Security Mill. Co. v. Ketchum

• Decision Date: 12 December 1959
• Docket Number: No. 41539,41539
• Citation: 185 Kan. 694,347 P.2d 433
• Parties: SECURITY MILLING COMPANY, Inc., et al., Appellees, v. Richard E. KETCHUM et al., Appellants.
• Court: Kansas Supreme Court

Page 433

347 P.2d 433

185 Kan. 694

SECURITY MILLING COMPANY, Inc., et al., Appellees, v. Richard E. KETCHUM et al., Appellants.

No. 41539.

Supreme Court of Kansas.

Dec. 12, 1959.

Syllabus by the Court

1. Circumstantial evidence in a civil case in order to be sufficient to sustain a verdict need not rise to that degree of certainty which will exclude every reasonable conclusion other than that reached by the jury (following: Sternbock v. Consolidated Gas Utilities Corp., 151 Kan. 81, 98 P.2d 162; Briggs v. Burk, 174 Kan. 440, 257 P.2d 164).

2. The record in an action growing out of the collision of two trucks on a highway is examined and held: (a) the verdict and special findings of the jury were supported by sufficient, competent evidence; (b) no reversible error appears in the instructions of the trial court, and, (c) on the record, the trial court committed no error in permitting cross-examination of defendant driver as to former convictions of traffic violations.

James P. Mize, Salina, argued the cause, and C. L. Clark and T. M. Lillard Jr., Salina, were with him on the briefs, for appellants.

Robert H. Royer, Abilene, argued the cause, and Paul H. Royer and James E. Ahearn, Abilene, were with him on the briefs, for appellees.

JACKSON, Justice.

This appeal involves an action for property damage growing out of a collision between two trucks which occurred on the morning of February 1, 1957 on U. S. highway 81 at about 10:30 some seven miles south of Salina. The Security Milling Company as plaintiff sought to recover the value of its truck and cargo of grain from Ketchum, the owner and driver of the other truck. The defendant filed a cross-petition, and both trucks being operated as licensed motor carriers, their respective insurance companies were made parties to the action. After a trial to a jury, plaintiff received a verdict in the sum of $3,769.83, upon which the trial court entered judgment after the overruling of post trial motions. Defendant has appealed.

The plaintiff's truck at the time of the accident was being driven by Gerald Lady, who was killed in the collision. This action did not involve any claim for damage on account of his death or other personal injuries suffered by the drivers. The damage suffered by the parties as to the trucks and cargo was stipulated between the parties before the beginning of the trial and no evidence was introduced upon that subject.

At the time of the accident, plaintiff's truck, a 1957 Chevrolet, loaded with livestock and poultry feed was southbound. Defendant was driving his International truck tractor pulling a van type semi-trailer north on the highway. The collision occurred some 156 feet north of a bridge in fair weather with a dry pavement and in full daylight. The payed portion of the highway was twenty feet wide and there were shoulders thirteen feet wide on each side of the road. Each truck is shown to have been eight feet wide. Obviously, the two trucks could easily have passed on the highway without colliding, and this action concerns the dispute as to which driver was at fault in allowing the collision to take place.

Defendant has specified nine errors in his abstract, some of which are obviously not subject to review upon this record, but has combined his objections into four heads in the brief. We shall take up these four questions separately.

Defendant first contends that the evidence is insufficient to sustain the answers to the special questions and the general verdict, and that therefore the judgment should be reversed. Despite the usual rule holding that this court in reviewing the question will look only to see whether there is any competent evidence to support the findings and verdict of the jury, and that matters of weight and credibility are for the triers of fact and not this court (West Kan.Dig., Appeal & Error, k837 (7); Hatcher's Kan.Dig., Appeal & Error, § 495), defendant would seem to argue that a different rule should be applied in this case. It is contended that all of the evidence of plaintiff was circumstantial in that neither of plaintiff's two witnesses actually saw the accident happen, and that therefore, the findings of the jury were based upon mere speculation. We fear defendant has been carried away by his ardor and has overstated his case.

In Sternbock v. Consolidated Gas Utilities Corp., 151 Kan. 81, 98 P.2d 162, 163, the third paragraph of the syllabus reads:

'Circumstantial evidence in a civil case, in order to be sufficient to sustain a verdict, need not rise to that degree of certainty which will exclude every reasonable conclusion other than that reached by the jury.'

Later in the opinion of the Sternbock case, we find the following:

'It is true plaintiff attempted to establish the cause of the fire by circumstantial evidence. If such evidence fairly authorized the inference of negligence, it was sufficient. Hashman v Wyandotte Gas Co., 83 Kan. 328, 111 P. 468; Cracraft v. Wichita Gas Co., 127 Kan. 741, 742, 275 P. 164. This, however, was not a criminal action, but a civil action and in order to sustain a verdict in a civil case circumstantial evidence need not rise to that degree of certainty which will exclude every reasonable conclusion other than that arrived at by the jury. Kansas City, Ft. S. & M. Railroad Co. v. Perry, 65 Kan. 792, 70 P. 876; Chicago, R. I. & P. Railway Co. v. Wood, 66 Kan. 613, 72 P. 215; Hashman v. Wyandotte Gas Co., 83 Kan. 328, 329, 111 P. 468; Cracraft v. Wichita Gas Co., 127 Kan. 741, 742, 275 P. 164; Asche v. Mathews, 136 Kan. 740, 18 P.2d 177; Noller v. Aetna Life Ins. Co., 142 Kan. 35, 38, 46 P.2d 22. In Kansas City, Ft. S. & M. Railroad Co. v. Perry it was held: 'The fact that soon after the passing of an engine, a fire starts near a railway track in an enclosed field, covered at that time with a growth of highly inflammable vegetation, and travels before a high wind in a direction away from the track, is sufficient to warrant a jury in finding that the fire was caused by the operation of the railroad, without its appearing that the engine emitted sparks or live cinders or was put to special exertion, and without further proof excluding other possible origins.' Syl. par. 1.'

The case of Briggs v. Burk, 174 Kan. 440, 257 P.2d 164, 171, involved an automobile accident much like the one in the case now being considered. In the opinion the court said in part:

'Under our decisions there can be no question that negligence may be established by circumstantial evidence, See, e. g., Sternbock v. Consolidated Gas Utilities Corp., 151 Kan. 81, at page 86, 98 P.2d 162, at page 166, and cases cited; In re Estate of Modlin, supra [172 Kan. 428, 241 P.2d 692], also that the physical facts of a motor vehicle collision may be sufficiently clear to enable the triers of fact to form a judgment of how the collision occurred and who was at fault, although there was no eye witness to the collision. Sawhill v. Casualty Reciprocal Exchange, 152 Kan. 735, 107 P.2d 770.

'Long ago this court in Chicago, R. I. & P. Railway Co. v. Wood, 66 Kan. 613, 72 P. 215, with respect to the sufficiency of circumstantial evidence and touching other matters pertinent to the issue now under consideration, said:

"Circumstantial evidence in a civil case, in order to be sufficient to sustain the verdict of a jury, need not rise to that degree of certainty which will exclude any and every other reasonable hypothesis. The jury is not infrequently called on to decide between two or more theories, and in doing so may exercise their own best judgment in accordance with their oath-bound consciences. This must necessarily be so, for it is the province of the jury, and not of the judge, to determine whether the evidence better supports this or that theory. We invade their domain if we shall require it to say that a given set of circumstances are as consistent with one theory as with another. This court, in a very recent case, Kansas City, Ft. S. & M. Railroad Co. v. Perry, 65 Kan. 792, 70 P. 876, had occasion to quote with approval the rule laid down by Prof. Greenleaf upon this subject, which is as follows: 'In civil cases it is sufficient if the evidence, on the whole, agrees with and supports the hypothesis which it is adduced to prove.' Greenleaf § 13a. * * * It is true, as announced in Chicago, R. I. & P. Railroad v. Rhoades, supra [64 Kan. 553, 68 P. 58], that presumptions may not be based upon presumptions, and that it will not do to consider chance or circumstantial evidence having but a questionable or circumstantial basis of fact; but this is very far from announcing that an undisputed fact may not be used as a basis from which to draw a reasonable conclusion, even though some other and opposite conclusion equally reasonable might also be drawn, otherwise we might have a condition where a question of fact could not be settled, because the circumstances upon which its settlement depended might point to two or more equally reasonable conclusions. As between two or more reasonable deductions from circumstantial evidence, the court is not at liberty to direct which one the jury shall adopt.' 66 Kan. at pages 616 and 617, 72 P.2d at pages 215, 216.'

The case of Hutchens v. McClure, 176 Kan. 43, 269 P.2d 473, also involved an automobile accident. At page 46 of 176 Kan., at page 475 of 269 P.2d the court said:

'Negligence like any other issue of fact may be proved by circumstantial evidence. See Brown v. Clark, 152 Kan. 274, 103 P.2d 907.

'It was the province of the jury to weigh all conflicting evidence and to draw all reasonable conclusions from the evidence offered. See Brugh v. Albers, 141 Kan. 223, 40 P.2d 380; Sawhill v. Casualty Reciprocal Exchange, 152 Kan. 735, 107 P.2d 770; and Briggs v. Burk, 174 Kan. 440, 257 P.2d 164.'

Attention is further directed to Haga v. Moss, 181 Kan. 171, syl. p5, 311 P.2d 281.

In view of the above authorities, and those cited in the opinions, we shall attempt...