Shehi v. Southwest Rentals, Inc.

• Decision Date: 10 June 1967
• Docket Number: No. 44788,44788
• Citation: 428 P.2d 838,199 Kan. 265
• Parties: Lawrence D. SHEHI, Appellant, v. SOUTHWEST RENTALS, INC., and G. L. Hersh d/b/a Economy Printers, Appellees.
• Court: Kansas Supreme Court

Page 838

428 P.2d 838

199 Kan. 265

Lawrence D. SHEHI, Appellant, v. SOUTHWEST RENTALS, INC., and G. L. Hersh d/b/a Economy Printers, Appellees.

No. 44788.

Supreme Court of Kansas.

June 10, 1967.

Syllabus by the Court

In an action to recover damages for personal injuries sustained, in the unloading of a printing press from a truck brought by the operator of a transfer and storage business against the owners of the printing press and truck involved, the record is examined and, as set forth in the opinion, it is held there remained no genuine issue as to any material fact and defendants' motion for summary judgment was properly sustained.

David K. Clark Manhattan, argued the cause, Maurice E. Vorhies, manhattan, with him on the briefs, for appellant.

Donald Patterson, Topeka, argued the cause, David H. Fisher, C. K. Sayler, Jack L. Summers, Edwin D. Smith and Jerry R. Palmer, Topeka, with him on the briefs, for appellees.

KAUL, Justice:

This was an action by the plaintiff, Lawrence D. Shehi, against the defendants to recover damages for alleged injuries caused by the independent acts or omissions of each defendant. Plaintiff has appealed form an order sustaining a motion for summary judgment as to each defendant.

In his petition plaintiff alleged that defendant Southwest Rental Inc., (referred to herein as Southwest) was engaged in the business of leasing cars and trucks. That defendant Hersh was engaged in the printing business in Manhattan and operated the business under the name of Economy Printers.

On or about June 23, 1963, defendant Hersh rented a truck from Southwest for the purpose of transporting heavy items of printing equipment (printing press) from an unknown destination (Pittsburg, Kansas) to his place of business at 530 Freemont Street, Manhattan. The plaintiff was requested by Hersh to help unload the equipment from the turck. Plaintiff was injured when the printing press was being unloaded.

Plaintiff alleged his injuries were caused by the negligence of defendant, or defendants, in the following respects:

'(a) In failing to properly equip said truck with those items necessary to properly move and unload the equipment carried or to be carried thereon, the equipment being carried being known to the defendants;

'(b) In failing to properly instruct those persons renting equipment as to the proper method or sued in loading or unloading equipment that might be carried or moved upon said truck;

'(c) In failing to properly advise the plaintiff and others as to the proper unloading of said equipment;

'(d) In failing to properly unload said equipment form said truck using those items of equipment which were necessary and proper to accomplish the job with safety;

'(e) In failing to properly supervise the unloading of said equipment thereby causing injury to the plaintiff.'

Defendants filed a joint answer in which they denied negligence and alleged contributory negligence and assumption of risk on the part of plaintiff as affirmative defenses.

Interrogatories were submitted to and answered by all parties. Some written admissions of the plaintiff were received pursuant to K.S.A. 60-236. Plaintiff's deposition was taken on behalf of defendants. An affidavit of Gary Cromer, local agent for Southwest, was filed by defendants and affidavits of Olaf A. Jones, Clifford Bammes, Wilma Bammes and Charles W. Johr were filed by plaintiff. There is no contention that pretrial discovery had not been completed.

On entering judgment the trial court filed a memorandum of decision. As to Southwest, the trial court held in substance that its duty was contractual and the record reflected no breach upon which plaintiff could rely for his cause of action. As to defendant Hersh, the trial court found that plaintiff, by his testimony in his deposition, showed that he was contributorily negligent and that his negligence was the proximate cause of his injury, and further that he assumed any risk involved.

The plaintiff's contentions on appeal may be resolved into the proposition that there remained disputed questions of fact as to the negligence of both defendants and also as to the defenses of assumption of risk and contributory negligence in relation to the liability of defendant Hersh. The defendants support the conclusion of the trial court and in addition contend that the testimony of Shehi, in his deposition, completely absolves defendant Hersh of any actionable negligence.

This court has had unmerous occasions since the enactment of K.S.A. 60-256(c) to pass on the propriety of summary judgments rendered pursuant thereto. Some of our recent decisions, in which we have discussed the standards of measurement involved, are Bowen, Administrator v. Lewis, 198 Kan. 605, 426 P.2d 238; Jarnagin v. Ditus, 198 Kan. 413, 424 P.2d 265; Collins v. Meeker, 198 Kan. 390, 424 P.2d 488; Green v. Kaesler-Allen Lumber Co., 197 Kan. 788, 420 P.2d 1019; Wilson v. Deer, 197 Kan. 171, 415 P.2d 289.

We would call particular attention to the opinion in Secrist v. Turley, 196 Kan. 572, 412 P.2d 976, and Brick v. City of Wichita, 195 Kan. 206, 403 P.2d 964, in which the subject was thoroughly treated, the purpose of the statute discussed, and guidelines for its usage announced.

We do not believe it necessary to reiterate in detail the import of the decisions referred to. By way of summation it can be stated that we have strictly adhered to the admonition of the statute (60-256(c)) that a summary judgment may not be rendered unless:

'* * * (T)he 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 a judgment as a matter of law. * * *'

Most of the difficulty has arisen when it becomes necessary to determine what is a 'genuine issue' and what is a 'material fact.' Standards by which these matters may be determined are set out in Secrist v. Turley, supra, where we said:

'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. * * *' (196 Kan. p. 575, 412 P.2d p. 979.)

Considering the facts in the instant case to which the rules are to be applied we find that even though a summary judgment is not usually feasible in a negligence case (3 Barron and Holtzoff, Federal Practice and Procedure, Summary Judgments, § 1232.1, cited with approval in Secrist v. Turley, supra), the judgment rendered was a proper disposition of this case.

Conceding that issues were framed by the pleadings we turn then to consideration of the facts developed by the various pretrial discovery exhibits contained in the record. In determining whether the issues, framed by the pleadings, are maintained by the facts before us we are compelled to consider them in the light most favorable to plaintiff.

The facts, with one exception which will be pointed out in the course of the opinion, are gleaned entirely from the deposition of plaintiff.

Shehi was 46 years of age at the time of the accident and at the time was engaged in the moving business. It was a general transfer and storage business and consisted primarily of the moving of household goods and office equipment, some of which could be considered to be of a heavy nature such as safes, pianos and refrigerators. At the time of the accident Shehi owned and operated approximately thirty vehicles in his business in the Manhattan area. He was employed by the Zoeller Transfer and Storage Company from 1945 to 1961, when he purchased the company, since then he has been to owner and operator of the business known as Shehi Transfer and Storage Company.

Hersh operates a printing place known as the Economy Printers. The printing plant had been formerly owned and operated by a Mr. and Mrs. Best. After Mr. Best Mrs. Best married the defendant (G. L. Hersh). Shehi had no knowledge of this marriage prior to the date of the accident and had never met Hersh until that date. Shehi had moved...