Herbel v. Endres

• Decision Date: 08 March 1969
• Docket Number: No. 45272,45272
• Citation: 202 Kan. 733,451 P.2d 184
• Parties: Norman Dean HERBEL, Appellee, v. David E. ENDRES, Appellant.
• Court: Kansas Supreme Court

Page 184

451 P.2d 184

202 Kan. 733

Norman Dean HERBEL, Appellee, v. David E. ENDRES, Appellant.

No. 45272.

Supreme Court of Kansas.

March 8, 1969.

Syllabus by the Court

1. Although an order granting a new trial is normally not appealable as a final order, an exception to this rule exists where the order is challenged on jurisdictional grounds.

2. The grounds on which a new trial may be granted to all or any of the parties to an action are specifically set out in K.S.A. 60-259(a), and such statutory grounds are exclusive.

3. In ordering a new trial on its own initiative the trial court is not only limited to those grounds for which it might have ordered a new trial on the motion of a party, but it must also state its reason for its action specifically, not in the general language of the statute. (Following Landscape Development Co. v. Kansas City P. & L. Co., 197 Kan. 126, 415 P.2d 398.)

Lelus B. Brown, Newton, argued the cause, and William L. Brown, Newton, was with him on the brief for appellant.

Vernon A. Stroberg, Newton, argued the cause, and Kenneth G. Speir, Herbert H. Sizemore and Richard F. Hrdlicka, Newton, were with him on the brief for appellee.

SCHROEDER, Justice.

This is a damage action brought by the plaintiff to recover for personal injuries and damages to his motorcycle resulting from an intersection collision between the plaintiff's cycle and the defendant's auto. The case was tried to a jury and resulted in a verdict for the defendant upon which judgment was entered by the trial court. Thereafter the trial court granted the plaintiff's motion for a new trial, and the defendant has duly prefected an appeal to this court.

The underlying question is whether this court has jurisdiction of the appeal.

Briefly stated, the facts are that Norman Dean Herbel (plaintiff-appellee) was riding a motorcycle in a northerly direction on U.S. Highway No. 81 south of Newton, Kansas, approaching the intersection of Southeast 14th Street. David E. Endres (defendant-appellant) was approaching the intersection in question from the west and had stopped at the stop sign, after looking to the south, but did not see the plaintiff. He then proceeded to cross the intersection and struck the plaintiff who was riding the motorcycle.

The plaintiff testified that as he approached the intersection of Southeast 14th Street he saw the defendant headed in an easterly direction stopped at the stop sign on the west. He then felt it was no longer necessary to observe the defendant and proceeded into the intersection.

The case was tried to a jury on the usual issues of negligence and contributory negligence. From a review of the record presented on appeal it may be said the defendant was guilty of negligence in proceeding into the intersection as he did, but the question of the plaintiff's contributory negligence and whether it was a proximate cause of the collision was properly a matter to be determined by the jury.

At the close of all the evidence the plaintiff's motion for a directed verdict as to liability was overruled, and on presenting the case to the jury the court, among the twenty-two instructions submitted, correctly instructed the jury on the issue of the plaintiff's contributory negligence.

No special questions were submitted to the jury, and it promptly returned a general verdict for the defendant. The court thereupon approved the verdict and rendered judgment in favor of the defendant.

Within the time allotted by K.S.A. 60-259(b) the plaintiff filed a motion for a new trial on three grounds which were stated as follows:

'(1) The verdict is contrary to the law and the evidence, in that there was no evidence that plaintiff was guilty of any negligence. That defendant's own testimony absolved plaintiff of any negligence, in that the evidence of defendant was that had he looked, which he was obligated to do, after he left the stop sign he would and could have seen the plaintiff and he, the defendant, could have stopped and avoided the plaintiff-this he failed to do; and that failure was the immediate proximate cause of the injury to the plaintiff.

'(2) The Court erred in refusing plaintiff's motion to direct a verdict in favor of the plaintiff on the issue of liability at the close of all the evidence, leaving only the question as to damages to the jury.

'(3) The Court erred in giving any instructions as to alleged contributory negligence, for the reasons set forth in paragraphs 1 and 2 above.'

The motion was argued on the 1st day of June, 1967, at which time the court took the matter under advisement until the 5th day of June, 1967, when it announced the decision granting a new trial in open court.

In making its decision the trial court cited cases decided prior to the enactment of the new code of civil procedure. It relied heavily upon Lord v. Hercules Powder Co., 161 Kan. 268, 167 P.2d 299; and Bishop v. Huffman, 175 Kan. 270, 262 P.2d 948, quoting portions of these opinions. It relied upon these cases for the proposition that unless the court can give a verdict its independent approval it has not only the right, but the duty, to set it aside and grant a new trial.

In announcing its decision the trial court said:

'* * * I have made a review of the evidence. I have weighed the testimony on the question of the plaintiff, Mr. Herbel's contributory negligence, and I have considered the discretionary powers vested in the trial court and I have come up with the following result, and again this is case law that if a trial court is dissatisfied with the verdict, it not only has the authority but it is its duty to set such verdict aside. In the event this matter should be appealed to the Supreme Court, and so the record is clear at this point, the Court is sustaining the motion for a new trial.' (Emphasis added.)

The trial court made further statements concerning its dissatisfaction with the verdict and concluded:

'Again, it is the ruling of the Court that the motion by Norman Dean Herbel for a new trial is hereby granted on the basis the Court is dissatisfied with the verdict.'

Nowhere did the trial court in announcing its decision on the motion for a new trial express an opinion that it erred in failing to direct a verdict for the plaintiff on the issue of liability, or that it erred in submitting the question of the plaintiff's contributory negligence to the jury and instructing the jury thereon.

We must therefore conclude the trial court did not grant the motion for a new trial upon any of the grounds stated in the plaintiff's motion for a new trial, but for a reason of its own-that it was dissatisfied with the verdict. But this is not one of the grounds upon which a new trial can be granted under K.S.A. 60-259.

Our decision herein is controlled by Landscape Development Co. v. Kansas City Power & Light Co., 197 Kan. 126, 415 P.2d 398....