Jacks v. Cloughley

• Decision Date: 17 July 1969
• Docket Number: No. 45342,45342
• Citation: 203 Kan. 699,457 P.2d 175
• Parties: Leonard L. JACKS, Appellee, v. Roy CLOUGHLEY, Charles Glenn, Don Dowdall and Paul Hancock, Appellants, and Hayden Wylie, Defendant.
• Court: Kansas Supreme Court

Page 175

457 P.2d 175

203 Kan. 699

Leonard L. JACKS, Appellee, v. Roy CLOUGHLEY, Charles Glenn, Don Dowdall and Paul Hancock, Appellants and Hayden Wylie, Defendant.

No. 45342.

Supreme Court of Kansas.

July 17, 1969.

Syllabus by the Court

1. It is proper for a party to introduce rebuttal testimony where the rebutting evidence is that which is given to explain, repel, counteract, or disprove testimony or facts introduced by or on behalf of the adverse party. Such evidence includes not merely evidence which contradicts the witnesses on the opposite side and corroborates those of the party who began, but also, evidence in denial of any affirmative fact which the answering party has endeavored to prove.

2. Where a pretrial conference is conducted but the record does not disclose that a pretrial order was ever made by the trial court, objection to the introduction of exhibits at the trial of the case on the ground such exhibits were not presented at the pretrial conference is unavailing, absent a pretrial order concerning the introduction of such exhibits in evidence.

3. Where the trial court at the request of the jury, in the presence of the parties and their counsel, requires the official court reporter to read the testimony of a witness, limited to the subject matter indicated by the jury, an objection cannot be sustained on the ground that all the testimony of the witness was not read, in the absence of the jury's request to have the entire testimony of such witness read. (K.S.A. 60-248(e).)

Charles W. Thompson, Kansas City, for appellants.

John Fields, Kansas City, for appellee, and David W. Carson, John K. Dear, Ernest N. Yarnevich, John William Mahoney and Joseph T. Carey, Kansas City, on the brief.

SCHROEDER, Justice.

This is an action for assault and battery brought by the plaintiff against the defendants, members of the Wyandotte township volunteer fire department, seeking actual damages in the amount of $100,000 and punitive damages in the amount of $100,000 as the result of an alleged assault occurring while the defendants were putting out a fire on the plaintiff's property.

The case was tried to a jury which returned a verdict against four of the named defendants (appellants), assessing damages against each of them in the sum of $2,500 actual damages and $2,500 punitive damages. Appeal has been duly perfected.

The appellants specify trial errors primarily pertaining to the admission of evidence.

The evidence in this case was conflicting, but since the jury found in favor of the plaintiff, we shall state the facts in the light most favorable to the plaintiff.

Leonard Jacks (plaintiff-appellee) at the time of the incident in question weighed 160 pounds and stood about 5 feet 8 inches tall. On the 7th day of April, 1963, the was severely beaten by Roy Cloughley, Charles Glenn, Don Dowdall and Paul Hancock (defendants-appellants). All of the defendants including Hayden Wylie, were volunteer members of the Wyandotte township fire department.

Approximately one week prior to April 7, 1963, the Wyandotte township fire department had been called to put out a fire that had originated from a trash burner in a nearby residential area. The fire had spread across the appellee's property onto another neighbor's land, that of Robert Carr. A few days thereafter the appellee went to the fire station and explained to Mr. Cloughley that he was cleaning his field and would appreciate it if the fire department would not interfere with his burning of the trash. The appellee testified: 'They told me that it would be, 'no problem'.'

Shortly after the first fire and sometime prior to April 7, 1963, the perimeter of the appellee's property in question had been plowed.

On the morning of April 7, the appellee had set fire to brush piles on his property. Shortly thereafter Mrs. Robert Carr called the Wyandotte township fire department to the scene. The appellee was some distance from the point where the fire truck pulled onto his property and commenced putting out the fire. At that time the appellee was talking to a neighbor, Floyd McCord, at the fence line. Upon seeing the firemen engage in putting out the fire, the appellee with a pitchfork in hand headed for the fire truck, but before reaching thr truck he threw the pitchfork to the ground. When the appellee reached the truck he saw Mr. Cloughley was the driver and he said: 'Roy, I don't want this fire put out; I thought I had that explained to you, that I would like to clean up this field.' According to the appellee Cloughley said: 'I will come in your field, and do any damned thing I want to, and time I want to.'

According to the appellee Cloughley was standing and sitting at the same time, holding the door of the truck open, when he kicked at the appellee who in turn reached up and grabbed Cloughley by the shirt, which was torn. Cloughley came out of the truck onto Jacks where an affray ensued on the ground, joined in by the other appellants.

In an effort to defend himself the appellee got ahold of a fire extinguisher on the truck which he endeavored to use. In the affray the appellee was kicked about the body and head, strangled, and his body used as a battering ram, running his head into the side of the fire truck four times.

The appellee's brother, Ed Jacks, then arrived at the scene and assisted the appellee to the hospital.

Dr. Jack Cooper, who specialized in the field of neurosurgery, testified he saw the appellee at Providence Hospital on April 7; that the appellee had clotted blood in his hair, both eyes were swollen and contused, grossly; the left side of his face was swollen and bruised; there were multiple small abrasions where the skin had been brushed away; there were no large lacerations or tissue breaks that would require sutures, but there was clotted blood about both ears and in particular the right ear; the patient was unable to get out of bed due to severe pain in the chest; he was short of breath and coughed readily and easily with a great deal of pain; there was considerable abdominal tenderness and there were marks on his body that presented a configuration of heel marks. X-rays revealed a fracture of the tenth rib, and three doctors, each in a particular field of specialty, consulted with each other in working on the appellee as a patient.

The appellee was released from the hospital on the 21st day of April, 1963, and Dr. Cooper saw him on three occasions thereafter, the last being July 12, 1963. During the subsequent visits the appellee was extremely nervous, complained of headaches and pain in his back. He also complained of pain down the right leg and over the sciatic nerve to a point below the knee. He complained of dizziness, and the doctor noticed he had some flattening of the normal lumbar curve. On July 12, 1963, he continued to limp and he experienced pain in his leg.

The appellee's employer testified when the appellee went back to work on September 9, 1963, the appellee was not nearly the man he used to be prior to the occurrence.

One of the appellants, Charles Glenn, engaged in the affray, was a constable for Wyandotte township, and a leather blackjack or slap stick was noticed in his right hand immediately after the affray had stopped.

During the affray the fire on the appellee's property and burned itself out.

The jury found in favor of one defendant, Hayden Wylie, and against the other defendants, Cloughley, Glenn, Dowdall and Hancock, as heretofore stated.

No question is raised in this case concerning the right of members of a fire department to enter upon private property in the discharge of their duties to put out fire. By statute actual members of a township fire department are vested with police power to prohibit persons from interfering with firemen in the discharge of their duties. (K.S.A. 80-1907; and see K.S.A. 80-1519.) For general authority on the subject see 65 C.J.S. Negligence § 63(110), p. 861.

The record does not indicate that the firemen in question were exercising a right on their part to arrest; however, it is indicated by the instructions, concerning which no complaint is made, they were defending the assault and battery charge on the ground they were acting in self defense or in the defense of another.

Our review on appeal will be confined to the points raised by the appellants and argued in their brief.

The appellants contend the trial court erred in permitting the appellee to call a rebuttal witness, over the appellants' objection, and offer testimony that should have been introduced in the appellee's case in chief.

Edward Jacks, a brother of the appellee, was permitted by the trial court to testify in rebuttal concerning the condition of the appellee at the time he first saw him. He testified about the 'blood and dirt' all over his brother, and that he brushed two fellows in the circle surrounding his brother aside and went in, put his arms around him and took him out. He said he did not stay and talk to any of the appellants at the scene.

The appellants made a point in examining their witnesses that Edward Jacks, when he arrived at the scene, carried on a conversation with several of the appellants, and that the appellee left the scene of the affray under his own power.

After the appellants' evidence was in, it appeared that a conflict existed in the evidence as to whether the appellee was in sufficient condition to leave the scene under his own power. Another brother of the appellee, Horace Jacks, testified on direct examination that Edward was holding the appellee up when he, Horace, went to the field where the affray occurred.

Edward Jacks had not previously been called as a witness by the appellee in the trial of the case; therefore, counsel for the appellee called Edward Jacks as a rebuttal witness.

The appellants argue the so-called rebuttal witness did not testify concerning any matters to rebut the appellants' evidence; but that the appellee was allowed to...