Gullett v. McCormick

Decision Date24 November 1967
Citation421 S.W.2d 352
PartiesWalter GULLETT, Appellant, v. James McCORMICK, Appellee.
CourtUnited States State Supreme Court — District of Kentucky

Eldon L. Webb, John W. McKenzie, Ashland, for appellant.

P. H. Vincent, Ashland, for appellee.

SCOTT REED, Special Commissioner.

In this personal injury action the trial court granted a summary judgment in favor of the defendant, and the plaintiff appeals.

Plaintiff was injured while riding on a truck driven by the defendant who was engaged in hauling baled hay from a field to a barn. Plaintiff and defendant were neighbors, and plaintiff was apparently requested by defendant to assist him in loading and transporting the hay.

On the day in question defendant, plaintiff, and some boys loaded the truck with the bales of hay on two occasions, and on each occasion plaintiff rode in the back of the truck on top of the hay. These trips were successfully negotiated without incident.

On the third load, according to plaintiff, he and the others stacked more bales of hay on the back of the truck, at the direction of the defendant, than they had previously stacked; and plaintiff, an adult, and some of the boys who were engaged in the work rode on top of the bales of hay as they had done on previous occasions. The bales were not tied.

Plaintiff's son, together with the son of the defendant, rode in the cab of the truck with the defendant. The truck, after being loaded for the third time, was driven from the field toward a paved road. Just before the front of the truck reached the paved road, the loaded hay on which plaintiff was riding fell from the truck carrying the plaintiff with it, and the plaintiff sustained personal injuries as a result of the fall.

The trial court ordered that the case be set for pretrial conference and directed that the parties have present at the pretrial conference the principal witness that each would rely on as to liability. It also directed that some person with authority to settle the case be present if settlement could be reached.

The record shows that at this pretrial conference plaintiff and defendant testified, and their testimony was transcribed. This testimony is the source of the statement of facts recited herein up to this point.

At the conclusion of the pretrial conference, the court directed the parties to file briefs on the issue of liability. The defendant instead of filing such brief moved for summary judgment. Plaintiff, in response to this motion, filed the affidavit of his son who was riding in the cab of the truck at the time of the accident. This affidavit recites that on the occasion of the accident, the defendant slowed the truck to cross a drain in the field and the truck engine quit; that the witness and the defendant worked on the truck a few minutes and got it started; that defendant then drove the truck from the field toward the blacktop road and just before the front end of the truck reached the blacktop road, the truck engine 'started choking down or dying and Mr. McCormick clutched the truck and accelerated the engine causing the truck to jerk or lurch foreward (sic); that when this happened Mr. McCormick said 'I'll bet I threw that load off,' which he had; Mr. McCormick drove the truck all the way on the blacktop road before he stopped.'

The trial court entered an order reciting that in its opinion it was probably negligence to haul hay on a truck without tying the hay, and that it was likewise negligence for the plaintiff to ride on top of a truckload of hay knowing the same was not tied. The trial court further recited that if the defendant was guilty of negligence, it was equally clear that plaintiff was guilty of contributory negligence; this order further recited that in the opinion of the trial court, the action of the defendant in clutching the truck and accelerating the engine caused a slight jerk or speed up of the truck but was a usual and proper method of driving a truck and did not constitute negligence on the part of the defendant. The trial court concluded that a directed verdict in favor of the defendant was inevitable on a trial of the action.

There appears to be complaint raised in plaintiff's brief on this appeal concerning the procedure adopted by the trial court at the pretrail conference. The record shows that plaintiff made no objection to this procedure consisting of requiring the parties to produce witnesses to testify and requiring the presence of persons authorized to discuss settlement of the case. In view of the failure of plaintiff to object, we are not authorized to consider any error in this respect as reversible. Little v. Whitehouse, Ky., 384 S.W.2d 503, and Loew, Adm'x of Cundiff, deceased, v. Allen, Adm'r of Allen, deceased, Ky., 419 S.W.2d 734 (decided October 6, 1967).

If we were authorized to consider the matter, while we cannot say it would be prejudicial in all instances, we feel compelled to say that in many given instances, such procedure at a pretrial conference might well constitute reversible error.

The function of a pretrial conference under CR 16 is not to compel litigants to try their cases any more than it is the function of a motion for summary juddment under CR 56 to compel such trial.

The pretrial conference is a useful procedural device important in many cases to accomplish the refinement of issues, the elimination of nonessential proof, and to expedite the actual trial of the action.

The problem of the extent to which a trial court in conducting a pretrial conference may encourage settlement of an action is a delicate one which has been the subject of much discussion, many articles, and divergent views.

In view of the fact that we are not authorized in the instant case to consider the alleged error as a cause for reversal, it should suffice here to say that generally we do not approve the attendance of witnesses and the taking of testimony at a pretrial conference, nor do we believe that the pretrial conference should be used as a device to compel settlement of actions or give overemphasis to the matter of...

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19 cases
  • Steelvest, Inc. v. Scansteel Service Center, Inc.
    • United States
    • United States State Supreme Court — District of Kentucky
    • April 11, 1991
    ...presenting at least some affirmative evidence showing that there is a genuine issue of material fact for trial. See, Gullett v. McCormick, Ky., 421 S.W.2d 352 (1967); Continental Cas. Company v. Belknap Hardware & Manufacturing Co., Ky., 281 S.W.2d 914 CHOICE OF SUMMARY JUDGMENT STANDARD He......
  • Gailor v. Alsabi
    • United States
    • United States State Supreme Court — District of Kentucky
    • February 18, 1999
    ...summary judgment, it was the obligation of Appellee to present some evidence to support his theory of estoppel. CR 56.03, Gullett v. McCormick, Ky., 421 S.W.2d 352, 355 (1967); cf. Hubble v. Johnson, Ky., 841 S.W.2d 169 (1992). We cannot assume in the absence of evidence that Peggy Smith kn......
  • Patton v. Aubrey, No. 2006-CA-001452-MR (Ky. App. 6/27/2008)
    • United States
    • Kentucky Court of Appeals
    • June 27, 2008
    ...affirmative evidence showing that there is a genuine issue of material fact for trial." Steelvest, id. at 482 (citing Gullett v. McCormick, 421 S.W.2d 352 (Ky. 1967)). See also Continental Cas. Co. v. Belknap Hardware & Mfg. Co., 281 S.W.2d 914 (Ky. 1955). Summary judgment is deemed appropr......
  • Shah v. American Synthetic Rubber Corp.
    • United States
    • United States State Supreme Court — District of Kentucky
    • August 31, 1983
    ...must be resolved against the movant. Tillery v. Louisville & N.R. Company, Ky., 433 S.W.2d 623, 624 (1968), citing Gullett v. McCormick, Ky., 421 S.W.2d 352 (1967). These questions should not have been decided in the middle of discovery and prior to trial on the The trial court should have ......
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