Frevele v. McAloon

• Decision Date: 14 May 1977
• Docket Number: No. 48194,48194
• Citation: 564 P.2d 508,222 Kan. 295
• Parties: Thomas Orrin FREVELE, Appellee, v. Bernard McALOON and Lawrence Diebolt, d/b/a Diebolt Lumber and Supply, Appellants.
• Court: Kansas Supreme Court

Page 508

564 P.2d 508

222 Kan. 295

Thomas Orrin FREVELE, Appellee, v. Bernard McALOON and Lawrence Diebolt, d/b/a Diebolt Lumber and Supply, Appellants.

No. 48194.

Supreme Court of Kansas.

May 14, 1977.

Syllabus by the Court

1. A pretrial order, entered by the trial court pursuant to K.S.A. 60-216, controls the subsequent course of an action unless such order is modified at the trial to prevent manifest injustice. This proviso reposes in the trial court large discretionary powers.

2. In a petition to recover damages for personal injuries an allegation that plaintiff was prevented from transacting his business as a result of such injuries is sufficiently broad to permit the introduction of evidence as to loss of wages or income.

3. It is incumbent upon the appellant to include in the record on appeal any matter upon which he intends to base a claim of error.

4. The inadvertent mention of insurance during a trial which is not the result of intentional misconduct of counsel does not constitute prejudicial error.

5. In ruling on a motion for directed verdict pursuant to K.S.A. 60-250, the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and where the evidence is such that reasonable minds could reach different conclusions thereon, the motion must be denied and the matter submitted to the jury. The same basic rule governs appellate review of a motion for a directed verdict. (Following, Simpson v. Davis, 219 Kan. 584, Syl. 3, 549 P.2d 950.)

6. Mere knowledge of the danger of doing a certain act without a full appreciation of the risk involved is not sufficient to preclude a plaintiff from recovery, even though there may be added to the knowledge of danger a comprehension of some risk.

7. The question whether a plaintiff is guilty of contributory negligence must be submitted to a jury, if the facts of record are such that reasonable minds, in the exercise of fair and impartial judgment, might reach different conclusions thereon.

8. In an action for personal injuries, the record is examined and it is held: (1) There was sufficient competent evidence to support the verdict and (2) prejudicial error is not shown on any of the matters raised.

Charles F. Forsyth, Erie, argued the cause, and Clark M. Fleming and Richard G. Tucker, Erie, were with him on the brief for appellants.

John W. White, Humboldt, argued the cause and was on the brief for appellee.

KAUL, Justice.

This is a negligence action brought to recover damages for personal injuries wherein the jury returned a verdict for plaintiff-appellee, Thomas Orrin Frevele. The injuries complained of were incurred during the unloading of building materials from a truck driven by defendant-appellant Bernard McAloon, who was employed by defendant-appellant Lawrence Diebolt, d/b/a Diebolt Lumber and Supply.

Plaintiff was a building contractor who, with a three-man crew, was engaged in the remodeling of a house in Humboldt. On November 14, 1972, defendant McAloon delivered building materials consisting of sheets of particle board, sheet rock, plywood paneling and wall board, all of which were in 4 by 8 foot sheets. Several rolls of insulation were also included in the load. On arrival at the construction site McAloon, who had made prior deliveries, backed his truck up to the front porch of the house, which was being remodeled. Plaintiff and his employees first unloaded the several rolls of insulation and carried them into the house. According to plaintiff's testimony, while the insulation was being unloaded, defendant McAloon was untying the ropes which had secured the sheet rock, plywood and particle board to the truck bed.

The ensuing events were testified to by plaintiff and his employees. After the rolls of insulation were unloaded, McAloon engaged the hoist of the truck bed to raise the front of the bed in order to facilitate the unloading of the rest of the material. Plaintiff testified that as the truck bed was raised the particle board started to slide off and that he shouted to McAloon to lower the truck bed and stop. There was also testimony by James Weeks, an employee of plaintiff, that McAloon had been warned not to raise the bed very high. Plaintiff got behind the truck bed and attempted to stop the particle board from sliding, but was unable to hold it. When plaintiff learned that he would not be able to hold the particle board the attempted to enter the door of the house to avoid being pinned by the sliding board. However, his right foot was pinned to the wall of the house. His foot was severely bruised and the skin lacerated. Plaintiff was unable to work until January 3, 1973. He worked part time for about a month when, although using a cane and still suffering discomfort, he returned to full time work. He was released by his doctor on April, 4, 1973, and had fully recovered prior to trial. Medical bills were stipulated to by the parties.

Defendants denied any negligence on their part and further asserted the defense of contributory negligence. Both of defendants' theories of defense were submitted to the jury by the trial court in instruction No. 13.

At the close of plaintiff's evidence defendants moved for a directed verdict on the ground that plaintiff's admitted actions in stepping into the path of the sliding particle board was contributory negligence which barred his recovery as a matter of law. Defendants renewed their motion at the close of all of the evidence. In both instances defendants' motion was overruled. The case was submitted to the jury which found for plaintiff and assessed his damages at $5,585.20.

Defendants' first point on appeal is directed at alleged violations of the pretrial order. They first argue the court erred in permitting witnesses, other than those named by plaintiff in the pretrial order, to testify. When plaintiff called his employee, James Weeks, defendants objected on the ground mentioned. The paragraph of the pretrial order pertaining to witnesses reads as follows:

'The parties agree that the exhibits and witnesses will be submitted to each other on or before March 15, 1975, and all discovery completed by trial time, with plaintiff's witnesses at this time being listed as the plaintiff and Dr. Long of Humboldt, and defendants' witnesses being listed as all of the plaintiff's witnesses, all witnesses to the accident, and the defendants.'

The witnesses in question were named by plaintiff in his answers to defendants' interrogatories Nos. 6 and 12 which were served on March 7, 1975, as follows:

'6. Who were the witnesses to the accident so far as you know and what are their addresses?

'Answer: Melvin G. Baker, Larry Brock and James Weeks all of Humboldt, Kansas.

'12. What are the names and addresses of all witnesses you intend to use to prove the allegations of your petition?

'Answer: The witnesses named herein, including Dr. Edward E. Long and Plaintiff's wife, Dorothy W. Frevele.'

The record clearly discloses that defendants were informed of all of the witnesses to be used by plaintiff well within the time limitation of March 15, 1975, prescribed by the pretrial order. We fail to see how defendants were prejudiced under such circumstances. While a pretrial order, under K.S.A. 60-216, controls the subsequent course of the action, the order is subject to the proviso 'unless modified at the trial to prevent manifest injustice.' We have held the proviso reposes large discretionary power in the trial court. (Bartlett v. Heersche, 204 Kan. 392, 462 P.2d 763 Syl. 8.)

Defendant's next argument on this point is that plaintiff's evidence pertaining to loss of income or earnings, which were apparently included in the jury's award for damages, was not within the formulation of issues set out in the pretrial order. Defendants point out there was no modification of the pretrial order in this regard and further argue that plaintiff 'should have pled the exact amount of lost wages, earnings or income if he was claiming any.' In his petition, plaintiff's allegations pertaining to damages read:

'. . . (A)nd as a result thereof was prevented from transacting his business, suffered great pain of body and mind and incurred expenses for medical attention and hospitalization all to the damage of the Plaintiff in the total sum of Eight Thousand Five Hundred Dollars ($8,500.00).'

It appears to be defendants' contention that the allegations do not meet the requirements of K.S.A. 60-209(g) which reads in pertinent part:

'When items of special damage are claimed, there nature shall be specifically stated. . . .'

The subsection in question is the same as the corresponding Federal Rule (Federal Rules of Civil Procedure, Rule 9(g)). In 5 Wright and Miller, Federal Practice and Procedure, Civil, Sec. 1311, concerning the rule, the authors comment 'When special damages are sought in addition to the general damages that the law allows, the specific allegation requirement can be satisfied easily. . . .' (p. 448.)

We believe the allegation that plaintiff was prevented from transacting his business is broad enough to include loss of income.

Plaintiff points out that the language used in his allegation of damages is drafted from the language appearing in Form No. 14 of the Appendix of Forms following K.S.A. 60-269, p. 94, and that the Forms set out therein are declared to be sufficient in K.S.A. 60-268. We find no merit in defendants' contention in this regard.

Defendants next complain of instruction No. 14 concerning loss of income and the age of plaintiff. In the instruction the trial court erroneously stated plaintiff's age to be fifty-seven, when it was admittedly sixty at the time of trial, which was some two and one-half years after the injury. Defendants attempt to give significance to the misstatement of age in connection with permanent injuries. When the matter was called to the trial court's attention at the...