Volume 209 — Kansas Reports

SYLLABUS BY THE COURT 1. TRIAL — <italic>Motion to Dismiss — How Motion to Be Decided.</italic> When a motion to dismiss under K.S.A. 1971 Supp. <cross_reference>60-212</cross_reference> (<italic>b</italic>) (6) puts at issue the legal sufficiency of a claim for relief, the motion must be decided from the well-pleaded facts and, in such case, the motion may be treated as the modern equivalent of a demurrer. 2. SAME — <italic>When Dismissal of Petition Justified.</italic> Dismissal of a plaintiff's petition pursuant to a motion filed under <cross_reference>60-212</cross_reference> (<italic>b</italic>) (6) is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim for relief. 3. INSURANCE — <italic>Broker Undertakes to Procure Insurance —</italic> <italic>Failure to Procure — Liability.</italic> A broker or agent who undertakes to procure insurance for another and through his fault or neglect fails to do so will be held liable for any damage resulting therefrom. 4. ACTIONS — <italic>Action in Tort — When Action Accrued.</italic> Under the allegations of the petition, set out in the opinion herein, the cause of action alleged in tort accrued, not when the alleged tortious act was committed, but on the date actual damages were alleged to have resulted therefrom. 5. LIMITATION OF ACTIONS — <italic>Right of Action Suspended by Legal</italic> <italic>Proceedings — Tolling Statute.</italic> The rule in this jurisdiction is that if a person is prevented from exercising his legal remedy by the pendency of legal proceedings, the running of the statute of limitations applicable to the remedy is postponed, or if it has commenced to run, is suspended or tolled, during the time the restraint incident to the proceedings continues. 6. CONTRACTS — <italic>Third Party Beneficiaries.</italic> A person may avail himself of a promise made by a second party to a third for the benefit of the first, although the latter was not a party to it and had no knowledge of it when made. 7. JUDGMENTS — <italic>Res Judicata — Persons Affected — Mutuality</italic> <italic>of Estoppel.</italic> The rule that a plea of res judicata may be asserted only by a person who was a party or in privity with a party to the prior action is based on the doctrine of mutuality of estoppel; that is, a litigant can invoke the conclusive effect of a prior judgment only if he would have been bound by it had it gone the other way. As a result of the mutuality of estoppel requirement, a person who is not a party or privy to a party to an action in which a valid<page_number>Page 538</page_number> judgment other than a judgment <italic>in rem</italic> is not bound by or entitled to claim the benefits of an adjudication upon any matter decided in the action.