Lawrence v. Deemy

• Decision Date: 06 December 1969
• Docket Number: No. 45489,45489
• Citation: 461 P.2d 770,204 Kan. 299
• Parties: Robert H. LAWRENCE, Appellant, v. Richard S. DEEMY, Appellee.
• Court: Kansas Supreme Court

Page 770

461 P.2d 770

204 Kan. 299

Robert H. LAWRENCE, Appellant, v. Richard S. DEEMY, Appellee.

No. 45489.

Supreme Court of Kansas.

Dec. 6, 1969.

Syllabus by the Court

1. The rules governing the propriety of summary judgments (K.S.A. 60-256) are stated and applied.

2. Summary judgment should not be entered if there remain genuine issues of material facts, nor where the opposing party is proceeding with due diligence with his pretrial discovery but has not had an opportunity to complete it.

3. The fact that a person is confronted with a sudden emergency not caused by his own tortious conduct which requires rapid decision is merely a factor in determining the reasonable character of his choice of action and whether his conduct constituted negligence.

4. A person cannot invoke the doctrine of sudden emergency if he brought the emergency upon himself by his own fault or did not use ordinary care to avoid it.

5. The record is examined in an action to recover damages arising out of an automobile collision, and it is held, the record before the district court disclosed genuine issues of material facts, and defendant's motion for summary judgment was erroneously sustained.

Jerry K. Levy, Wichita, argued the cause and was on the brief for appellant.

Howard W. Harper, Junction City, argued the cause and was on the brief for appellee.

O'CONNOR, Justice.

This is an action for personal injuries arising out of an automobile collision that occurred December 7, 1965, approximately three miles south of Herington on U. S. Highway 77. The defendant filed a motion for summary judgment, claiming the undisputed facts established he acted in a sudden emergency and, therefore, was not negligent as a matter of law. The district court sustained the motion, and plaintiff has duly perfected his appeal.

Plaintiff urges the trial court erred in granting summary judgment because (1) pretrial discovery had not been completed, and (2) there were genuine issues of material facts which remained unresolved.

The events concerning the accident are gathered from the pleadings and depositions which were before the trial court when it made its ruling.

About 3 p. m. on the day in question the plaintiff, Robert H. Lawrence, was northbound on U. S. 77, driving his 1965 Cadillac from Wichita to junction City, his place of residence. At the same time the defendant, Richard Deemy, an eighteen-year-old youth, was southbound on the same highway, driving his 1954 Ford from his home in Wilsey to Wichita, where he attended school. Richard's mother was a passenger in the front seat with him. Lawrence was traveling at a speed of about forty miles per hour; Richard at approximately sixty. The two vehicles approached an area on the highway described as 'sort of a valley between two hills.' As Lawrence 'topped' the hill he saw a man afoot in the southbound (Richard's) lane of traffic. The man was picking up items later determined to have blown from the top of an automobile belonging to a Lt. Kruse, who with his family had passed southward through the area shortly before. Lawrence saw the on-coming Deemy car, and recognizing the danger the man was in, slowed his vehicle and started honking his horn to get the man's attention, but the man continued to pick up the items and ignored Lawrence.

When Richard's automobile came up over 'the rise in the road' from the north, Mrs. Deemy also saw the man in the middle of the road, walking from the east to the west side of the highway, and shouted to her son to miss him. Richard applied his brakes, swerved to the left across the center line and into the northbound traffic lane in order to go between the man and a station wagon parked on the east side of the highway. Richard missed the man and the station wagon but sideswiped the Lawrence vehicle in the northbound lane of traffic.

Meanwhile, upon noticing his belongings had blown off the top of his car, Lt. Kruse returned to the location where the accident occurred. He saw the Lawrence and Deemy cars and the man standing in the southbound lane picking up something from the road which he put in the back of the parked station wagon. The man got into the station wagon and left prior to the arrival of a state highway patrolman. With the help of Lt. Kruse, who had had experience in accident investigation as a military policeman, the state patrolman proceeded to make an investigation and subsequently prepared a diagram of the accident scene. The diagram revealed that the Deemy vehicle left 179 feet of skid marks.

When this action was commenced in June 1966, defendant was served with summons at the home of his parents, where he was visiting while on leave from the military service. Subsequently he was sent to Vietnam. Upon defendant's application a stay order of further proceedings was granted pursuant to the Soldiers' and Sailors' Civil Relief Act of 1940 (50 U.S.C.A.App. § 501 et seq.); however, the order provided that either plaintiff or defendant could take such depositions as they desired, pending the dissolution of the stay order. Thereafter, depositions were taken of the plaintiff, defendant's mother, and Lt. Kruse and his wife.

Although defendant had neither answered nor been deposed, his attorney filed a motion for summary judgment on January 3, 1968. When the motion was argued plaintiff vigorously objected to the hearing of the motion because he had been unable to take the deposition of the defendant. The court, nevertheless, proceeded with the hearing, took the matter under advisement, and on April 1, 1969, sustained defendant's motion for summary judgment.

Before we consider the merits of the appeal a brief review of our law relating to summary judgments is in order.

Generally before a summary judgment may be granted, the record before the court must show conclusively that there remains no genuine issue as to a material fact, and that the moving party is entitled to judgment as a matter of law. A mere surmise or belief on the part of the trial court, no matter how reasonable, that a party cannot prevail upon a trial will not warrant a summary judgment if there remains a dispute as to a material fact which is not clearly shown to be sham, frivolous, or so unsubstantial that it would be futile to try the case. (Knowles v. Klase, 204 Kan. -, 460 P.2d 444; Green v. Kaesler-Allen Lumber Co., 197 Kan. 788, 420 P.2d 1019.) The manifest purpose of a summary judgment is to obviate delay where there is no real issue of fact. A court should never attempt to determine the factual issues on a motion for summary judgment, but should search the record for the purpose of determining whether factual issues do exist. If there is a reasonable doubt as to their existence, a motion for summary judgment will not lie. (Secrist v. Turley, 196 Kan. 572, 412 P.2d 976.) A court, in making its determination, must give to the party against whom summary judgment is sought the benefit of all inferences that may be drawn from the facts under consideration. (Shehi v. Southwest Rentals, Inc., 199 Kan. 265, 428 P.2d 838; Jarnagin v. Ditus, 198 Kan. 413, 424 P.2d 265; Brick v. City of Wichita, 195 Kan. 206, 403 P.2d 964.)

Regardless of how refined or sophisticated we attempt to state the summary judgment rule, we always return to the language of the statute itself (...