Burberry v. Bridges

• Citation: 427 S.W.2d 583
• Parties: Walter Franklin BURBERRY, Appellant, v. Walter Calvin BRIDGES and Ethel Bridges, Appellees.
• Decision Date: 03 May 1968
• Court: United States State Supreme Court — District of Kentucky

Page 583

427 S.W.2d 583

Walter Franklin BURBERRY, Appellant, v. Walter Calvin BRIDGES and Ethel Bridges, Appellees.

Court of Appeals of Kentucky.

May 3, 1968.

Elwood Rosenbaum, Rosenbaum & Sullivan, Lexington, for appellant.

Charles Landrum, Jr., Denney, Landrum, White & Patterson, Lexington, for appellees.

EDWARD P. HILL, Judge.

This is an appeal from a judgment entered upon the verdict of a jury finding both appellant and appellees guilty of negligence and refusing to find damages for either of them. Appellant filed the complaint asking for damages for personal injuries. Appellees counterclaimed for property damages.

The accident occurred Sunday morning, October 24, 1965, on Southview Drive in Lexington, Kentucky. Appellee Walter Calvin Bridges was traveling south in his automobile. Appellant Burberry was riding a motorcycle in a northerly direction. Bridges desired to make a left turn off Southview Drive to the Jones' residence. Bridges was being closely followed by another automobile, so he, Bridges, pulled over in the middle of the street (there was no marked center line) to give the car following him room to pass his car to its right. Seeing another car coming north, Bridges stopped with his wheels cut to the left preparatory to making a left turn into the Jones' driveway. Burberry was following the car going north. It is not clear whether Bridges started his car and turned to his left after the northbound car cleared the road or whether Bridges remained in the stopped position he occupied while the northbound car was passing. In any event, Burberry ran into the center of the front part of Bridges' automobile, and he was thrown off his motorcycle and out into space for some distance resulting in serious injuries to Burberry.

Although appellant's argument is presented under eight separate headings in his 'Table of Contents and Authorities,' his argument is not subdivided. The gist of appellant's argument, however, is that appellee Walter Calvin Bridges was guilty of negligence as a matter of law and that there was no negligence shown on the part of appellant.

Appellees first contend that the appeal must be dismissed because appellant's brief does not conform to RCA 1.210, which prescribes the contents of a brief. When compared with RCA 1.210, it is obvious that appellant's brief does not comply. Instead of following the format laid out by the rule, appellant has labeled the sections of his brief: 'Statement of Facts,' 'Issues,' 'Arguments,' and 'Conclusion.' Furthermore, his 'Argument' section is not properly subdivided.

RCA 1.260 sets out penalties for failure to comply with Rule 1.200, which include a provision that 'the brief or briefs of the offending party may be stricken.' (Emphasis added.) This rule leaves the penalty to the discretion of the court, which may or may not decide to strike appellant's brief. Appellant's brief includes all the elements essential to a brief although they are misnamed and not in their proper order. Appellees' motion to strike appellant's brief is overruled.

Appellees argue that the appeal should be dismissed because appellant 'having designated only a part of the evidence, the presumption is that the omitted evidence sustains the finding of the court and jury on the issues presented.' Wells v. Wells, Ky., 406 S.W.2d 157 (1966); Hamblin v. Johnson, Ky., 254 S.W.2d 76 (1952). Apparently the only time this presumption does not arise is when the omitted portions of the record were not considered by the trial court or did not influence its decision. Cadden v. Commonwealth, Ky., 242 S.W.2d 409 (1951). When the presumption is present, this court can do no more than determine whether the pleadings support the judgment. Willis v. Davis, Ky., 323 S.W.2d 847 (1959); Meglemry v. Bruner, Ky., 344 S.W.2d 808 (1961). It is also reasonable to place upon appellant the duty to designate and file a record sufficient to enable the court to pass on the alleged errors. Federal courts have so held in interpreting Rule 75(a). T.V.T. Corporation v. Basiliko, 103 U.S.App.D.C. 181, 257 F.2d 185 (1958); Moore, Moore's Federal Practice, Vol. 7, pp. 3638 and 3644--45. (This was prior to the 1966 amendment to Federal Rule 75, but that amendment changed the rule to conform with actual practice. It did not change the substance of the rule.)

If appellees' argument is adopted, any appellant who argues a directed verdict issue must always designate all of the evidence, unless he can show that the omitted portion was not considered by the trial judge in his decision on the issue. Otherwise, appellant risks losing because of the presumption against him rather than any failure to present a good argument on the part of the record which is designated. This may be a reasonable rule to adopt because ...