:
See, also, Cory v. Troth, 170 Kan. 50, 223 P.2d 1008, Syllabus 1 of which reads:
This brings us to a sensitive point: Is the plaintiff's cause of action for breach of implied warranty barred by the statute of limitations? It is obvious that more than three years had elapsed (See K.S.A. 60-512) between the date Weber's will was executed and the time this action was commenced. However, the plaintiff argues that the statute was tolled by the pendency of the proceedings to contest Mr. Weber's will and he supports this contention by citing, among other authorities, the cases of In re Estate of Brasfield, 168 Kan. 376, 214 P.2d 305, and Newcom, Administrator v. Potterf, 182 Kan. 73, 318 P.2d 1069.
In Brasfield, the general rule which has often been followed by this court, and which we find reiterated in Newcom, is expressed in these words:
While the defendant acknowledges the authority of the Brasfield and Newcom decisions, he maintains that neither decision is in point because of factual differences. He points out that each case revolves around a delay in the appointment of an administrator due to protracted litigation and the effect such a delay has on a creditor's right to file his claim, on the one hand, and an administrator's right, after appointment, to recover estate property, on the other hand.
We have found no case with facts identical to those now before us, but we believe the rationale of the rule defined in Brasfield covers the present case. In our judgment, Lillian Price was effectively prevented from suing Holmes for breach of warranty until Weber's will was found to be invalid. Stated conversely, it was only in the event the will turned out to be void that Lillian Price would find herself in a position to maintain this type of action at all. Before she could proceed against Holmes for damages, we believe it would be incumbent on Lillian, or some other interested party, to attempt, at least, the probate of Mr. Weber's will and only when such endeavor failed would Lillian have been able, under any theory, to recover from Holmes. We presume that Lillian Price did participate in efforts to secure probate of the will in which she was designated a devisee and
The situation is somewhat analogous to that which obtained in McGregor v. McGregor, 101 F.Supp. 848, where the legatees under a will filed an action for damages against the testator's widow for wilfully and wrongfully having presented and obtained the probate of an earlier will which left the entire estate to her. The plaintiffs did not allege an attempt on their part to probate the will under which they claimed as legatees. In dismissing the action, the federal court said:
See, also Riggs v. Rankins' Executor, 268 Ky. 390, 105 S.W.2d 167.
The case of Lee C. Hess Company v. City of Susanville, 176 Cal.App.2d 594, 1 Cal.Rptr. 586, bears comparison. This was an action for breach of contract. The city had awarded a contract to the plaintiff as low bidder. Thereafter, the city council, after deciding that plaintiff was not a qualified bidder, awarded the contract to the next lowest bidder and instituted an action to validate the second contract. The Hess Company intervened in that lawsuit and its contract with the city was ultimately found to be valid. Hess then sued for damages for breach of contract and the city pleaded the statute of limitations. The court, in rejecting this defense, ruled that the running of the statute was suspended during the pendency of the validation proceedings.
A comparable set of circumstances came before the Arizona Supreme Court in City of Phoenix v. Sittenfeld, 53 Ariz. 240, 88 P.2d 83. Sittenfeld, a city police officer, was dismissed under circumstances which he claimed violated civil service rules and regulations. The Civil Service Board refused to grant Sittenfeld a hearing, whereupon he filed suit to review the Board's action. Following a judgment of the circuit court, which voided his dismissal, the officer sued for back salary.
Two additional Kansas cases deserve mention. In City of Hutchinson v. Hutchinson, 92 Kan. 518, 141 Pac. 589, the owner of a tract of land dedicated it to public use as a city park. Subsequently, the owner procured an order purporting to vacate the park and then proceeded to mortgage the land. Some years later, the city brought an action to annul the vacation, to cancel the mortgage and to quiet the city's title. During the pendency of that lawsuit title to the land was transferred to new owners. Eventually a judgment was entered quieting title against the city.
After title of the new owners had been quieted, the purchaser of the mortgage filed a cross-petition seeking to foreclose his mortgage. The present landowners defended on the ground that the claim was barred by the statute of limitations. This court refused that defense and held that where the character of legal proceedings is such that the law restrains a party from exercising his legal remedy against another, the running of the statute is suspended while the restraint continues. In arriving at its conclusion, the court quotes from United States v. Wiley, 78 U.S. (11 Wall.) 508, 513:
In the second case, Campbell v. Durant, 110 Kan. 30, 202 Pac. 841, the plaintiffs were beneficiaries under a will leaving them one-half of the testator's personalty (in addition to certain real estate). After some seven years of contest by the testator's widow, the will was eventually held to be valid. The plaintiffs then brought suit to recover possession of their share of the personal property which
True, Holmes was not, strictly speaking, a party either to the proceedings to probate Weber's will or to the will contest which followed (See In re Estate of Weber, supra). However, under the circumstances of this case, that fact is not material. Lillian Price was just as effectively precluded from proceeding against Mr. Holmes as if he had been an actual party to the will contest. We might mention at this point that Mr. Holmes was fully apprised of the contest proceedings, having testified in district court on behalf of the proponent of the will.
What we have already said disposes of the defendant's claim that the plaintiff is estopped from maintaining this action because Lillian Price participated in the proceedings to probate Weber's will. The institution of probate proceedings, either by Lillian Price or some other party interested in establishing the will, and an adjudication that the will was invalid, were both prerequisites to the institution of the present action. The record before us does not clearly disclose what part Lillian Price took in the former proceedings, but if we assume that she actively participated therein, no estoppel is to be inferred from that; she would be doing only what was required be done before this action could be maintained.
For reasons set out herein, the judgment must be reversed with directions to overrule the defendant's motion for summary judgment. It is so ordered.
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