Doty v. Wells, 55111

• Decision Date: 19 April 1984
• Docket Number: No. 55111,55111
• Citation: 9 Kan.App.2d 378,682 P.2d 672
• Parties: Dorothy DOTY, Appellee, v. Rene WELLS, Appellant.
• Court: Kansas Court of Appeals

Page 672

682 P.2d 672

9 Kan.App.2d 378

Dorothy DOTY, Appellee, v. Rene WELLS, Appellant.

No. 55111.

Court of Appeals of Kansas.

April 19, 1984.

Review Denied June 25, 1984.

Syllabus by the Court

1. In a personal injury case where report of a statement by the plaintiff to a treating physician appears in the physician's office records and a hospital's records, principles and rules governing admissibility of the plaintiff's statement under exceptions to the hearsay rule are discussed and applied.

2. Unless otherwise provided by statute, all evidence having any tendency in reason to prove a material fact is admissible subject to discretionary refusal by the trial judge for enumerated permissible reasons.

3. Violation of Rule 168, 232 Kan. cliv, by permitting additional closing argument by plaintiff's counsel after defendant waives argument is reversible error.

Joseph R. Ebbert of Turner & Boisseau, Chartered, Great Bend, for appellant.

John L. Hampton of Hampton & Hampton, Chtd., Great Bend, for appellee.

Before FOTH, C.J., and REES and PARKS, JJ.

REES, Judge:

This is an action for personal injury resulting from a rear-end automobile accident. A jury found plaintiff sustained total damages of $28,000 and attributed causal fault 90% to defendant and 10% to plaintiff. Plaintiff was awarded a judgment of $25,200. Defendant appeals.

Defendant proffered into evidence the entry in a treating physician's office record reciting a pre-accident complaint of "Headache--Terrible--Bad--Age??" and a contemporaneous entry by the same treating physician in a hospital record reciting "Patient has terrible headaches which she blames upon her age." Plaintiff objected on the ground the evidence was hearsay. The trial judge denied its admission on the ground it was irrelevant. The obvious purpose of defendant's proffer was to lessen the extent and amount of recoverable damages sought by plaintiff.

On the record before us, it is without question that there was sufficient foundation for the admission of the office record and hospital record entries under the business records exception to the hearsay rule (K.S.A. 60-460 [m ]. That foundation was either stipulated and agreed to by the parties or determined at pretrial. But, admissibility of the record entries as business records only goes to proof that plaintiff, a declarant, made the nontestimonial statement recited in the records.

In a double hearsay situation such as this, there arises a second question, that is, whether the declarant's nontestimonial statement, proved by evidence admitted under the business records exception, is itself admissible hearsay to prove the truth of the matter therein stated which, here, is that plaintiff suffered from headaches prior to the accident. We find and hold plaintiff's statement was admissible under either K.S.A. 60-460(a ) (declarant present at the hearing and available for cross-examination) or K.S.A. 60-460(l )(2) (declarant's statement of previous symptoms, pain, or physical sensation, made to a physician consulted for treatment). The result is that plaintiff relied upon a nonmeritorious ground when making objection to the admission of the evidence. Our holding is consistent with State v. Davis, 2 Kan.App.2d 698, 698-701, 587 P.2d 3 (1978), rev. denied 225 Kan. 846 (1979), where consideration of admissibility of an included statement under K.S.A. 60-460(l ) was expressly excluded. See also, for example, Mesecher v. Cropp, 213 Kan. 695, 701-702, 518 P.2d 504 (1974); Letcher v. Derricott, 191 Kan. 596, 604, 383 P.2d 533 (1963); Kreh v. Trinkle, 185 Kan. 329, 343, 343 P.2d 213 (1959).

Be that as it may, other contentions call for discussion. The first concerns the trial judge's refusal of the evidence on the ground it was irrelevant.

Encompassing both relevance and materiality is our codified relevant evidence rule that, unless otherwise provided by statute, all evidence having any tendency in reason to prove a material fact is admissible. K.S.A. 60-407(c ); K.S.A. 60-401(b ). Taken at face value, this rule rendered the proffered evidence admissible. Nonetheless, a trial judge has discretion to exclude otherwise relevant evidence when it is cumulative (Lindquist v. Ayerst Laboratories, Inc., 227 Kan. 308, 313-314, 607 P.2d 1339 [1980], repetitious proof of the same point (State v. Boyd, 216 Kan. 373, 378, 532 P.2d 1064 [1975], tangential, collateral to a fact in issue, or its probative value is insignificant (State v. Alderdice, 221 Kan. 684, 689, 561 P.2d 845 [1977], its probative value is outweighed by the danger of unduly emphasizing some phase of the lawsuit with possible resultant prejudice (Talley v. J & L Oil Co., 224 Kan. 214, 220, 579 P.2d 706 [1978], its admission risks unfair and harmful surprise (K.S.A. 60-445), it may unfairly prejudice a jury, or its probative value is outweighed by its prejudicial effect (Van Hoozer v. Farmers Insurance Exchange, 219 Kan. 595, 613, 549 P.2d 1354 [1976]. No doubt other statements of permissible bases for discretionary refusal of relevant evidence are to be found.

Cervical sprain is the physical injury essentially claimed by plaintiff to have resulted from the accident. The excluded statement was made five years prior to the accident underlying this litigation and as a part of diagnostic procedures preceding a hysterectomy. Plaintiff admitted she did not enjoy perfect health prior to the accident. This appeal follows a retrial after a mistrial order apparently was granted because of misconduct of one or both counsel. The second trial was permeated with the admission of and thorough use on cross-examination of depositions and prior trial testimony. The record plainly reflects vigorous preparation and trial conduct on the part of counsel for both parties. In the context of this case, we are unable to conclude the trial judge abused his discretion in rejecting the proffered evidence as irrelevant (insignificant probative value) and we are convinced the rejection was not reversible error.

Defendant contends certain rebuttal evidence was erroneously admitted. In his brief he argues that in allowing the challenged rebuttal evidence, the trial judge unfairly prejudiced defendant because the evidence was the last put on before deliberation. Defendant says the evidence should have been introduced in plaintiff's case-in-chief since it could have been introduced then. We know of no such rule and defendant refers us to no supporting authority. In regard to rebuttal evidence, see State v. Weigel, 228 Kan. 194, 200, 612 P.2d 636 (1980); State v. Phipps, 224 Kan. 158, 161, 578 P.2d 709 (1978); Service v. Pyramid Life Ins. Co., 201 Kan. 196, 220, 440 P.2d 944 (1968).

The final issue raised concerns final argument and Rule 168, 232 Kan. cliv. Upon conclusion of the opening portion of plaintiff's closing argument, defense counsel waived argument. Over defendant's objection, plaintiff was permitted to make additional closing argument.

Rule 168, 232 Kan. cliv, "Closing Arguments to Jury," contains provisions regarding the division of plaintiff's aggregate time allotted for closing argument and limitation upon the content of the final portion of plaintiff's closing argument. It also provides that "[i]f, after plaintiff has made an argument, defendant waives argument, then no further argument shall be permitted."

The trial transcript wholly fails to disclose that defense counsel cited and referred the trial judge to Rule 168. It shows his objection that "when I waive, he is through." Plain and explicit citation of Rule 168 to the trial judge by defense counsel first appears in the text of defendant's motion for a new trial.

After submission of the case to the jury...