McLaughlin v. Rapp

184 Kan. 58 (1959)

334 P.2d 431

RUSSEL McLAUGHLIN, Appellant, v. J.C. RAPP, Appellee.

No. 41,137

Supreme Court of Kansas.

Opinion filed January 24, 1959.

H.E. Pat Healy and Keith Eales, both of Wichita, argued the cause and were on the brief for the appellant.

H.E. Jones, of Wichita, argued the cause, and A.W. Hershberger, Richard Jones, Wm. P. Thompson, Jerome E. Jones, Robert J. Roth, Robert L. NeSmith and Justus H. Fugate, all of Wichita, were with him on the brief for the appellee.

The opinion of the court was delivered by

PRICE, J.:

This is a damage action, and the appeal is from an order sustaining a demurrer to the petition.

The case is a companion to that of Steele v. Rapp, 183 Kan. 371, 327 P.2d 1053, decided on July 7, 1958, in that it arises out of the same incident, namely when a bottle of fingernail polish remover, sold by defendant, ignited and exploded.

Defendant, J.C. Rapp, a distributor of preparations and supplies for beauty shops, also was the defendant in the Steele case. In that case the action was by an employee of the beauty shop to recover for her personal injuries sustained as a result of the fire and explosion. In the case before us the action is by the owner and operator of the beauty shop to recover for the destruction of his shop and loss of business profits as a result of the fire and explosion. Except for those allegations relating to the type, nature and extent of damages due to the difference in plaintiffs, the petition in this case is substantially identical to that in the Steele case, and which was held to be good as against a demurrer. The opinion in that case sets out the material portions of the petition there involved, *59 rendering it unnecessary to do likewise in this opinion with respect to the petition now before us.

No useful purpose would be served by repeating what was said in the four opinions of the Steele case in which all contentions were thoroughly covered. We have reviewed that decision and are of the opinion it is controlling in the present case. It follows, therefore, that the demurrer to the petition in the instant case, which, incidentally, was sustained prior to the decision in the Steele case, should have been overruled.

The judgment is reversed with directions to overrule the demurrer to the petition.

PARKER, C.J., PRICE and SCHROEDER, JJ., dissent.