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MATHIS v. TG & Y2/29/1988
The opinion of the court was delivered by
Plaintiff/appellant Jack Mathis filed a personal injury suit against defendant/appellee TG&Y. Prior to adjudication of the action, plaintiff filed a second suit, arising out of the same set of facts, against other defendants. Plaintiff settled the second suit and it was dismissed with prejudice. TG&Y moved for dismissal of this suit claiming that the dismissal of the second action precluded Mathis from proceeding in this suit. The district court dismissed based on Albertson v. Volkswagenwerk Aktiengesellschaft, 230 Kan. 368, 634 P.2d 1127 (1981). We disagree with the district court's application of Albertson and reverse and remand this case for further proceedings.
Mathis alleged a loose door closure hit his head as he was leaving a TG&Y store in Wichita, resulting in tinnitus and
hearing loss. Mathis sued TG&Y in Case No. 85-C-1451 on May 1, 1985. In response to interrogatories, TG&Y stated that it intended to compare the negligence of Jacobs Construction Co., Inc., (its landlord) and Hopper's Mirror & Glass, Inc., who had done repair work on the doors. Mathis amended his petition in February, adding these two companies as defendants and also G. & J. Investments, Inc., the original landlord. This suit will be designated the "original suit" for purposes of this opinion.
Later, after discovering that the actual landlord was Vernon Jacobs personally, and that Jacobs had hired Cheney Door Company, Inc., to maintain the doors, Mathis filed a separate suit, 86-C-1466, against those two parties on April 28, 1986, alleging the same facts and injuries. TG&Y never became a party in the second suit.
On June 6, 1986, defendants G. & J. Investments, Inc., Jacobs Construction Co., Inc., and Hopper's Mirror & Glass, Inc., were dismissed without prejudice from the original suit. On September 10, 1986, defendant Cheney Door Company, Inc., was dismissed with prejudice from the second suit. Later, on September 18, 1986, the remaining defendant in the action, Vernon Jacobs, was dismissed. The dismissal order stated the claim had been settled between Jacobs and Mathis. Because of the dismissal of the second suit, there was no judicial adjudication of comparative fault of the defendants.
In the original action, the remaining defendant, TG&Y, rather than joining the other parties to compare their fault, moved to dismiss based on the principles of comparative negligence stated in Albertson v. Volkswagenwerk Aktiengesellschaft, 230 Kan. 368, and Teepak, Inc. v. Learned, 237 Kan. 320, 699 P.2d 35 (1985). The journal entry granting TG&Y's motion to dismiss stated:
"The court finds that as a matter of law and pursuant to Albertson v. Volkswagen, and the other cases cited by defendants, plaintiff has split his cause of action, violated the comparative fault doctrine, and that his case against T.G. & Y. should be dismissed."
The plaintiff appealed. The appeal was transferred to this court on our order pursuant to K.S.A. 20-3018(c).
The legislature's purpose in passing K.S.A. 60-258a was twofold: (1) to abolish contributory negligence as a bar to recovery
and (2) to provide for the awarding of damages on the basis of comparative negligence.
Prior to the enactment of 60-258a, when a plaintiff obtained a judgment against two or more tortfeasors, contribution between the tortfeasors was authorized by K.S.A. 60-2413(b). A plaintiff could choose his defendant and a defendant had no right to bring other tortfeasors into the plaintiff's action. If a plaintiff sued and recovered a judgment against
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