Mesecher v. Cropp, 47080

CourtUnited States State Supreme Court of Kansas
Citation213 Kan. 695,518 P.2d 504
Docket NumberNo. 47080,47080
PartiesElla MESECHER and Richard L. Mesecher, Appellants, v. Lee CROPP, an Individual, and Elmer F. Fox, et al., Appellees.
Decision Date26 January 1974

Page 504

518 P.2d 504
213 Kan. 695
Ella MESECHER and Richard L. Mesecher, Appellants,
Lee CROPP, an Individual, and Elmer F. Fox, et al., Appellees.
No. 47080.
Supreme Court of Kansas.
Jan. 26, 1974.
Rehearing Denied March 6, 1974.

Page 506

Syllabus by the Court

1. A deposition of a party containing an admission against interest is admissible, regardless of whether the party is present at the trial or absent from the jurisdiction. It is not necessary to call the adverse party as a witness in order to introduce such a deposition into evidence.

2. Counsel is entitled to impeach a witness by showing prior inconsistent statement contained in a deposition. However, where a party's deposition is not inconsistent with his trial testimony it is not proper under the guise of cross-examining the witness to read the deposition at length and thereby create the impression before the jury that there are inconsistencies. The proper use of such a deposition is to introduce it during the cross-examining party's case-in-chief.

3. Where a trial judge observes conduct of counsel towards a witness which he regards as unfair, oppressive, threatening and unnecessarily hostile he has a duty to stop it, particularly after an objection is made. If he fails to do so, and after judgment finds that such conduct was prejudicial to the losing party and prevented a fair trial he should grant a motion for a new trial.

4. A doctor's written report of a physical examination is hearsay, and is not admissible into evidence unless it comes within some exception to the general hearsay rule.

5. Under K.S.A. 60-456 the facts 'made known' to an expert witness at the hearing, upon which he may base his testimony, are those facts which are put in evidence.

6. An expert witness may not be cross-examined on facts which have no basis in the evidence, and cross-examination may not be used as a device for placing before the jury facts not otherwise admissible.

7. An instruction on 'sudden emergency' should not be given where there is definite evidence of negligence on the part of the defendant and such an instruction might well cause the jury to lose sight of the negligence which caused the emergency.

8. The record is examined in an automobile collision case and it is held that the cumulative effect of at least three trial errors and one erroneous instruction so permeated the trial as to deprive plaintiffs of a fair trial.

[213 Kan. 696] Jack P. Steinle, Aurora, Mo., argued the cause, and John C. Woelk, of Woelk & Culley, Russell, was with him on the brief for the appellants.

Edwin P. Carpenter, Topeka, argued the cause, and H. Lee Turner and Raymond L. Dahlberg, of Turner, Chartered, Great Bend, were on the brief for the appellees.

FOTH, Commissioner:

This is an automobile collision case in which the jury rendered a verdict for the defendants and the plaintiffs have appealed. The primary plaintiff is Ella Mesecher, who sued for her personal injuries; her husband Richard joined as plaintiff on his claims for loss of consortium and for medical expenses. The primary defendant is Lee Cropp; his partners in the accounting

Page 507

firm of Elmer Fox and Company were joined as defendants because he was on firm business at the time he was involved in the collision.

The collision occurred at about 4:45 p. m. on December 18, 1968, on U.S. Highway 281 about 14 miles north of Russell, Kansas. The plaintiff Mrs. Mesecher was a passenger in a 1963 Ford being driven by her friend Florence Bates. She was going from her home in Lucas to Russell, where she was employed as a nurse at the city hospital. A heavy snow was falling as the Bates car turned south onto U.S. 281, and Mrs. Bates drove at 20 to 25 miles per hour. After about two miles the car developed engine trouble and stalled. Mrs. Bates brought the car to a stop in the southbound (west) lane, near the right shoulder.

It was still daylight, and there was no other traffic in sight. To the north, whence they had come, there was a long, straight, gentle rise in grade to a crest some half a mile away. Mrs. Bates got out of the car on the driver's side, either to check the car or push it; plaintiff started to slide over under the wheel when Mrs. Bates saw the defendant's car approaching from the rear and called out, 'Ella, he is going to hit us.'

Defendant was also headed south toward Russell in his Volkswagen. He had previously slowed to as little as five to ten miles per hour on account of the snow, but as he got nearer to Russell his speed picked up until he was running at about 35 miles per hour. When he saw the Bates car it was too late for him to stop, and rather than risk turning into the other lane or onto the shoulder [213 Kan. 697] he chose to slide into the Bates car. He was going, by his estimate, ten to fifteen miles per hour when he struck the rear of the Bates car. A pickup truck came along a few minutes later, also from the north, and stopped behind defendant's Volkswagen without incident.

Mrs. Mesecher, who was still in the Bates car when it was hit, sustained spinal injuries. Although the extent of those injuries was hotly disputed, she ultimately underwent a fusion of three cervical vertabrae.

After judgment was entered on the defendants' verdict of March 26, 1971, plaintiffs filed a motion for a new trial and an amended motion. At the time set for hearing, before plaintiffs presented argument, the trial court expressed its own concern over whether plaintiffs had had a fair trial. Specifically, the court insisted that its consideration of whether to grant a new trial should encompass the questions of (1) erroneous instructions, (2) misconduct of the defendants' counsel, and (3) misconduct of the defendant himself. Plaintiffs' motions alleged various trial errors in addition to those raised by the court, and including the first two. After the issues were thus defined, the hearing was continued for the parties to gather evidence and prepare briefs.

At the adjourned hearing the trial court ruled generally, and in some cases specifically, against the plaintiffs on all issues raised by their motions and by the court on its own motion, and denied a new trial. The court was obviously reluctant to make such a ruling saying:

'Overall, I suppose it is a fair statement that what most worries the court about this case, what he is most concerned with, is the simple fact that if the court had been the trier of fact, he would have reached a different conclusion than the jury did.'

Nevertheless, the trial court properly felt that he could not substitute his judgment of the facts for that of the jury.

As to the allegations of trial error, we think it a fair summary to say that the trial judge was acutely conscious of his role as arbiter and not advocate. This consciousness led him to 'bend over backwards' not to interject himself into the trial, but to give counsel as free a hand as possible. We shall note his comments on the problems this led to as we discuss what we consider the key issues in this appeal.

This court, after a careful review of the record, has concluded that the plaintiffs

Page 508

were deprived of a fair trial by the cumulative [213 Kan. 698] effect of at least three trial errors and one erroneous instruction. While it is possible to argue (and defendants do) that none of these might be reversible standing alone, the court is convinced that under the facts of this case the overall effect of these errors must have been prejudicial. Cf. Walker v. Holiday Lanes, 196 Kan. 513, 413 P.2d 63; Carpenter v. Gillard, 166 Kan. 689, 204 P.2d 595, Syl. 8; Brack v. Kleweno, 169 Kan. 569, 220 P.2d 125, Syl. 2.

The first two, which represent two aspects of the same problem, concern the use of the depositions of the primary parties. At the close of plaintiffs' case, after all their testimony was in, their counsel offered into evidence the deposition of the defendant Croop for the purpose of showing his admissions against interest. Counsel proposed to read to the jury those portions regarded by him as damaging to the defendant, including those relating to the absence of traffic, the location of the defendant when the Bates car was observed, the lookout by the defendant, the position of Mrs. Bates when he first observed her, the speed of the defendant, the unobstructed condition of the roadway, the weather and light conditions and the width of the roadway and shoulders.

Defense counsel objected and the court sustained the objection, Commenting:

'If you want to call Mr. Cropp as a witness, you, of course, could do so. If you want to propose stipulations, you can do so. I don't know why we have...

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22 cases
  • State v. Gonzalez, 91,469.
    • United States
    • United States State Supreme Court of Kansas
    • October 27, 2006
    ...55, 713 P.2d 957, and on In re Watson, 5 Kan.App.2d 277, 615 P.2d 801. These opinions make reference to our decision in Mesecher v. Cropp, 213 Kan. 695, 518 P.2d 504 In Mesecher, an automobile collision personal injury suit, defendant's expert, a neurosurgeon, had previously examined plaint......
  • In re Care and Treatment of Foster, 91,324.
    • United States
    • United States State Supreme Court of Kansas
    • February 3, 2006
    ...rely upon the inadmissible polygraph examination or results, those portions must be excluded from evidence. Cf. Mesecher v. Cropp, 213 Kan. 695, 702, 518 P.2d 504 (1974) (expert opinions based upon inadmissible evidence are inadmissible); West v. Martin, 11 Kan.App.2d 55, 713 P.2d 957, rev.......
  • Young v. Clark, 90SC354
    • United States
    • Colorado Supreme Court of Colorado
    • July 9, 1991
    ...the negligence which Page 372 caused the emergency." Kline v. Emmele, 204 Kan. 629, 465 P.2d 970, 973 (1970) (quoted in Mesecher v. Cropp, 213 Kan. 695, 518 P.2d 504, 511 (1974)) (approving trial court's refusal to give sudden emergency instruction). In the present case, the jury's attentio......
  • City of Wichita v. Eisenring, 83,919.
    • United States
    • United States State Supreme Court of Kansas
    • July 14, 2000
    ...tests not admitted into evidence was inadmissible as hearsay. In reaching this conclusion, the Court of Appeals cited Mesecher v. Cropp, 213 Kan. 695, 701-02, 518 P.2d 504 (1974). In Mesecher, an examining physician was not allowed to testify about findings made in a neurosurgeon's report. ......
  • Request a trial to view additional results

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