Garrity v. State Board of Administration

Supreme Court of Kansas · 1917 · Civil Procedure

162 P. 1167 (Kan. 1917)

Updated July 29, 2026

Civil ProcedureStatute of LimitationsRelation BackImplied ContractSuing State Agencieswaiver of tortimplied promiseconversion

Facts

The petition alleged that in July 1911 the board of regents of the state university, acting through its assistant curator of mammals, wrongfully entered plaintiff's farm in Wallace County, removed a valuable fossil, and placed it in the university museum. Plaintiff alleged the fossil was worth $2,500 and that he had received no compensation. The original petition, filed June 9, 1914, named only the state board of administration, which plaintiff alleged was the successor to the board of regents and subject to its obligations. On November 2, 1914, plaintiff amended the petition to add individual members of the board of administration and trustees of the former board of regents as defendants.

Issue

Whether plaintiff's petition could proceed despite limitations by treating the claim as one on an implied promise to pay for converted property rather than as a tort claim. Whether adding new defendants after three years had elapsed related back to the original filing, and whether the action could be maintained against the state board of administration at all.

Rule

When a petition's allegations are sufficient to support either tort or contract, and it is doubtful whether the action is ex contractu or ex delicto, every intendment favors construing it as an action on contract; thus a plaintiff may waive the tort and sue on an implied promise to pay the value of converted property. But filing against one defendant does not toll limitations as to another person not made a defendant until after the statutory period has run. Also, a noncorporate state board managing a state institution cannot be sued absent express statutory authority, and statutory authority to execute institutional trusts or obligations does not make the board or its members liable for a predecessor board's tort.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In 2020, employees of Red Prairie Research Center entered Lena Ortiz's ranch outside Dodge City, Kansas, without permission and removed a rare mineral specimen that now appears in the center's display hall. In 2023, Ortiz sues seeking the specimen's market value, alleging wrongful taking, retention, benefit to the institution, and no compensation paid.

If the defendant argues the claim is barred by the two-year statute for torts, what is the strongest response under the governing rule?

Explanation. Where a petition's allegations are sufficient to support either tort or contract, and it is doubtful whether the action is ex delicto or ex contractu, every intendment favors construing it as contractual. Thus a plaintiff may waive the tort and sue on an implied promise to pay the value of converted property. The majority did not require special labels or a resale of the property.