Brown v. Hardin

• Decision Date: 05 November 1966
• Docket Number: No. 44545,44545
• Citation: 197 Kan. 517,419 P.2d 912
• Parties: Naomi M. BROWN, Substituted as Successor In Interest to Lloyd L. Brown, Deceased, Appellant, v. Creighton A. HARDIN, M.D., Appellee.
• Court: Kansas Supreme Court

Page 912

419 P.2d 912

197 Kan. 517

Naomi M. BROWN, Substituted as Successor In Interest to Lloyd L. Brown, Deceased, Appellant, v. Creighton A. HARDIN, M.D., Appellee.

No. 44545.

Supreme Court of Kansas.

Nov. 5, 1966.

Syllabus by the Court

1. One seeking reversal of a judgment because of erroneous exclusion of evidence has the burden of demonstrating prejudice as well as error in the ruling complained of.

2. Requests for relief based on insufficiency of evidence offered by a plaintiff are to be dealt with according to their true nature rather than in accordance with descriptive labels attached to them.

2. A request for relief made after plaintiff has completed the presentation of his evidence, based on insufficiency of evidence is the equivalent of a motion for involuntary dismissal (K.S.A. 60-241(b)) on the ground that upon the facts and the law the plaintiff has shown no right to relief.

4. Complaints in a malpractice action that the trial court erred in (1) the exclusion of evidence, (2) its refusal to submit plaintiff's cause of action for jury determination upon one alleged ground of negligence because of insufficiency of evidence, and (3) its refusal to grant a new trial because of misconduct of counsel in jury argument and misconduct of jurors during deliberations, examined and held, prejudicial error requiring reversal of the final judgment is not shown in the record.

W. C. Jones, Olathe, argued the cause, and Howard E. Payne, Robert P. Anderson, Keith Martin and H. Thomas Payne, Olathe Clay C. Rogers, Lyman Field, and Reed O. Gentry, Kansas City, Mo., were with him on the brief, for appellant.

John J. Alder, Kansas City, argued the cause, and Harley V. Haskin, Olathe, was with him on the brief, for appellee.

HARMAN, Commissioner:

This is an action to recover damages for personal injury for malpractice wherein the jury verdict was for defendant-appellee. Following the filing of the appeal in this court the plaintiff-appellant died and his widow has now been substituted as his successor in interest herein. For convenience the parties will be referred to as they appeared in the court below.

Briefly stated, the plaintiff's petiton alleged that while hospitalized he underwent surgery on his abdominal aorta performed by defendant surgeon on March 8, 1961; that thereafter he developed a gangrenous condition in his lower extremities with the result that on March 21, 1961, it became necessary for defendant to remove both of plaintiff's legs above the knees. Plaintiff alleged that the loss of his legs was occasioned by the negligence of defendant in two respects: (1) That defendant failed to inform him of the possible consequences and hazards of the initial operation and therefore did not obtain plaintiff's informed consent thereto; and (2) that defendant negligently rendered postoperative care following the first operation. Defendant's answer took issue with both allegations of negligence. Claims of error will be discussed in chronological sequence.

Plaintiff claims that the court erred in excluding the testimony of Doctor David Schalker, offered by plaintiff in the form of a deposition taken by defendant. Additional pertinent facts here are: On June 24, 1964, the trial court held the first of three pretrial conferences; at this time the court directed that there be an exchange of names of witnesses at a further pretrial conference to be held November 6, 1964, and set the case for trial on December 7, 1964. On November 5, 1964, pursuant to agreement of the parties, a second pretrial conference was held. Specific inquiry was made by defendant as to the names of any medical witnesses to be called by plaintiff in response to which plaintiff's counsel stated that at that time plaintiff did not have any medical witnesses. The two attorneys for plaintiff who were then present at the pretrial stated that a third attorney for plaintiff had departed that day for California to attend the taking by defendant of the deposition of Doctor David Schalker. Due to the absence of this attorney the court gave plaintiff additional time to furnish defendant's counsel the name of any medical witness to be used by plaintiff. The court fixed a deadline of November 16, 1964, for plaintiff to advise defendant in writing the name of any medical witness to be used by plaintiff and stated that upon failure to do so within that time any such witness would not be permitted to testify. Trial date was set for December 8, 1964. On November 6, 1964, (the day following the second pretrial conference) the deposition of Doctor Schalker was taken by defendant, one of plaintiff's attorneys being present. On November 16, 1964, one of the attorneys for plaintiff who had attended the November 5th conference advised the court and defendant's counsel in writing as follows:

'I am authorized to advise you that counsel for the plaintiff will not use as a witness or witnesses any medical testimony from any doctor or doctors.'

A third pretrial conference was held November 24, 1964, at which the attorney for plaintiff who had attended the taking of the Schalker deposition stated that plaintiff desired to offer the deposition in evidence.

Defendant objected to this request which objection was sustained, the court stating its November 5th ruling would be adhered to. Trial was had as scheduled, commencing December 8, 1964. At the trial as a part of his case in chief plaintiff offered the Schalker deposition in evidence. (It appears the deposition was on file in the office of the clerk of the trial court prior to trial). Defendant's counsel again objected on the ground that the witness was not listed as required by the pretrial order and that it had been stated in writing ten days after the deposition was taken that no medical witness would be used. Defendant's objection was sustained and the deposition was excluded.

Plaintiff contends the court erred in excluding the deposition. He argues the pretrial order in question served no purpose other than to prevent surprise and that there could be no surprise to defendant because he had taken the deposition, and that the pretrial order should have been modified to prevent manifest injustice.

The pretrial conference provided for by K.S.A. 60-216 has become an important part of our procedural process designed, among other things, to acquaint each party in advance of trial with the respective factual contentions of the parties upon matters in dispute, thus reducing the opportunity for maneuver and surprise at the trial, and enabling all parties to prepare in advance for trial. At pretrial conference the court may make any determination that will aid in the fair, orderly and efficient disposition of the action. (See Connell v. State Highway Commission, 192 Kan. 371, 388 P.2d 637.) The matters specifically mentioned in the pretrial statute are not exclusive. Many courts have come to require advance identification of witnesses to be called at trial, which practice serves a useful purpose and is a proper judicial exercise. Orders entered at pretrial conference have the full force of other orders of court and they control the subsequent course of the action, unless modified at the trial to prevent manifest injustice (K.S.A. 60-216). This latter proviso reposes in the trial court a large discretion and it is the exercise of this discretion plaintiff claims has been abused to his prejudice. Our difficulty in determining this question here as requested by plaintiff lies in the meager record before us. Neither the deposition nor a summary of it is contained in the record on appeal. All we know about the deposition is what was stated in general terms at the November 24th pretrial, it appearing that Doctor Schalker had been a medical student at the hospital at the time plaintiff was there and had some knowledge of his condiction. We think the showing made is insufficient for us to determine prejudice in the exclusionary ruling, assuming arguendo, that it may have been erroneous. This court has always been committed to the rule that one seeking reversal of a judgment because of erroneous exclusion of evidence has the burden of demonstrating prejudice has the burden of the ruling complained of. (Hatcher's Kansas Digest, rev. ed., Appeal and Error, §§ 408, 509; West's Kansas Digest, Appeal and Error, k901, 1026, 1032(1)(2)). Hence the ruling complained of will not be treated as prejudicial to plaintiff.

We turn to the next claimed error. At the trial at the conclusion of plaintiff's evidence the defendant made two motions: A general motion for directed verdict in his favor based, inter alia, on insufficiency of evidence as to each ground of negligence and a motion requesting the court to strike from plaintiff's petition every allegation of negligent aftercare on the part of the defendant; in addition defendant 'demurred' to plaintiff's evidence based upon insufficient of evidence as to each ground of negligence. The trial...