Bell v. Harmon

• Decision Date: 09 December 1955
• Citation: 284 S.W.2d 812
• Parties: Floyd BELL, Appellant, v. Ernest Edward HARMON, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 812

284 S.W.2d 812

Floyd BELL, Appellant, v. Ernest Edward HARMON, Appellee.

Court of Appeals of Kentucky.

Dec. 9, 1955.

Smith & Blackburn, Somerset, for appellant.

Leonard S. Stephens, Whitley City, for appellee.

CLAY, Commissioner.

Plaintiff was a passenger in an automobile driven by defendant when it collided with another driven by one Johnson. Plaintiff sued both the defendant and Johnson, and the jury returned a verdict against the defendant, exonerating Johnson.

The sole question on this appeal by the defendant is whether or not plaintiff's testimony in this suit with respect to the cause of the accident constituted a judicial admission that the defendant was not negligent. This question was raised by defendant on a motion for summary judgment under CR 56 and on a motion for a directed verdict at the conclusion of the plaintiff's evidence. Both motions were denied.

The accident happened on a straight stretch of the highway in broad daylight. The defendant's automobile and that of Johnson were proceeding in opposite directions. The collision was caused by the swerving of one of the automobiles to the wrong side of the road.

In a pre-trial deposition the testimony of the plaintiff established that the sole cause of the accident was the negligence of the operator of the other automobile, and that the defendant was not negligent. On the basis of this testimony, which constituted a judicial admission (hereinafter to be discussed), we are of the opinion the trial court would have been justified in granting the defendant a summary judgment. This presents the question as to whether or not this Court should review the action of the trial court in denying the motion therefor.

The Federal courts seem to assume that an order denying a motion for summary judgment is not reviewable because not appealable. See 6 Moore's Federal Practice, 2d Ed., Section 2362; Drittel v. Friedman, 2 Cir., 154 F.2d 653; Dutton v. City Service Defense Corp., 8 Cir., 197 F.2d 458. Clearly such an order, being interlocutory, is not appealable. See Clay, CR 56.03, Comment 7. However, though not independently appealable, certain interlocutory orders are reviewable in conjunction with a final judgment; e. g., an order overruling a motion for a directed verdict; an order granting a new trial. Thus the determination that an order denying summary judgment is not appealable does not necessarily resolve the question of whether such an order may be reviewed when properly presented.

However, we think sound reasoning supports the conclusion that an order denying summary judgment should not be reviewed on appeal. (In passing it may be noted that an order granting such judgment is a final order and is of course forthwith appealable.)

Summary judgment procedure is not a substitute for a trial. It is a time saving device, and the motion should only be sustained if the court is fully satisfied that there is an absence of genuine and material factual issues, and all doubts are to be resolved in favor of the party opposing the motion. See Hoskins' Administrator v. Kentucky, Ridge Coal Company, Ky., 277 S.W.2d 57; Kimble v. Anderson-Tully Company, D.C.Ark., 16 F.R.D. 502.

The Federal appellate courts have recognized the limited scope of summary judgment procedure, and have consistently cautioned trial courts against granting motions for summary judgment if any doubt exists as to the right of a party to a trial. To hold that there may be a review of the trial court's determination that a party is entitled to a trial would be inconsistent with this admonition to proceed cautiously when granting a summary judgment. It would put the appellate court in the position of trying the question of doubt in the mind of the trial judge. We do not think this would be proper review.

Our refusal to review an order denying a summary judgment can in no sense prejudice the substantive rights of the party making the motion since he still has the right to establish the merits of his motion upon the trial of the cause. If the contrary were held, one who had sustained his position after a fair hearing of the whole case might nevertheless lose, because he had failed to prove his case fully on an interlocutory motion.

We therefore decline to consider the possible error in the denial of defendant's motion for summary judgment. Consistent with CR 61.01, such error, if any existed in the ruling on this motion, was not prejudicial and does not constitute a ground for reversal of the judgment.

The same question presented on defendant's motion for summary judgment was again raised at the trial by a motion for a directed verdict at the conclusion of plaintiff's testimony and renewed when the plaintiff had closed his case. The ground of this motion was that plaintiff's own testimony constituted a judicial admission that defendant was not negligent.

Plaintiff testified as follows: He was riding in the front seat of defendant's automobile which was being driven at 30 or 35 miles an hour 'to the right of the center line' of the road. The accident occurred on defendant's right side of the road. Plaintiff observed the oncoming cardriven by Johnson when he was about 100 feet away and at that time the Johnson car was on its proper side of the road. Plaintiff stated:

'--when he got near us he made a cut like this to our right * * * and his car hit us in the face.'

The Johnson car did not cut across the road into defendant's driving lane until he was 'some 20 feet in front of us'. Plaintiff stated that defendant 'never got over on the Johnson side of the road at any time before this collision occurred'.

The sum and substance of plaintiff's testimony is that while defendant was operating his automobile in a careful manner at a reasonable speed on his right side of the road, the Johnson car suddenly without warning cut over into defendant's driving lane and caused the collision. Plaintiff was in a position to observe, and did observe exactly how this accident happened. His testimony establishes unequivocally that the sole cause of this accident was the negligence of Johnson, and defendant was in no respect negligent.

It is well recognized that the testimony of a party may constitute a judicial admission, and as such is binding and conclusive upon him. 20 Am.Jur., Evidence, Section 1181; 31 C.J.S., Evidence, § 381; Wigmore on Evidence, 3d Ed., Vol. 9, Section 2594A. The rule should be applied with caution because of the variable nature of testimony and because of the ever-present possibility of honest mistake. A judicial admission of this kind should in essence contain the elements of waiver. See Alamo v. Del Rosario, 69 App.D.C. 47, 98 F.2d 328. It is in some respects similar to an election of causes of action. See Rowe v. Shepherd, Ky., 283 S.W.2d 188.

In 31 C.J.S., Evidence, § 381(d) we find the following positive statement:

'Admissions made in the testimony of a party while a witness in the case are binding and conclusive if deliberate and unequivocal and unexplained or uncontradicted.'

And further in the same section:

'* * * the admissions of a party in his testimony are as a general rule binding on him and preclude him from avoiding the consequences of his testimony by the introduction of, or reliance on, other evidence in the case unless the circumstances and conditions give rise to the probability of error in the party's own testimony or unless the effect thereof is avoided by some explanation.'

In Kentucky we have recognized that even though contradicted, testimony of the plaintiff may constitute a judicial admission in an automobile accident case. Sutherland v. Davis, 286 Ky. 743, 151 S.W.2d 1021. There it was held that when the plaintiff testified she knew the driver with whom she was riding was intoxicated, she was concluded by her own testimony and thereby admitted contributory negligence, even though there was conflicting testimony with respect to the driver's condition. The opinion was based in part upon the fact that the plaintiff's state of mind was peculiarly within her knowledge, but matters other than state of mind may likewise be peculiarly within the knowledge of a party.

A case on all fours with the present one is Mollman v. St. Louis Public Service Co., Mo.App.1946, 192 S.W.2d 618. There the plaintiff was a passenger in a taxicab that collided with a streetcar. She testified in substance the taxicab had been operated in a proper manner and the accident was caused by the negligence of the operator of the streetcar. The Missouri court, in holding a directed verdict should have been given for the defendant taxicab company, made the following observations, at pages 621, 622:

'But if he testifies positively and understandingly to the basic facts and circumstances in the case, and in the event his testimony would defeat his recovery, he makes no subsequent correction or modification under the claim of confusion or mistake, he may not have the benefit of the testimony of other witnesses which is contradictory of his own testimony with respect to the same matters. In other words, he cannot make out a better case for himself than he himself has testified to where his case involves facts within his...