Herrell v. Maddux
| Decision Date | 10 May 1975 |
| Docket Number | No. 47681,47681 |
| Citation | 535 P.2d 935,217 Kan. 192 |
| Parties | Ralph Thomas HERRELL, by Ralph Herrell, his Father, Natural Guardian and Next Friend, Appellant, v. Mitzi Carol MADDUX, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. A pretrial order made pursuant to K.S.A. 60-216 supersedes the pleadings and controls the subsequent course of an action unless modified by the court to prevent manifest injustice.
2. It is generally accepted that a pretrial order which specifies the issues to be tried, supersedes and replaces the pleadings.
3. The discretion given the court to permit modification of a pretrial order is in the interest of preventing manifest injustice.
4. The record is examined in an action wherein the trial court sustained a motion to amend the pretrial order after all parties had rested, and for reasons appearing in the opinion it is held the court erred.
J. Stephen Nyswonger of Braun & Nyswonger, Garden City, argued the cause, and Lelyn J. Braun, Garden City, was with him on the brief for appellant.
Edwin P. Carpenter, Topeka, argued the cause, and H. Lee Turner and Raymond L. Dahlberg of Turner, Chartered, Great Bend, were with him on brief for appellee.
The accident which sired this lawsuit occurred at the intersection of Fulton and Third Streets in Garden City, Kansas, about 11 p. m., August 8, 1972. The plaintiff, Ralph Thomas Herrell, 18 years of age, was riding his Yamaha motorcycle west on Fulton. The 17-year old defendant, Mitzi Carol Maddux, was driving a Chevrolet automobile east on Fulton. As the defendant was making a left turn at the intersection, the two vehicles collided, and plaintiff's left leg was severely injured.
In answer to special questions submitted, the jury found both drivers guilty of negligence 'in failing to keep a proper lookout.' The trial court approved the special verdict and entered judgment in favor of the defendant. The plaintiff has appealed.
The principal point on appeal concerns the trial court's ruling permitting the defendant to amend her answer after both sides had rested. It happened like this: In their respective pleadings, plaintiff and defendant accused each other of negligent acts which proximately caused the accident. After a pretrial conference was held, the court entered a pretrial order stating the contentions of each party. The order stated that the plaintiff contended the collision was proximately caused by defendant's negligence in (1) making a lefthand turn directly in front of him, (2) failing to keep a proper lookout and (3) failing to keep her vehicle under proper control, while the defendant, on the other hand, contended the collision was proximately caused by negligence on the plaintiff's part in driving at a high and dangerous rate of speed and a speed so high he could not keep his motorcycle under proper control. The pretrial order concluded with the following paragraph:
'This pretrial order shall supersede all pleadings and shall control the subsequent course of this action and shall not be modified except by the order of the Court on its own motion or on motion by a party to prevent manifest injustice.'
After all the evidence had been introduced and both parties had rested, each moved for a directed verdict. Both motions were overruled. The record then reflects that 'in informally considering the instructions' the defendant 'discovered that the pretrial order does not contain an allegation of contributory negligence with regard to the failure (of plaintiff) to keep a proper lookout.' Defense counsel requested the pretrial order be amended to include that as 'one of the grounds of negligence for (the) defense.'
To this request the plaintiff strongly objected, but to no avail. The judge observed that in the interest of fairness he would have to permit the amendment which would cause a change in instruction No. 2. In this posture the case went to the jury and, as we have heretofore said, the jury found both litigants guilty of failing to keep a proper lookout.
K.S.A. 60-216 relates to pretrial procedure. It provides in effect that the pretrial order shall control the subsequent course of the litigation unless the same is modified by court order to prevent manifest injustice. Speaking on the force of a pretrial order this court, in Evangelist v. Bellern Research Corporation, 199 Kan. 638, 641, 433 P.2d 380, spoke as follows:
'The purpose and effect of a pretrial order is clearly defined by the statutory and decisional law of this state. As stated in Brown v. Hardin, 197 Kan. 517, 419 P.2d 912:
(p. 519, 419 P.2d p. 915.)' (199 Kan. p. 641, 433 P.2d p. 383.)
See, also Freeto Construction Co. v. American Hoist & Derrick Co., 203 Kan. 741, 745, 746, 457 P.2d 1 and Apperson v. Security State Bank, 215 Kan. 724, 528 P.2d 1211.
In Thompson v. Aetna Life Ins. Co., 201 Kan 296, 300, 440 P.2d 548, 552, we said that under K.S.A. 60-216 the pretrial order entered by the court in that case 'in effect, may be said to have superseded and replaced the pleadings.' It is generally accepted that a pretrial order which specifies the issues to be tried supersedes the pleadings in such respect. (In re Estate of Wurtz, 214 Kan. 434, 520 P.2d 1308.)
A few cases have come our way relating to the amendment of pretrial orders. In Tillotson v. Abbott, 205 Kan. 706, 472 P.2d 240, we upheld the trial court in refusing to allow defendant to amend the pretrial order, at the commencement of trial, by adding an additional ground of defense. We said the trial court has discretion to allow or refuse modification of the pretrial order and its ruling should be upheld absent an abuse of discretion. Similarly, in Trimble, Administrator v. Coleman Co., Inc., 200 Kan. 350, 358, 437 P.2d 219, we sustained the trial court in overruling plaintiff's motion to amend his pleadings, during trial, to include res ipsa loquitur, a doctrine not enumerated in either the petition or the pretrial order. On the other hand, in Commercial Credit Corporation v. Harris, 212 Kan. 310, 312, 510 P.2d 1322, we upheld a ruling made by the court permitting defendant to amend her answer under K.S.A. 60-215(b) four days before trial, by raising an affirmative defense.
However, we have had...
To continue reading
Request your trial
-
Dold v. Sherow
...the court and they control the subsequent course of the action, unless modified at trial to prevent manifest injustice. (Herrell v. Maddux, 217 Kan. 192, 535 P.2d 935; Beard v. Montgomery Ward & Co., 215 Kan. 343, 524 P.2d 1159; Apperson v. Security State Bank, 215 Kan. 724, 528 P.2d 1211; ......
-
Boyle v. Harries
...to a pretrial order. See Brown v. United Methodist Homes for the Aged, 249 Kan. 124, Syl. p 4, 815 P.2d 72 (1991); Herrell v. Maddux, 217 Kan. 192, 194, 535 P.2d 935 (1975); Robertson v. Ludwig, 12 Kan.App.2d 571, 582, 752 P.2d 690, rev'd on other grounds 244 Kan. 16, 765 P.2d 1124 then [22......
-
Steckline Commc'ns, Inc. v. Journal Broad. Grp. of Kan., Inc.
...the pleadings ." (Emphasis added.) Oller v. Kincheloe's, Inc. , 235 Kan. 440, 448, 681 P.2d 630 (1984) (citing Herrell v. Maddux , 217 Kan. 192, 535 P.2d 935 [1975] ); see Unruh v. Purina Mills , 289 Kan. 1185, 1191, 221 P.3d 1130 (2009) ("The pretrial order supersedes any pleadings and has......
-
Norton Farms, Inc. v. Anadarko Petroleum Corp.
...to prepare for trial with the assurance that contentions, issues, and evidence will not be moving targets. See Herrell v. Maddux, 217 Kan. 192, 194-95, 535 P.2d 935 (1975); Tillotson v. Abbott, 205 Kan. 706, 709, 472 P.2d 240 (1970); Trimble, Administrator v. Coleman Co., Inc., 200 Kan. 350......