Alseike v. Miller
| Citation | 196 Kan. 547,412 P.2d 1007 |
| Decision Date | 09 April 1966 |
| Docket Number | No. 44408,44408 |
| Parties | Lesslie G. ALSEIKE, Plaintiff and Appellee, v. Edith M. MILLER, Defendant and Third-Party Plaintiff, Appellant, v. Vernon L. LADD, an individual, James McIntosh and Hugh Shea, co-partners, d/b/a Cycle Escort Service, Third-Party Defendants and Appellees. |
| Court | United States State Supreme Court of Kansas |
1. K.S.A. 60-214(a) permitting a defendant to implead a third party pertains to procedure only and does not create any substantive rights.
2. Third-party practice is simply a permissive procedural device whereby a party to an action may bring in an additional party and claim against such party because of a claim that is being asserted against the original party.
3. Although it is the purpose of K.S.A. 60-214(a) to permit the entire controversy in a single proceeding to be determined, it is only the liability of the third-party defendant to the original defendant for the original defendant's liability to the plaintiff that is to be determined.
4. Kansas adheres to the common law rule that there is no right of contribution between joint tortfeasors.
5. Where no right of contribution exists as between joint tortfeasors, a defendant has no right to bring in under the provisions of K.S.A. 60-214(a) a joint tortfeasor who was not made a party by the plaintiff.
6. A showing of good cause therefor must be made before production of documents will be ordered pursuant to K.S.A. 60-234.
7. The requisite showing of good cause for materials sought pursuant to K.S.A. 60-234 must be something more than a mere showing that they are relevant to the subject matter involved in the action.
8. A trial court has a wide discretion in determining what constitutes good cause for the production of documents, depending upon the particular facts of each case.
9. A trial court has no discretion to require the production of any writing prepared by, or under the supervision of, an attorney in preparation for trial.
10. Statements taken by a claims adjuster on behalf of the insurance carrier of an insured involved in an automobile collision, not taken under the supervision of an attorney in preparation for trial, are not protected by the Kansas work product rule embodied in K.S.A. 60-226(b).
11. Privilege, within the meaning of our statutes governing discovery, is the privilege as it exists in the law of evidence.
12. Our statutes affording protection of privileged material from discovery upon the basis of lawyer-client relationship do not extend to statements of a party taken by a claims adjuster on behalf of the party's insurance carrier.
13. The record of trial in an action for damages for personal injury wherein it was claimed the trial court erred in dismissing a third-party proceeding and in ordering production by defendant of certain written statements taken by a claims adjuster examined, and held, no error.
F. C. McMaster, Wichita, argued the cause, and Stanford J. Smith, Wichita, was with him on the brief for Edith M. Miller, third-party plaintiff and appellant.
Gerald L. Michaud, of Wichita, argued the cause and Russell Cranmer, Orval L. Fisher, and M. William Syrios, Wichita, were with him on the brief for Leslie G. Alseike, plaintiff and appellee.
H. E. Jones, Wichita, argued the cause, and Clarence R. Sowers, John W. Sowers, Davis S. Carson, A. W. Hershberger, Richard Jones, William P. Thompson, Jerome E. Jones, Robert J. Roth, William R. Smith, and Robert J. O'Connor, Wichita, were with him on the brief for the third-party defendants and appellees.
HARMAN, Commissioner.
Two separate procedural questions make up this appeal. The action was commenced as one for damages for personal injury. Plaintiff, an off-duty Wichita police officer, alleged in his petition his injury resulted from a collision with an automobile operated by defendant while in a funeral procession, which procession was being escorted by plaintiff on his motorcycle. Plaintiff asserted that defendant negligently drove her automobile out from the line of vehicles in the funeral procession into the path of plaintiff's motorcycle. Defendant filed her answer admitting that she was operating a vehicle at the time and place in question but denying generally the other allegations of plaintiff's petition and asserting that any injury to plaintiff was caused by his own negligence. She further alleged in the alternative that one Vernon L. Ladd, another off-duty police officer who was escorting the procession, and plaintiff were co-adventurers and agents of each other and that Ladd's negligence was the proximate cause of plaintiff's injuries.
At the same time, defendant filed a third-party proceeding against the said Ladd and also against James McIntosh and Hugh Shea, doing business as Cycle Escort Service. In her third-party petiton defendant incorporated the allegations of her answer and she further alleged that Ladd was the employee of McIntosh and Shea who had contracted with a mortuary to provide a motorcycle escort of uniformed police officers to escort the funeral procession in question; that while Ladd was so acting in providing such escort service, being stationed at an intersection immediately prior to the collision at which defendant attempted to make a left turn, he permitted the defendant and the plaintiff to collide; the third-party defendants were charged with eleven grounds of negligence causing the collision, and her prayer asked that she, as third-party plaintiff, recover judgment against the third-party defendants for the amount of any judgment rendered against her in favor of the plaintiff.
Upon motion of the third-party defendants the proceeding against them was dismissed. Defendant appeals from that order of dismissal.
This third-party action is to be sustained, if at all, pursuant to the provisions of K.S.A. 60-214(a), the pertinent part of which is as follows:
It may first be noted that this statute pertains to procedure only and does not create any substantive rights. The statute relates generally to the subject of reimbursement, indemnity or contribution but it creates no substantive right to the same. There must be some substantive basis for the third-party claim before one can utilize the procedure of 214(a). Third-party practice is simply a permissive procedural device whereby a party to an action may bring in an additional party and claim against such party, because of a claim that is being asserted against the original party. It has been said that the general purpose of the practice is to avoid circuity of action and to dispose of the entire subject matter arising from one set of facts in one action, thus administering complete and even-handed justice expeditiously and economically (see 1A Barron and Holtzoff, Third-Party Practice, § 422, p. 644).
In order to come under 214(a) the defendant's claim against the third-party defendant must be such that latter 'is or may be liable to him for all or part of the plaintiff's claim against him.' The advisory committee for our present code of civil procedure had this to say with respect to the section:
'Although it is the purpose of the provision to permit the entire controversy in a single proceeding to be determined, it is only the liability of the third-party defendant to the original defendant for the original defendant's liability to the plaintiff that is to be determined.' (Gard's Kansas Code of Civil Procedure, Advisory Committee Notes, p. 74.)
Thus we see it is not a device for bringing into an action any controversy which may happen to have some relation with it.
In her third-party petition defendant makes an ingenious argument that she is the beneficiary of an implied warranty by reason of the contractual relation between the mortuary and the third-party defendants, for which she would assert a breach, but it is clear her petition states a cause of action sounding in tort, being based on negligence, and must be so construed. The third parties sought to be joined here are simply alleged joint tortfeasors, being the other motorcycle officer involved in the collision and his principals, and it must be held that what is sought here is contribution between joint tortfeasors. Kansas adheres to the common law rule that there is no right of contribution between joint tortfeasors (Rucker v. Allendorph, 102 Kan. 771, 172 P. 524). In enacting our present code of civil procedure the legislature declined to create this right as initially recommended by the advisory committee (see JCB, Nov. 1962, Special Report, Recommendations, p. 38). Contribution being forbidden there is no way in which the third-party defendants are or may become liable to defendant for all or part of plaintiff's claim against defendant. Our 214(a) is identical with the present Federal Rule 14(a). The case of McPherson v. Hoffman, 275 F.2d 466 (6th Cir., 1960), was an action brought by a railroad employee for injury sustained while being transported in a truck of the railroad which collided with an automobile of third persons, wherein the railroad as third-party plaintiff brought in such third persons as third-parties defendant. The court said:
'The theory of this rule is indemnity, that is, liability over from the third-party defendant to the defendant. Moore's Federal Practice, Vol. 3, Section 14.16 (2d Ed.) Counsel for the Chesapeake and Ohio argue in their brief that they were entitled to such indemnity from the third-parties defendant.
'We take up first whether or not the third-party complaint stated a claim against third-parties defendant. It charged the McPhersons with being solely responsible for the accident through their negligence. If...
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