Fenly v. Revell

The opinion of the court was delivered by The plaintiff instituted this action against the defendants to recover money he had paid a third party in settlement of damages sustained by the latter as a result of defendants' negligence while in his employ. The appeal is from a judgment sustaining a demurrer to an amended petition, based on grounds such pleading showed on its face the plaintiff was not the real party in interest and failed to state facts sufficient to constitute a cause of action in his favor and against defendants. The pleading in question, which does not appear from the record before us to have been motioned and is therefore entitled to a liberal construction, contains everything required to permit proper disposition of all questions raised by the parties and should be quoted at length. Omitting formal averments and the prayer it reads: ""3. That at all times hereinafter mentioned Cleo Revell was a contractor in the business of transporting equipment for those who desired and contracted for his services; that at all times hereinafter mentioned Arthur D. Branson was an agent and employee of said Cleo Revell assisting Cleo Revell in carrying out his business of the transportation of equipment. ""4. That on or about the 11th day of July, 1948, the plaintiff employed defendants to assist in moving a rotary rig belonging to Braden-Greene Drilling Company, located at Well No. C-3 on the Braden lease, Southeast of Hutchinson, Reno County, Kansas, that plaintiff contracted to move for said Braden-Greene Drilling Company; that in performing this job defendant, Arthur D. Branson, was using a truck on which a gin pole was mounted; a winch line was run from a winch on the truck through the snatch block of the gin pole, and attached to the rotary rig; that while in the process of hoisting the rotary rig on to plaintiff's truck, by means of the winch and gin pole the operator of defendant's truck negligently permitted the end chain on the end of the winch line to pass through the snatch block on the gin pole, which snatch block was too small to permit the entry of the end chain, thereby causing the end chain to break because of undue strain and permitted the rig to fall, damaging said rig thereby. ""5. That the injury sustained by plaintiff was due to the negligence of defendant which was the sole and proximate cause of plaintiff's injury in the following particulars, to-wit: ""(a) Failure to maintain a proper lookout. ""(b) Failure to properly operate the winch on defendant's truck.