Secrist v. Turley

• Decision Date: 09 April 1966
• Docket Number: No. 44426,44426
• Citation: 412 P.2d 976,196 Kan. 572
• Parties: Lester SECRIST and Neva Secrist, Appellants, v. George W. TURLEY and Joe Lee, Appellees.
• Court: Kansas Supreme Court

Page 976

412 P.2d 976

196 Kan. 572

Lester SECRIST and Neva Secrist, Appellants, v. George W. TURLEY and Joe Lee, Appellees.

No. 44426.

Supreme Court of Kansas.

April 9. 1966.

Rehearing Denied May 10, 1966.

Syllabus by the Court

1. The purpose and propriety of summary judgments under the provisions of K.S.A. 60-256 and the rules applicable thereto are considered and applied.

2. The rule announced by this court, that where a person drives an automobile along a highway on a dark night at such speed that the car cannot be stopped or turned aside within the range of vision of the lights on his car, such person is guilty of negligence as a matter of law, has many exceptions involving questions of fact.

3. The question of negligence, including the determination of proximate cause, and the effect of an intervening cause and its foreseeability, ordinarily rests in the province of the trier of the facts.

4. In an action for damage resulting from death by negligence, the record is examined and it is held, there remained genuine issues of material facts, and the trial court erred in granting summary judgment for the defendants.

A. L. Shortridge, Joplin, Mo., argued the cause, and Paul Armstrong, Columbus, was with him on the briefs, for appellants.

John B. Towner, Pittsburg, argued the cause, and H. Gordon Angwin, Pittsburg, was with him on the briefs, for appellees.

HATCHER, Commissioner.

This is an appeal from a summary judgment in an action growing out of the alleged negligent operation of automobiles resulting in a collision and death.

The chief issue on appeal is whether there remained a genuine issue as to any material fact. With this issue in mind we state the facts which may be gleaned from the pleadings.

On June 21, 1964, at about 12:10 A.M., the defendant, George W. Turley, was driving a 1958 Ford automobile on Langdon Lane about four miles south of Pittsburg in Crawford County, Kansas. Langdon Lane, which was formerly U. S. Highway 69, is a blacktop public highway and is straight and level for several miles from the point involved in this controversy.

The Ford automobile being driven by Turley was towing a 1955 Chevrolet which was equipped for drag racing. The Chevrolet was being steered by the defendant, Bob Berry. Joe Lee was riding as a passenger in the Ford.

At the time and place above mentioned, Gary Duane Secrist, while driving a Chevrolet Corvette in a southerly direction, overtook and collided with the Chevrolet from the rear. As a result of the collision, Patricia Elaine Hughes, a passenger in the Corvette, was thrown on to the east side of the highway and seriously injured. Some ten or fifteen minutes later while Gary, who had been administering to Patricia, was attempting to remove her from the highway or shield her with his body, a Dodge pickup truck driven by Percy C. Montee toward the north, struck and killed them both.

The parents of Gary filed this action for damages as a result of his death. The petition specifically alleged:

'* * * That at said time and place the defendants, and each of them, were negligent as hereinafter alleged and the combined and concurring negligence of the defendants, and each of them, proximately and directly caused the death of plaintiffs said son and plaintiffs damages as hereinafter set forth.

'4. That at said time and place the defendants, and each of them, failed to use ordinary care and were negligent in the following respects, to-wit:

'a. The defendants Berry, Turley and Lee negligently failed to have said towed Chevrolet equipped with a red tail light visible for 500 feet to the rear.'

The defendant, Montee, was charged with negligence in numerous particulars. The petition alleged a joint enterprise on the part of the defendants other than Montee. The petition further alleged:

'That as the proximate and direct result of the combined and concurring negligence of the defendants, and each of them, plaintiffs said son was injured and killed as aforesaid * * *.'

The prayer was for statutory damages in the amount of $25,000 plus funeral expenses.

The defendants, other than Montee, filed separate answers in which they denied negligence; denied that the original collision caused serious injury to Patricia; denied negligence which was the proximate and direct cause of Gary's death; denied that they were engaged in a joint adventure, and alleged as a special defense:

'That the loss and damages which plaintiff sustained were contributed to by and caused by the carelessness, negligence and want of attention or omission on the part of the decedent, Gary Duane Secrist.'

The record does not disclose an answer by the defendant, Montee, but it does appear that in answer to an interrogatory plaintiff admitted that:

'* * * A Covenant Not To Sue was entered into by plaintiffs and Percy C. Montee, November 27, 1964, and that defendant's insurance company paid plaintiffs the sum of $9,000.00. This Covenant Not To Sue was as to defendant Percy C. Montee only.'

The defendants, other than Montee, filed a motion for summary judgment based on the contention that the pleadings, answers to interrogatories and affidavits on file show that there is no genuine issue as to any material fact, and that the defendants are entitled to a judgment as a matter of law.

The trial court entered summary judgment for defendants.

The plaintiffs have appealed.

The appellants contend that it was error to sustain the motion for summary judgment for the reason there existed a genuine disputed issue of fact as to the negligence of the defendants and whether such negligence concurred to cause the death of plaintiffs' son, Gary.

We are forced to agree with appellants' contention. Considering first the legal approach to the propriety of the summary judgment, we are forced to conclude that there remains a genuine issue as to material facts. A summary judgment may not be issued unless '* * * the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.' (K.S.A. 60-256 (c).)

This court has had occasion since K.S.A. 60-256(c) went into effect to pass on the purpose and propriety of the use of motions for summary judgments.

In Herl v. State Bank of Parsons, 195 Kan. 35, 403 P.2d 110, we announced a few basic principles which should govern the use of motions for summary judgments. In Brick v. City of Wichita, 195 Kan. 206, 403 P.2d 964, the matter was quite thoroughly treated in a well written opinion. In the above cases the judgments granting the motions for summary judgment were reversed on the ground there remained a genuine issue as to a material fact. In Hartman v. Stumbo, 195 Kan. 634, 408 P.2d 693, and also in Board of Satanta, etc. v. Grant County Planning Board, 195 Kan. 640, 408 P.2d 655, we held that the record left no genuine issue as to a material fact and that the moving party was entitled to judgment as a matter of law. These cases would indicate that the propriety of a summary judgment must depend on the application of the clear provisions of the statute to the facts and circumstances of each particular case.

The statement of certain general principles applicable to the specific issues in this case may aid in the future application of the statute. However, care will be taken to stay close to the provisions of the statute itself which are quite clear as to procedure and standards to be applied in passing on such motions. An attempt to apply and follow the multitude of cases considering the federal or similar state rules may cause a court to be governed more by aphorisms announced in the opinions than by the unambiguous provisions of the statute.

The purpose of the rule is to obviate delay where there is no real issue of fact. It should do much to eliminate nuisance litigation and save time and expense. However, a summary judgment should never be granted for the single purpose of saving the time and expense of a trial, or be used for the purpose of depriving litigants of a jury trial. The manifest purpose of the rule is to eliminate sham claims which might otherwise cause needless and time consuming litigation.

In the final analysis a court should not determine the factual issues on a motion for summary judgment but should search the record for the purpose of determining whether a factual issue exists. If there is a reasonable doubt as to the existence of a material fact a motion for summary judgment will not lie. No matter how the explanation of the rule is phrased we always return to the language of the rule, there must be left 'no genuine issue as to any material fact.'

The proper application of the rule leaves but two rather simple questions for determination, i. e., what is a 'genuine issue' and what is a 'material fact?' The answer as to what constitutes a 'genuine issue as to any material fact' appears to account for most of the voluminous opinions on the question.

It may be said that an issue of fact is not genuine unless it has legal controlling force as to a controlling issue. A feigned or imaginary issue is not a genuine issue. A disputed question of fact which is immaterial to the issues does not preclude summary judgment. If the disputed fact, however resolved, could not affect the judgment, it does not present a genuine issue of a material fact. It has been said that before summary judgment is granted the court must be convinced that the issue is not genuine, or that there are only immaterial or imaginary factual issues.

It would serve no useful purpose to cite the numerous cases touching on the rules above set forth as pronounced by the federal courts and the courts of our sister states, many of which are not in harmony. Those wishing to research the question further than the Kansas cases cited will find the above rules announced and supported by a collection of cas...