Blackburn v. Colvin
| Decision Date | 06 April 1963 |
| Docket Number | No. 43133,43133 |
| Parties | Robert BLACKBURN, Appellee, v. John COLVIN, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. When a notice of appeal particularly specifies the orders of the district court from which the appeal is made, but such notice does not include the rulings on a demurrer to the plaintiff's evidence or on a motion for a directed verdict made during the trial, the orders of the district court overruling the demurrer and the motion for a directed verdict are no part of the appeal and present nothing for appellate review.
2. A motion for a new trial is neither necessary, proper nor essential to a review of orders of the district court overruling a demurrer to plaintiff's evidence or a motion for a directed verdict.
3. A notice of appeal particularly specifying the order overruling a motion for a new trial which included as grounds therefor orders of the district court overruling a demurrer to plaintiff's evidence and a motion for a directed verdict made during the trial, does not permit appellate review of the rightness or wrongness of such rulings and they are no part of the appeal.
4. The record in an action to recover damages for personal injury caused by a dangerous condition created by the defendant upon his premises and his failure to warn the plaintiff who was a licensee, is examined, and it is held: The district court's instructions to the jury, when considered as a whole and in the light of each other, properly submitted the issue of willful, intentional or reckless negligence on the part of the defendant, and answers to special questions were not inconsistent with each other or with the general verdict so as to require judgment for the defendant upon his motion for judgment notwithstanding the general verdict.
Lewis Sanders, Kansas City, Mo., argued the cause, and paul H. Niewald, Kansas City, Mo., and A. J. Herrod, of Kansas City, were with him on the briefs for appellant.
Joseph T. Carey, Kansas City, argued the cause, and David W. Carson, John K. Dear, Ernest N. Yarnevich, J. W. Mahoney and John H. Fields, Kansas City, were with him on the briefs for appellee.
This was an action for damages sustained by the plaintiff in the partially constructed home of the defendant. The case was tried to a jury which returned its verdict in favor of the plaintiff for $7,000 and answered special questions. The district court approved the verdict and entered judgment thereon in favor of the plaintiff.
The defendant makes eight assignments of error, but briefs and argues only three. Under such circumstances, the assignments of error not briefed or argued are considered abandoned and on appeal will not be reviewed or considered. (Brent v. McDonald, 180 Kan. 142, 300 P.2d 396.) The three assignments of error briefed and argued are (1) the overruling of the defendant's demurrer to plaintiff's evidence; (2) whether the court's instructions properly submitted the issue of willful, intentional or reckless acts on the part of the defendant, and (3) whether the jury's special findings of fact are inconsistent with each other and of such nature that they should control the general verdict and require judgment for the defendant.
With respect to the first assignment of error, at the close of the plaintiff's evidence the defendant interposed a demurrer thereto upon various grounds, one being that the evidence showed the plaintiff was a mere licensee and the evidence failed to show that the defendant willfully intentionally or recklessly injured the plaintiff, and that the dangerous condition, if any existed, was obvious to the plaintiff and that he was guilty of contributory negligence as a matter of law. The demurrer was overruled and the defendant announced he would offer no evidence but would stand on the demurrer. Thereafter, the defendant moved for judgment on the pleadings and evidence for the reasons given in support of the demurrer. The motion was overruled, and the cause was submitted to the jury upon the plaintiff's evidence.
In his notice of appeal, the defendant did not include the orders overruling his demurrer to plaintiff's evidence or overruling his motion for a directed verdict but he did include the order overruling his motion for a new trial. Among other things, the motion for a new trial contained as grounds therefor the overruling of the defendant's demurrer to plaintiff's evidence and the overruling of his motion for a directed verdict. Under such circumstances, neither the order overruling the demurrer to plaintiff's evidence nor the order overruling the motion for a directed verdict is presented for appellate review. In Nicholas v. Latham, 179 Kan. 348, 295 P.2d 631, it was held:
'When a notice of appeal particularly specifies the order of the trial court from which the appeal is made, but such notice does not include the ruling on a demurrer made during the trial, the order of the trial court overruling the demurrer is no part of the appeal and presents nothing for appellate review.' (Syl. p1.)
This holding has been followed many times by this court. (Pennington v. Kansas Turnpike Authority, 180 Kan. 638, 639, 305 P.2d 849; Dryden v. Rogers, 181 Kan. 154, 156, 309 P.2d 409; Gaynes v. Wallingford, 185 Kan. 655, 658, 347 P.2d 458; Rockhill, Administrator v. Tomasic, 186 Kan. 599, 602, 352 P.2d 444; Schauf v. Peter Kiewit & Sons Co., 187 Kan. 180, 184, 354 P.2d 687.)
Nor does the appeal from the order overruling the motion for a new trial under the circumstances here presented permit appellate review of the demurrer to the evidence or the motion for a directed verdict. An order overruling a demurrer to evidence is made separately appealable by the code of civil procedure (G.S.1949, 60-3302, Second), and the rightness or wrongness of such an order is reviewed as a question of law and is not one which is proper to be included in a motion for a new trial. Hence, a ruling on a demurrer to evidence is not a trial error which requires a motion for a new trial as a condition for appellate review. In Stock v. Union Pacific Railroad Co., 183 Kan. 659, 331 P.2d 549, it was held that a motion for a new trial was neither necessary, proper nor essential to a review of the order sustaining a demurrer to plaintiff's evidence and the filing of such a motion did not extend the time for appeal from the order sustaining the demurrer or the judgment rendered pursuant thereto. See, also, Andrew v. Hein, 183 Kan. 751, 332 P.2d 278, where it was held that a ruling on a demurrer to evidence is restricted to the evidence admitted and considered in ruling on the demurrer, and on appeal from such ruling, trial errors involved in the admission or rejection of evidence are not subject to review unless they are raised by a motion for a new trial. Obviously, that is not the case presented by this record. Thus, the question whether the plaintiff's evidence presented a submissible case to the jury on the issue of the defendant's breach of duty to refrain from willfully, intentionally or recklessly injuring the plaintiff is not before us for review.
The plaintiff's evidence is summarized: The plaintiff and defendant are brothers-in-law. The defendant was constructing a house which had been 'roughed in' by a contractor. The plaintiff was helping the defendant finish the house in his spare time. Plaintiff had worked installing septic laterals and had helped felt in the roof. On or about November 10, 1957, plaintiff and defendant unloaded sheet rock at the defendant's house. Twenty-two sheets were placed on edge leaning against the living room wall. The sheet rock was 4 X 8 feet and 1/2 inch thick, and each sheet weighed 64 pounds, for a total of 1408 pounds. The sheet rock was stacked with the bottom edge 8 to 12 inches from the wall. Two days before the accident, the defendant moved the stacked sheet rock out from the wall to facilitate his installation of furnace ducts. He constructed a 'dead man' or a triangular brace out from the wall on which he stacked the sheet rock. A 'dead man' is similar to the structure commonly seen at the end of a railroad track, used to keep cars from running off the track. Defendant laid the sheet rock over on the dead man while he worked on the furnace ducts and after completing the work, he stacked the sheet rock up against the wall again.
On Sunday, December 8, 1957, plaintiff and defendant went to the defendant's house at the defendant's invitation. They entered the living room and the defendant stood at the end of the stack of sheet rock and the plaintiff stood at the side of the stack. The plaintiff did not know that the defendant had moved the sheet rock and assumed that it was in the same position it was when he and the defendant stacked it. The defendant had built other houses and plaintiff assumed he knew how to safely stack sheet rock. The plaintiff observed the sheet rock in the same general area as it had been when he and the defendant stacked it. There was nothing to indicate that the position had been changed and the only person who could have been expected to know that it was stacked too straight against the wall was the defendant who stacked it in that manner. The first plaintiff knew of danger was when someone hollered 'look out' and the stack started to fall. He ran backwards but could not run fast enough, and he was pinned beneath the 1408 pounds of sheet rock sustaining serious injury.
Following the accident, the defendant told plaintiff that the sheet rock fell because it had been 'stacked up too straight against the wall.'
W. G. Dagg, an expert on the storing and handling of sheet rock testified that he had been in the sheet rock business eight years and that his company handled an average of seven car loads of sheet rock per week, each car load containing 1440 pieces. He testified that sheet rock stored in a vertical or near vertical position is a constant danger. During his...
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