Sanders v. Sitton

• Decision Date: 28 January 1956
• Docket Number: No. 39932,39932
• Citation: 179 Kan. 118,292 P.2d 1099
• Parties: Mack SANDERS, Appellee, v. Dallas R. A. SITTON, Appellant.
• Court: Kansas Supreme Court

Page 1099

292 P.2d 1099

179 Kan. 118

Mack SANDERS, Appellee, v. Dallas R. A. SITTON, Appellant.

No. 39932.

Supreme Court of Kansas.

Jan. 28, 1956.

Syllabus by the Court.

1. One may, without abandoning his real name and without fraudulent intent, adopt any name different from his and by which he may transact business, execute contracts, sue and be sued.

2. A judgment rendered on a petition entitled in the professional name of the real sole party interest as plaintiff will not be reversed where the record discloses the name of the actual party plaintiff, and sufficiently identifies the plaintiff so far as his name is concerned as to disclose a complete bar to a similar action between the same parties, and substantial justice has been done and no substantial rights of the defendant have been prejudiced.

3. It is the identity of the individual that is regarded and not the name which he may bear or assume.

4. Where a party takes the stand as a witness his adversary has the right, on cross-examination, for the purpose of affecting his credibility, to inquire touching his past life and conduct, the limits of such inquiry being ordinarily within the discretion of the trial court.

5. While the general rule is that the extent of cross-examination of a witness is in the discretion of the trial court, a more searching examination is to be allowed of a witness who is a party principal and, where the determination of the main issue of fact must depend upon the credence of such a party, a wider range of cross-examination should be allowed than is usually permitted in the cross-examination of witnesses in general.

John W. Sowers, Wichita and Clarence R. Sowers, Wichita, on the brief, for appellant.

James W. Sargent, Jr., Wichita, and W. D. Jochems, J. Wirth Sargent, Emmet A. Blaes, Roetzel Jochems, Robert G. Braden, J. Francis Hesse, S. C. Durbin, Stanley E. Wisdom, Vincent L. Bogart and Cecil E. Merkel, Wichita, on the brief, for appellee.

WERTZ, Justice.

This was an action to recover damages for assault and battery. Plaintiff recovered judgment and defendant appeals.

The pertinent facts may be briefly stated: Plaintiff was a television and radio performer having the professional name of Mack Sanders and the real name of John Bozeman. On the night in question, he was returning the members of his band to their respective residences after a performance and, while taking the last band member home, a car driven by defendant drove alongside of them and continued to do so for a number of blocks. There were several young passengers in defendant's car, waving and calling to plaintiff. When plaintiff stopped at a street stop sign, defendant stopped about fourteen feet behind his car. At this time the passengers in defendant's car were still calling to plaintiff. He got out of his car and approached the driver's side of defendant's car to see what they wanted. Defendant told him the boys on the other side of the car wanted to see him and, as plaintiff proceeded around the front of defendant's car, some of the passengers alighted, and as plaintiff passed the glare of defendant's headlights in an attempt to go to the other side, he was struck on the jaw by defendant, causing a compound fracture of the left mandible, or a broken jaw, with penetration of the bone into the mouty cavity proper. Defendant and his companions immediately jumped into their car and sped away.

Plaintiff testified that his real and family name was John Bozeman; that Mack Sanders was his stage name and he went by that name on his television and radio programs, and it had been his professional name since the year 1948.

Defendant contended inasmuch as plaintiff's action was brought in the name of Mack Sanders instead of John Bozeman, he was not the real party in interest, and that the court erred in overruling his motion at the outset of the trial to make John Bozeman a party plaintiff, and in overruling his post-trial motions for judgment notwithstanding the verdict.

A somewhat similar situation arose early in this state in the case of Clark v. Clark, 19 Kan. 522. One Sarah J. Brown eloped to Kansas with Thomas J. Clark. They lived together and she was known only as Sarah J. Clark in the community. She brought an action in the name of Sarah J. Clark against him for money had and received. This court permitted for to sue in the name of Clark, since that was the name by which she was known in the community. We held that the real party in interest brought the action, as the record sufficiently identified such party so far as her name was concerned, as to disclose a complete bar to a similar action between the same parties.

One may, without abandoning his real name and without fraudulent intent, adopt any name different from his and by which he may transact business, execute contracts, sue and he sued. A man's name is the designation by which he is distinctively known in the community. Badger Lumber Co. v. Collinson, 97 Kan. 791, 156 P. 724.

A judgment rendered on a petition entitled in the professional name of the real sole party interested as plaintiff will not be reversed where the record discloses the name of the actual party plaintiff, and substantial justice has been done, and no substantial rights of the defendant have been prejudiced. Walker Implement Co. v. Ellis, 121 Kan. 405, 247 P. 637.

There is noting so sacred in a name that right and justice should be sacrificed to its sanctity. So a person may sue in any name in which he may contract, as well as in any neme by which he is generally known. Latham Mercantile & Commercial v. Harrod, 71 Kan. 565, 569, 81 P. 214; Badger Lumber Co. v. Collinson, supra, and authorities therein cited.

G.S.1949, 60-401, requires that every action must be prosecuted in the name of the real party in interest. The record discloses that John Bozeman was the actual plaintiff and...