Green v. Kaesler-Allen Lumber Co.

• Decision Date: 10 December 1966
• Docket Number: No. 44592,KAESLER-ALLEN,44592
• Citation: 420 P.2d 1019,197 Kan. 788
• Parties: Lucille M. GREEN, Appellant, v.LUMBER COMPANY, Inc., a Corporation, Appellee.
• Court: Kansas Supreme Court

Page 1019

420 P.2d 1019

197 Kan. 788

Lucille M. GREEN, Appellant, v. KAESLER-ALLEN LUMBER COMPANY, Inc., a Corporation, Appellee.

No. 44592.

Supreme Court of Kansas.

Dec. 10, 1966.

Syllabus by the Court

1. A trial court has inherent power to summarily dispose of litigation on its own motion where there remains no genuine issue as to any material fact, and giving the benefit of all reasonable inferences that may be drawn from the evidence judgment must be for one of the parties as a matter of law.

2. Summary disposition of an action may logically follow a pretrial conference when the proper pretrial procedures disclose the lack of a disputed issue of material fact and the facts so established indicate an unequivocal right to a judgment in favor of a party.

3. A mere surmise or belief on the part of the trial court, no matter how reasonably entertained, that a party cannot prevail upon a trial will not justify a summary judgment where there remains a dispute as to a material fact which is not clearly shown to be sham, frivolous or so unsubstantial that it would obviously be futile to try it.

4. Photographs should not be accepted as absolute and positive evidence in a negligence case without an opportunity for the opposing party to inquire as to whether they represent with fair accuracy the place of the happening and the physical condition surrounding it at the time of the injury.

5. The trial court, in considering a summary judgment, should not accept as positive and absolute that which an attorney states he can prove by witnesses when the factual issue is in dispute.

6. Although at a pretrial conference an attorney owes a duty to the court and opposing counsel to make a full and fair disclosure as to what the specific issues at the trial will be, the trial court should not attempt to determine a disputed question of fact by pressing counsel for evidentiary statements.

Gerald L. Michaud, Wichita, argued the cause, and Russell Cranmer, Orval L. Fisher, M. William Syrios and Kenneth L. ingham, Wichita, were with him on the briefs, for appellant.

H. E. Jones, Wichita, argued the cause, and A. W. Hershberger, Richard Jones, Wm. P. Thompson, Jerome, E. Jones, Robert J. Roth, William R. Smith and Robert J. O'Connor, Wichita, were with him on the briefs, for appellee.

HATCHER, Commissioner.

This is an appeal from a judgment entered summarily on the trial court's own motion during a pretrial conference.

The plaintiff filed her petition which, omitting formal parts, stated:

'On the 19th day of August, 1964, plaintiff was a customer in the defendant's store and had purchased a gallon of paint. That while leaving said store and coming down the outside, step, plaintiff was caused to fall because of the negligence of the defendant.

'The fall and resulting injuries and damages to this plaintiff as hereinafter set forth were proximately caused by the negligence of the defendant in that said outside step and landing area were defective, dangerous, unsafe and in disrepair and defendant knew, or by the exercise of ordinary care, should have known said condition of the step and landing area.

'As a result of the fall, the plaintiff sustained severe and permanent injuries and damages. Plaintiff was made sick, sore, lame and disabled and received injuries to her left ankle, back and other parts of her body and was otherwise injured.'

The answer consisted of a general denial and the further allegation that if plaintiff suffered injuries they were the direct result of her own negligent acts.

At the pretrial conference the trial court considered the statement of plaintiff's counsel, plaintiff's discovery deposition and various photographs of the scene of the accident which were offered by both parties. It then concluded:

'After having considered the pleadings and the deposition and the statement of counsel and the photographs, the Court finds that summary judgment for the defendant should be sustained on the ground that reasonable minds could not differ on whether the threshold was improperly or negligently maintained.'

The plaintiff has appealed.

The appellant contends that the trial court erred in entering summary judgment at the pretrial conference without the filing of a motion for summary judgment and without previous notice.

The appellant calls our attention to K.S.A. 60-256 which provides for summary judgments on motion by a party filed at least ten days before the time fixed for hearing. It must be conceded that neither the summary judgment statute nor any other procedural statute gives the trial court specific authority to enter a summary judgment on its own motion. The authority is derived from the inherent power of the trial court to summarily dispose of litigation when there remains no genuine issue as to any material fact and giving the benefit of all reasonable inferences that may be drawn from the evidence the judgment must be for one of the parties as a matter of law. It may be said that before a court may enter a judgment summarily the same conditions must exist as would justify a summary judgment on motion of a party.

Summary disposition of an action may logically follow a pretrial conference when proper pretrial procedures disclose the lack of a disputed issue of material fact and the facts so established indicate an unequivocal right to a judgment in favor of a party.

The Kansas summary judgment and pretrial statutes were taken from the federal rules. The federal courts, in applying the rules, have clearly established that where no disputed fact survives a pretrial conference judgment may be summarily issued.

In Lynch v. Call, 10 Cir., 261 F.2d 130, 132, it is stated:

'The salutary, indeed the desirable and efficacious, purpose of a pre-trial conference is to sift the discovered and dicoverable facts to determine the triable issues, both factual and legal, and to chart the course of the lawsuit accordingly. If, as is often the case, no disputed facts survive the pre-trial discovery and conferences, a summary judgment is timely and appropriate. Holcomb v. Aetna Life Ins. Co., 10 Cir., 255 F.2d 577. * * *' (See, also, Wirtz v. Young Electric Sign Company, 10 Cir., 315 F.2d 326.)

The appellant further contends that the trial court erred in summarily granting judgment for defendant at the pretrial conference because there was substantial competent evidence to be submitted to the jury on genuine issues of disputed fact.

We are forced to agree with with appellant's contention.

This court has now laid down a definite yardstick for the granting of such judgments. Generally it must appear conclusively that there remains no genuine issue as to a material...