Brown v. Keill
| Decision Date | 06 June 1978 |
| Docket Number | No. 48686,48686 |
| Citation | 580 P.2d 867,224 Kan. 195 |
| Parties | Britt BROWN, Appellant, v. Patricia L. KEILL, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In the absence of evidence of a joint venture, agency or circumstances giving rise to vicarious liability the negligence of a bailee of a vehicle is not imputable to the bailor in an action by the bailor against a third party for damage to the bailed vehicle.
2. The fundamental rule of statutory construction, to which all others are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statute, even though words, phrases or clauses at some place in the statute must be omitted or inserted.
3. In determining legislative intent, courts are not limited to a mere consideration of the language used, but look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished and the effect the statute may have under the various constructions suggested.
4. In order to ascertain the legislative intent, courts are not permitted to consider only a certain isolated part or parts of an act but are required to consider and construe together all parts thereof in pari materia. When the interpretation of some one section of an act according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the literal import of words or phrases which conflict with the manifest purpose of the legislature.
5. Under the provisions of K.S.A. 60-258a the concept of joint and several liability between joint tort-feasors previously existing in this state no longer applies in comparative negligence actions. The individual liability of each defendant for payment of damages will be based on proportionate fault, and contribution among joint judgment debtors is no longer required in such cases.
6. The intent and purpose of the legislature in adopting K.S.A. 60-258a was to impose individual liability for damages based on the proportionate fault of all parties to the occurrence which gave rise to the injuries and damages even though one or more parties cannot be joined formally as a litigant or be held legally responsible for his or her proportionate fault.
Donald W. Vasos, Kansas City, argued the cause, and George D. McCarthy, Wichita, was on the brief for appellant.
Otto J. Koerner and Randall Elam, of Koerner & Elam, Wichita, argued the cause and were on the brief for appellee.
Edward M. Boyle, Olathe, was on the brief for the Kansas Association of Defense Counsel, Amicus Curiae.
Donald W. Vasos, Kansas City, and Jerry R. Palmer, Topeka, were on the briefs for the Kansas Trial Lawyers Association, Amicus Curiae.
This appeal is from a judgment for damage to plaintiff's automobile resulting from a two car collision. The primary issues raised on appeal require a construction of the provisions of K.S.A. 60-258a, commonly referred to as the Kansas comparative negligence statute.
The plaintiff-appellant, Britt Brown, owned a Jaguar roadster. His son, Britt M. Brown, was the permissive driver of appellant's Jaguar at the time of the collision. For clarity we will refer to Britt Brown as the father and to Britt M. Brown as the son. The defendant-appellee, Patricia L. Keill, was the driver of the other car involved in the collision. The collision occurred at a street intersection in Wichita. The reasonable cost of repair to the Jaguar amounted to $5,423.00. The circumstances surrounding the collision need not be detailed. Apparently the defendant-appellee settled her claim against the driver of the Jaguar out of court. The owner of the Jaguar then sued to recover his property loss. Defendant-appellee did not seek to have the son joined as an additional formal party to the action. She did not file a counterclaim or cross-claim.
In answer to the father's claim the defendant admitted driving one of the cars involved in the collision but alleged that 90% of the causal negligence was attributable to the driver of the Jaguar and only 10% of the casual negligence was attributable to her. Defendant further alleged that since the causal negligence of the driver of the Jaguar exceeded 50% and defendant's causal negligence was less than the driver of the Jaguar that plaintiff should not be permitted to recover under the comparative negligence laws of this state.
At the close of a bench trial the court found: (1) The plaintiff-father, as bailor of the Jaguar, was guilty of no negligence; (2) the driver of the Jaguar was responsible for 90% of the causal negligence; (3) the defendant, Keill, was responsible for 10% of the causal negligence; (4) plaintiff sustained total damages in the amount of $5,423.00; and (5) pursuant to the comparative negligence statute of Kansas plaintiff was entitled to recover $542.30 or 10% of his total damage from the defendant, Keill. Judgment was entered for that amount and this appeal followed.
At the outset it should be noted that in the absence of evidence of a joint venture, agency or circumstances giving rise to vicarious liability the negligence of a bailee of a vehicle is not imputable to the bailor in an action by the bailor against a third party for damage to the bailed vehicle. See Hartley v. Fisher, 1 Kan.App.2d 362, 566 P.2d 18 (1977), and authorities cited therein. The parties concede this is the law. The plaintiff in this case accordingly was guilty of no contributory negligence.
Although stated by the appellant in a somewhat different fashion the two ultimate questions to be decided on appeal are: (1) Has the rule of joint and several liability of joint tort-feasors been retained in actions now governed by the Kansas comparative negligence statute, K.S.A. 60-258a; and (2) is the causal negligence or fault of all parties to a collision or occurrence giving rise to plaintiff's claim in a comparative negligence action to be considered even though one of said parties is not served with process or joined as a formal party to the action?
We will consider first the question as to joint and several liability.
K.S.A. 60-258a has two purposes expressed in the title of the act as passed by the legislature. The first purpose is the abolition of contributory negligence as a bar to recovery. The second purpose is to provide for the awarding of damages on the basis of comparative negligence. (Laws of Kansas, 1974, Ch. 239, infra.)
Before considering the statute it might be well to review some of our rules relating to the liability of joint tort-feasors under our prior case law. In Alseike v. Miller, 196 Kan. 547, 412 P.2d 1007 (1966), it is stated that Kansas adheres to the common law rule that there is no right of contribution between joint tort-feasors. Where no right of contribution exists as between joint tort-feasors, a defendant has no right under the provisions of K.S.A. 60-214(a ) to bring in to plaintiff's cause of action a joint tort-feasor who was not originally made a party to the action by the plaintiff.
However, K.S.A. 60-2413(b ) provides:
"A right of contribution or indemnity among judgment debtors, arising out of the payment of the judgment by one or more of them, may be enforced by execution against the property of the judgment debtor from whom contribution or indemnity is sought." (Emphasis supplied.)
In McKinney, Administrator v. Miller, 204 Kan. 436, 464 P.2d 276 (1970), it was held, when a joint judgment is entered in an action founded upon tort, contribution between the joint judgment debtors is authorized by K.S.A. 60-2413(b ). In McKinney, Administrator v. Miller, supra, this court cited the case of Fort Scott v. Railroad Co., 66 Kan. 610, 72 P. 238 (1903), with approval. In Fort Scott an action was brought by one joint judgment debtor against the other joint judgment debtor. The judgment had been entered in a prior tort action brought against the two joint tort-feasors. The plaintiff in the Fort Scott action had previously paid the entire joint judgment entered against the tort-feasors. A judgment for one-half the amount paid was recovered from the other joint judgment debtor.
Therefore, under the Kansas law as it existed prior to statutory comparative negligence a plaintiff could choose his tort-feasor and a defendant had no right to bring in another joint tort-feasor to plaintiff's action. However, if plaintiff sued and recovered a judgment against two tort-feasors plaintiff could proceed to collect the judgment from either judgment debtor. When one judgment debtor had satisfied the entire judgment he could then recover one-half of the amount paid from the other judgment debtor. The effect of these prior holdings was to make each defendant jointly and severally liable for all of plaintiff's damage regardless of whether others contributed to cause such injuries. The right of contribution between judgment debtors in such case was on a fifty-fifty basis. Plaintiff controlled his own lawsuit and could collect a judgment from any judgment debtor he chose. The inability of any judgment debtor to pay his half of the judgment would concern only the judgment debtor who satisfied the judgment and then sought contribution.
Although the rule is so well known it hardly needs repeating, it might be well to note that under our prior law the contributory negligence of a plaintiff with few exceptions was a complete bar to plaintiff's recovery when pleaded and proved by the defendant. (Stephens v. McGuire, 184 Kan. 46, 334 P.2d 363 (1959).)
In 1974 the Kansas legislature passed House Bill No. 1784, Laws of Kansas 1974, Ch. 239, pp. 828-829 (now K.S.A. 60-258a), which reads as follows:
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