Oertel v. Phillips

• Decision Date: 11 June 1966
• Docket Number: No. 44486,44486
• Citation: 197 Kan. 113,415 P.2d 223
• Parties: William D. OERTEL, a Minor, by and through Joseph G. Oertel, his father and next friend, Appellant, v. Florence A. PHILLIPS, Appellee.
• Court: Kansas Supreme Court

Page 223

415 P.2d 223

197 Kan. 113

William D. OERTEL, a Minor, by and through Joseph G Oertel, his father and next friend, Appellant, v. Florence A. PHILLIPS, Appellee.

No. 44486.

Supreme Court of Kansas.

June 11, 1966.

Syllabus by the Court

An order of the district court granting the defendant's motion for a new trial and setting aside the jury's verdict in favor of the plaintiff upon the ground that it erred as a matter of law in instructing the jury is not a final decision in the action and is not appealable as a matter of right within the purview of K.S.A. § 60-2102(a).

Tom Boone, Leavenworth, argued the cause and was on the briefs for appellant.

Lewis C. Smith, Kansas City, argued the cause, and J. Milton Sullivant, Gerald L. Rushfelt, Clifford T. Mueller and Ralph D. Lamar, Kansas City, and Ethan Potter, Leavenworth, were with him on the briefs for appellee.

FATZER, Justice.

This appeal is predicated upon the order of the district court granting the defendant's motion for a new trial.

This action was commenced by the plaintiff-appellant, William D. Oertel, a minor, by and though Joseph G. Oertel, his father and next kin, against the defendant-appellee, Florence A. Phillips, to recover damages for personal injuries resulting from a vehicular collision at the intersection of Broadway and Pennsylvania Streets in the city of Leavenworth. The appellant was a fifteen-year-old boy operating his motor scooter with a restricted driver's license. The evidence disclosed that on April 13, 1963, he was going west on Pennsylvania Street with the intention of making a right-hand turn at the intersection of Pennsylvania and Broadway. He stopped at the entrance of the intersection and looked both ways; he put his scooter into low gear, looked again, turned north on Broadway, and was struck by the appellee's car and pushed a car's length past the intersection. His left ankle was fractured and he was permanently injured.

The case was tried to a jury, commencing on December 14, 1964, upon issues framed by the pleadings which charged the appellee with five specific acts of negligence and the appellant with five specific acts of contributory negligence. The trial lasted two days and the jury returned its verdict in favor of the appellant in the sum of $3,750. On December 23, 1964, the appellee filed a motion for a new trial, setting forth four grounds of alleged error. One of the grounds of error alleged that Instruction No. 11, which advised the jury as to the degree of care required of a fifteen-year-old minor operating a motor scooter with a restricted driver's license, was an erroneous statement of law.

On February 25, 1965, the motion for a new trial was fully heard and the district court took the motion under advisement. On April 16, 1965, in a memorandum opinion, the court granted the motion for a new trial and set aside the jury's verdict. The court found that Instruction No. 11 was erroneous as a matter of law and was misleading to the jury; that the appellee's rights had been substantially affected thereby, and that she had not waived her right to assign the instruction as error.

On April 29, 1965, the appellant perfected this appeal from the district court's order of April 16, 1965, granting the appellee's motion for a new trial and setting aside the jury's verdict.

Subsequent to the filing of the record on appeal, the appellee filed a motion to dismiss the appeal upon the ground that the order from which it was taken was not a final decision of the action within the purview of K.S.A. 60-2102, and, therefore, was not appealable. The motion was denied with leave to renew at the hearing on the merits of the appeal. When the action was heard, the appellee renewed the motion and it was orally argued by both parties.

K.S.A. 60-2102 states when the jurisdiction of the supreme Court can be invoked. That part of the statute here pertinent reads:

'(a) As of right. The appellate jurisdiction of the supreme court may be invoked by appeal as a matter of right from: * * *

'(4) A final decision in any action, except in an action to recover moeny, the amount in controversy must be in excess of five hundred dollars ($500). In any appeal or cross-appeal from a final decision any act or ruling from the beginning of the proceedings shall be reviewable. * * *' (Emphasis supplied.)

Subsection (b) provides when other appeals may be taken to the supreme Court, but under the record presented it is not here material. It is sufficient to say, however, that appeals under that subsection may not be perfected as a matter of right.

The controlling question presented for decision may be stated: Is an order granting a new trial 'a final decision' which the statute makes appealable as a matter of right? This court has not decided the question since the adoption of the new Code of Civil Procedure, but it will be noted that unless otherwise specifically provided, appeals are limited to final orders involving an amount in excess of $500. (Advisory Comittee Notes, § 60-2102.) In Connell v. State Highway Commission, 192 Kan. 371, 388 P.2d 637, it was said:

'It would serve no useful purpose to extend this opinion by discussing the meaning of the words 'final order' or the phrase 'merits of the action, or some parts thereof' as used in G.S.1949, 60-3302 and 60-3303, nor to review the cases which have considered the statutes. These sections were repealed by the adoption of the new code, which will control future appeals, and the decisions which interpreted the old provisions are now obsolete except as they may be applicable to cases, if any, remaining on the appeal docket.

'The policy of the new code leaves no place for intermediate and piecemeal appeals which tend to extend and prolong litigation. Its purpose is to secure the just, speedy and inexpensive determination of every action.

'No attempt was made (in K.S.A. 60-2101) to define the word 'final' and confuse the issue. The word is to be given its ordinary meaning. A judgment or an order is to be considered as final if all the issues in the case are determined, not just part of the issues. * * *' (l. c. 374, 388 P.2d 640.)

It is clear that under the statute, for an order of the district court to be final and appealable it must be such as would result in the final determination of the action. A final order was defined in Cusintz v. Cusintz, 195 Kan. 301, 404 P.2d 164, where it was said:

'A final order from which an appeal will lie is one which finally decides and disposes of the entire merits of the controversy, and reserves no further questions or directions for the future or further action of the court. (Connell v. State Highway Commission, 192 Kan. 371, 388 P.2d 637.) An order...