Pennsylvania Nat. Mut. Cas. Ins. Co. v. Dennis

• Decision Date: 11 December 1965
• Docket Number: No. 44156,44156
• Citation: 408 P.2d 575,195 Kan. 594
• Parties: PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, a Corporation, Appellant, v. George A. DENNIS, Appellee.
• Court: Kansas Supreme Court

Page 575

408 P.2d 575

195 Kan. 594

PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, a Corporation, Appellant, v. George A. DENNIS, Appellee.

No. 44156.

Supreme Court of Kansas.

Dec. 11, 1965.

Syllabus by the Court

1. Where the defendant in an action tried to the court without a jury moves for involuntary dismissal of the action at the close of the plaintiff's case pursuant to the provisions of K.S.A. 60-241(b), the plaintiff's evidence is to be determined by the same rules that are applied in determining the evidence on a motion for a directed verdict in a jury case.

2. Under the facts and circumstances related in the foregoing syllabus, the court, under the rule to be applied in testing the sufficiency of the plaintiff's evidence, shall consider all of the plaintiff's evidence as true, shall consider that favorable to the plaintiff, together with all reasonable inferences to be drawn therefrom, and disregard that unfavorable to the plaintiff, and shall not weigh any part that is contradictory, nor weigh any differences between direct and cross examination, and give the evidence of the plaintiff a liberal construction resolving all doubt against the defendant; and if so considered there is any evidence which sustains the plaintiff's claim on any theory, the motion should be overruled.

Aubrey J. Bradley, Jr., Wichita, argued the cause, and E. Lael Alkire, Richard B. Clausing, Robert A. Coldsnow and Gillard Cohen, Wichita, were with him on the brief for appellant.

Benjamin Foster, Wichita, argued the cause, and Kenneth F. Beck Wichita, was with him on the brief for appellee.

SCHROEDER, Justice.

This is an action for damages arising out of an automobile collision at a city intersection. The trial court after hearing the plaintiff's evidence sustained the defendant's motion for judgment on the evidence. Appeal has been duly perfected from this order.

The only question is whether the plaintiff's evidence, viewed together with all inferences reasonably to be drawn therefrom in the light most favorable to the plaintiff, establishes that the plaintiff's insured driver was guilty of contributory negligence as a matter of law.

The plaintiff-appellant in this action, an insurance company, is subrogated to the rights of its insured driver and brings this action in its own name against George A. Dennis, defendant-appellee, who was driving the other automobile involved in the collision. The case was tried to the court without a jury.

Under the new code of civil procedure we are confronted at the outset with the nature of the motion presently before the court.

Under the general heading 'Dismissal of actions' K.S.A. 60-241(b) provides in part:

'* * * After the plaintiff has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. In an action tried by the court without a jury the court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all of the evidence. * * *'

We construe the defendant's motion for judgment on the evidence as the equivalent of a motion for involuntary dismissal, based 'on the ground that upon the facts and the law the plaintiff has shown no right to relief,' embraced within the foregoing language of the statute.

Mindful, that a demurrer directed to the plaintiff's evidence (authorized by the old code of civil procedure) has been abolished under the new code, the question immediately posed is by what rule is the plaintiff's evidence to be considered under a motion for involuntary dismissal.

The last sentence of 60-241(b), supra, above quoted, tends to suggest that the trial court is authorized to weigh the evidence to determine the facts.

Commenting on the above quoted section of the new code of civil procedure, Gard in his work on the Kansas Code of Civil Procedure Annotated, § 60-241(b), p. 202, says:

'Instead of demurring to the evidence after it has all been presented in support of a claim, the new rule provides that the defendant may move to dismiss, which is the same thing. He need not stand on his motion but, as was the former practice, he may proceed with his defense and renew his motion at the end of the trial. In any event if the action or claim is dismissed for lack of supporting proof it is a final adjudication on the merits, the same as though the adjudication turned on conflicting evidence and findings resulting from the trial.'

The foregoing comment, construing the language in question, would suggest that the plaintiff's evidence is to be considered by the same rules that were previously applied in testing the sufficiency of the plaintiff's evidence on demurrer.

It is noted the provisions of 60-241(b), supra, are identical to the provisions of Rule No. 41(b) of the Federal Rules of Civil Procedure. (28 U.S.C.A., following § 2072.)

Under § 919, entitled 'Insufficiency of Evidence,' 2B Barron and Holtzoff, Federal Practice and Procedure, appears the following:

'After the plaintiff has presented his evidence at the trial and closed his case, the defendant may move for a dismissal under the express terms of Rule 41(b) 'on the ground that upon the facts and the law the plaintiff has shown no right to relief'. Moreover the rule expressly provides that by making the motion the defendant does not waive his right to offer evidence in the event his motion is denied. A motion for involuntary dismissal at the close of the plaintiff's case takes the place of the old motion for a nonsuit and in a nonjury action somewhat fulfills the function of a motion for a directed verdict in a jury case. * * *' (p. 146.)

Under the Federal decisions, construing Rule No. 41(b), supra, of the Federal Rules of Civil Procedure, where a defendant's motion for involuntary dismissal is made after the plaintiff has completed the presentation of his evidence, the motion is held to be the equivalent of a motion for a directed verdict, and the evidence and all reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the plaintiff. (Federal Deposit Ins. Corporation v. Mason, 115 F.2d 548, 551 [3d Cir. 1940]; Shaw v. Missouri Pac. R. Co., 36 F.Supp. 651 [W.D.La.1941]; Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720 [see more detailed and informative opinion of same case in Circuit Court of Appeals, 58 App.D.C. 304, 30 F.2d 467]; United States v. Russian, 73 F.2d 363 [3d Cir. 1934]; and see, Sano v. Pennsylvania Railroad Company, 282 F.2d 936 [3d Cir. 1960]; and Makowsky v. Povlick, 262 F.2d 13 [3d Cir. 1959].)

Upon the foregoing authorities we hold, in a nonjury action where the defendant moves for involuntary dismissal after the plaintiff has completed the presentation of his evidence, the plaintiff's evidence is to be determined by the same rules that are applied in determining a motion for a directed verdict in a jury case.

Under our previous decisions in reviewing the propriety of an order sustaining a motion for a directed verdict--as in the case of a demurrer under the old code--the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling...