(concurring in part and dissenting in part): Limitations of time and other duties preclude an extended treatment of questions involved.
This action was framed in two counts. The first was based on the doctrine of res ipsa, loquitur. It sounds in negligence, in tort. The second count was based on breach of implied warranty. It sounds in contract.
I would have difficulty sustaining the first count on the basis of some of our past decisions involving the doctrine of res ipsa loquitur and I shall not endeavor to do so. It has been and now is my view that we have applied the doctrine too narrowly in some of our cases. Although I doubt the soundness of parts of some of the opinions from other jurisdictions cited in the opinion I concur in the result reached by the court on the first cause of action.
The second count, as stated, is based on implied warranty, contract. A warranty is a contract. I cannot agree that count can be tortured into an action in tort by alleging a “negligent breach of warranty.” Whether the contract was breached as a result of negligence or deliberately is wholly immaterial insofar as the fundamental nature of the cause of action is concerned. It remained a cause of action to recover damages for breach of warranty. That plaintiff could waive the tort in an action such as this and sue on “implied warranty” has been definitely established (Swengel v. F. & E. Wholesale Grocery Co., 147 Kan. 555, 77 P. 2d 930) but in my opinion she could not transform the contract action into a tort action. Moreover, she had already sued on tort in the first count.
I have no doubt the demurrers on the ground of misjoinder of causes of action on contract and tort should have been sustained. *632G. S. 1949, 60-705 expressly authorizes the challenging of a petition by demurrer for improper joinder of causes of action where the misjoinder appears on the face of the petition. See, also, G. S. 1949, 60-601, on joinder of causes of action. It is unnecessary to extend the opinion with a long list of cases holding actions on contract and tort are distinctly inconsistent and may not be joined. See the numerous cases on the subject listed under the last two statutes cited. In addition thereto see, also, the recent case of Frier v. Proctor & Gamble Distributing Co., 173 Kan. 733, 735, 252 P. 2d 850, which was an action against a manufacturer and the distributor of “Tide” to recover damages for injuries to a dishwasher’s hands resulting from the use of the product. The trial court there required plaintiff to elect whether she was suing “on a contract of warranty or upon negligence.” Roth causes of action, as here, grew out of the same transaction. We held the ruling was proper and said, “The theories and bases of recovery are distinct and conflicting,” and referred to Burks v. Aldridge, 154 Kan. 731, 121 P. 2d 276, and authorities there cited.
It is impossible for me to conceive of a case more directly in point on the question of misjoinder of actions on contract and tort tiran the Frier case, supra. To be sure the question there arose on a motion to elect after evidence was introduced but manifestly that does not change the question involved.
The ruling on a demurrer to a petition for improper joinder of causes of action is an appealable order and is expressly made so in order that a plaintiff may be compelled to frame properly, before the commencement of the trial, the issues which may be tried together. To hold otherwise is to nullify the statute making the ruling on demurrer appealable. It readily is conceded the practice in the various states differs. We are here concerned only with our own civil code and the construction we have placed thereon.
It also is well to observe that under the pleadings as now framed it would be entirely possible for a jury to render a verdict against one defendant on contract and against the others on tort. I do not believe that is permissible under the provisions of G. S. 1949, 60-601, and the cases cited thereunder.