Lemons v. St. John's Hospital of Salina, 50767
| Decision Date | 11 July 1980 |
| Docket Number | No. 50767,50767 |
| Citation | 5 Kan.App.2d 161,613 P.2d 957 |
| Parties | Hattie LEMONS, Administrator of the Estate of W. H. Lemons, Deceased, Appellant, v. ST. JOHN'S HOSPITAL OF SALINA, Kansas; James E. Roderick and Rex S. Romeiser, Appellees. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. One who claims abuse of discretion has the burden of proving that contention.
2. In order to hold that a trial court has abused its discretion, an appellate court must determine that no reasonable person could take the view adopted by the trial court. If reasonable people could differ as to the propriety of the trial court's action, then it cannot be said the trial court abused its discretion.
3. In the absence of an objection, a trial judge's failure to make an explicit finding in the record that a good faith controversy exists among multiple plaintiffs or defendants prior to his granting additional peremptory challenges does not amount to reversible error when it is obvious from the record that such a finding is implicit in the award of additional peremptory challenges.
4. It is not an abuse of discretion to permit a defendant to cross-examine his codefendant in a personal injury or death action insofar as such cross-examination pertains to matters brought out on direct examination.
5. The discretion of the trial court in allowing or disallowing leading questions to be propounded to a witness will not be disturbed on appeal unless such discretion is manifestly abused.
6. The time allowed to attorneys for argument of a case to the jury is ordinarily a matter resting on the sound discretion of the trial court, and error can be based thereon only by a showing of abuse of such discretion.
7. The distribution of time for closing argument in cases involving numerous parties on either side is a matter within the discretion of the trial court, and the mere fact that more time is allowed to one party than to another does not of itself constitute an abuse of discretion that justifies reversal of the judgment.
8. An appellate court must disregard technical errors and irregularities in the proceedings of the trial court, and it may not reverse a judgment unless the error prejudices the substantial rights of a party.
9. In the appeal of a medical malpractice action, the record is examined and it is held : The trial court did not err (1) in allowing three peremptory challenges to the hospital and three to the doctors; (2) in permitting the hospital's attorney to cross-examine two witnesses for the doctors; (3) in refusing to allow plaintiff to further cross-examine these two defense witnesses; (4) in allotting more cumulative time to defendants for closing argument than to plaintiff; (5) in refusing to admonish the jury.
Gene E. Schroer, of Jones, Schroer, Rice, Bryan & Lykins, Chartered, Topeka, for appellant.
Clarence King, of King, Stokes, Knudson & Nitz, Chartered, Salina, for appellee St. John's Hospital.
Charles D. Green, of Arthur, Green, Arthur & Conderman, Manhattan, for appellees James E. Roderick and Rex S. Romeiser.
Before FOTH, C. J., and ABBOTT and SPENCER, JJ.
Plaintiff appeals from a judgment for the defendants in a medical malpractice case based on jury findings that the defendants, St. John's Hospital of Salina Kansas, James E. Roderick and Rex S. Romeiser were not negligent.
Plaintiff raises five issues on appeal. The first four issues involve alleged abuse of discretion in rulings by the trial court. Plaintiff complains that the rulings were erroneously made on the premise that a good faith controversy existed between the defendant doctors and the defendant hospital.
One who claims abuse of discretion has the burden of proving that contention. McColm v. Stegman, 3 Kan.App.2d 416, 596 P.2d 167 (1979). In order to hold that the trial court abused its discretion, an appellate court must determine that no reasonable person could take the view adopted by the trial court. In re Pennington, 224 Kan. 573, 577, 581 P.2d 812 (1978). If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973).
We now consider plaintiff's allegations of abuse of discretion.
I. PEREMPTORY CHALLENGES
The trial court allowed three peremptory challenges to plaintiff, three to defendant hospital, and three jointly to defendant doctors, Roderick and Romeiser. K.S.A. 60-247(c ) provides in pertinent part:
We view plaintiff's argument as a two-part argument. First, it is argued that before a trial court may allow additional peremptory challenges to any party or parties, the trial judge must make a specific finding on the record that a good faith controversy exists among multiple plaintiffs or among multiple defendants. Obviously, better practice dictates that such a finding be made on the record. Here, the trial judge heard argument of counsel on the subject; he was familiar with K.S.A. 60-247(c ). He first ruled that the defendants were united in interest and were limited to a total of three peremptory challenges. He subsequently allowed a total of six peremptory challenges to the three defendants. Implicit in that allowance was a finding that a good faith controversy existed between defendant doctors and defendant hospital. The fact that the trial judge failed to make an explicit finding on the record, particularly in the absence of an objection, does not amount to reversible error. Lehar v. Rogers, 208 Kan. 831, 837-38, 494 P.2d 1124 (1972).
Second, plaintiff argues that not one of the defendants pled, contended, or argued that another defendant was at fault. Instead, all defendants took the position that none of them was at fault; that if anyone was at fault, it was the plaintiff or her deceased husband. As we view it, however, K.S.A. 60-247(c ) requires the trial court to rule on the request for additional peremptory challenges based on the record before it at the time of ruling. Here, plaintiff alleged various acts of negligence against the defendant doctors and defendant hospital that would have amounted to good faith controversy if the allegations had been made by any of the defendants. Although comparative negligence standing alone would not be sufficient in all cases to constitute a good faith controversy among multiple defendants, the trial judge knew that under comparative negligence the jury by necessity would have to compare the negligence of the parties and fix the percentage of fault based on plaintiff's allegations. The potential was present for the doctors to try to shift the allegation of improper diagnosis to the hospital for its failure to provide the doctors with accurate charts from which to work, and for its failure to promptly notify them of significant physical complaints; and the hospital might have sought to relieve its alleged negligence by asserting that its employees were merely following the doctors' orders and the orders themselves were negligently given. Keeping in mind that the decision of granting additional peremptory challenges is by statute a discretionary one, and the trial judge must necessarily make such determination at the outset of the trial when he is attempting to anticipate whether such a controversy might arise at trial, we are unable to say here that no reasonable person could have taken the view adopted by the trial court. Stayton v. Stayton, 211 Kan. at 562, 506 P.2d 1172. Although distinguishable from the factual situation before us, a similar result was reached in Massoni v. State Highway Commission, 214 Kan. 844, 852-53, 522 P.2d 973 (1974); Lehar v. Rogers, 208 Kan. 831, 494 P.2d 1124; Healer v. Inkman, 94 Kan. 594, 146 P. 1172 (1915).
II., III. EXAMINATION OF WITNESSES
Plaintiff next argues that the trial court abused its discretion in allowing the hospital's attorney to cross-examine two witnesses for the doctors and in denying plaintiff's request to conduct re-cross-examination of the same two witnesses.
As to the cross-examination, plaintiff does not identify any particular objection or assert any specific prejudice, but merely argues that it...
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