Smith v. Blakey
| Decision Date | 03 November 1973 |
| Docket Number | No. 46940,46940 |
| Citation | 213 Kan. 91,515 P.2d 1062 |
| Parties | Cheryl K. SMITH, Appellee, v. James L. BLAKEY, Administrator, substituted for Dorothy I. Cropp. Deceased, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. When instances of misconduct of counsel were not isolated, but were an apparent part of trial strategy, and permeated the whole trial, the interests of justice allow appellate review although objections by offended counsel were not made during trial.
2. Remarks and misconduct of counsel constitute reversible error when, because of them, the parties have not had a fair trial.
3. K.S.A. 60-226(d)(3) (Am. effective January 1, 1973), does not require a party desiring to use a deposition to notify opposing party prior to trial that he intends to use the deposition.
4. Cumulative evidence is evidence of the same kind to the same point, and whether it is cumulative is to be determined from its kind and character rather than its effect.
5. Reference to part of a conversation on cross-examination waives the right to object to inquiry as to the whole of the conversation.
6. A foundation need not be established to use a prior written statement for impeaching a witness except as provided in K.S.A. 60-422.
7. The doctrine of assumption of risk is limited to cases involving a master-servant relationship and will not be used as a substitute for, supplement to, or corollary of, contributory negligence in other situations.
Robert L. Howard, of Foulston, Siefkin, Powers & Eberhardt, Wichita, argued the cause, and Darrell L. Warta, Wichita, James P. Mize of Clark, Mize, Linville & Miller, Chartered, Salina, and Robert L. Bates, Great Bend, were with him on the brief for appellant.
Raymond L. Dahlberg, of Turner, Chartered, Great Bend, argued the cause, and H. Lee Turner, Great Bend, was with him on the brief for appellee.
In this case the plaintiff-driver of an automobile sued the defendant-owner of the automobile for personal injuries arising out of a one-car accident allegedly caused by failure of a defective tire. The case was tried to a jury and the plaintiff recovered a substantial verdict. On appeal, defendant presents eight points which we will consider in the order submitted in her brief, after we summarize the pertinent facts.
Plaintiff Cheryl K. Smith is and has been since the date of the accident a paraplegic confined to a wheelchair. Defendant Dorothy I. Cropp was the owner and also a passenger in the car at the time of the accident. At time of trial she was also confined to a wheelchair. She married since the date this suit was filed and her name became Dorothy Blakey. She is now deceased and her husband, James L. Blakey, as administrator of her estate, is substituted as defendant-appellant herein.
The accident which gave rise to this cause of action occurred April 13, 1969, on U.S. Highway 56, approximately one and three-fourths miles west of Lyons, Kansas. Plaintiff and defendant were friends as a result of having worked together at the same restaurant in Great Bend. Defendant lived in Hoisington and plaintiff lived in Great Bend. Evidence was submitted that the parties decided to go to Hutchinson in defendant's car. Defendant asked plaintiff to drive as was often the arrangement when they traveled together. There was evidence from both sides that plaintiff was very familiar with defendant's car and at one time plaintiff had commented to defendant that defendant's tires were in bad shape. She urged her to get better tires because defendant drove from Hoisington to Great Bend to work each day and it was dangerous to drive on the highway with smooth tires.
Plaintiff testified that on the morning of their trip to Hutchinson she asked defendant, 'Is everything okay?', and defendant repled everything about the car was all right, but they would need to buy gas. It is plaintiff's contention throughout the trial that from defendant's reply she assumed the worn tires had been replaced. She had previously heard defendant ask a tire dealer to get her some tires and defendant's reply that everything was checked out except gas confirmed plaintiff's belief the tires had been purchased. Plaintiff admitted she did not look at the tires before she began driving and did not know they were the same tires she had previously told defendant were dangerous. Plaintiff testified that had she known the tires were those she had previously pointed out to be dangerous, she would not have ridden in defendant's car.
Plaintiff and defendant, with plaintiff driving, set out for Hutchinson. There was testimony from employees at two different gas stations as to their efforts to buy gas for the trip. The testimony conflicted and some witnesses gave testimony reversing prior statements as to the appearance and conduct of the parties on the morning of April 13, just prior to the accident. Some witnesses were convinced they had been drinking and had liquor in the car, and that they tried to buy beer as well as gasoline. Witnesses gave pretrial statements to that effect. Defendant's attorney contended throughout the trial that the accident occurred due to the intoxication and fatigued condition of plaintiff who was driving. Plaintiff admitted she had worked all night and until 3:00 a. m. of the day of the accident. There was testimony that plaintiff and defendant stopped at a gas station in Great Bend twice within thirty minutes, attempting to buy gas on credit, and beer. They stopped at another station in Ellinwood, Kansas, for two dollars worth of gas. The evidence of drinking and reckless or abandoned driving from these witnesses was conflicting and inconclusive. The parties proceeded toward Hutchinson and at about 11:00 a. m., on a deserted, straight stretch of dry concrete highway, plaintiff lost control of defendant's car and it skidded 250 feet, coming to rest on the opposite side of the highway against a utility pole. Both plaintiff and defendant testified they heard a noise before plaintiff lost control and assumed it was the sound of a blowout on the right front tire. Both plaintiff and defendant testified that though neither saw the tires after the accident they thought the failure of the right front tire was the cause of the loss of control. Testimony of the driver of the two truck who saw the wrecked car immediately after the accident was to the effect that all tires on the car were inflated and supported the car as it was towed to the salvage yard.
The fact that defendant believed and asserted she was at fault in causing the accident, and the difficulty in defending her under these circumstances resulted in an acrimonious trial.
Defendant asserts the trial court erred in permitting misconduct by plaintiff's counsel on repeated occasions, wherein he verbally abused and attacked defense counsel and interjected improper statements during examination of witnesses, thereby preventing a fair and impartial trial.
Under our system of government, courts are instituted for the purpose of enforcing rights and redressing wrongs according to law. In jury trials, evidence is adduced for the purpose of ascertaining the truth, and instructions prepared by the court are given to inform a jury as to the law applicable to the facts. Jurors should ascertain the facts from the evidence, apply the law given them to the facts as they find them, and return a verdict accordingly. Within these limits counsel may present his client's case in the light most favorable to him. Constant and repeated attacks on opposing counsel, deliberately inserted in a trial to humiliate, degrade, and demean him before a jury, thwart and offend the basic purposes of a jury trial. It is the duty of the trial court to prevent such attacks in furtherance of the objects of their creation and, if made, remove their wrongful effects as far as possible. Such actions should be restrained by the trial court without the necessity of objection by offended counsel.
We are conscious of the rights of litigants and that improper action of their counsel should not be charged against them unless such action results in basic unfairness. Basic unfairness must be determined in the first instance by the trial court. Its decision must rest on the exercise of judicial discretion. On appeal, we must determine whether the trial court abused its discretion. In order to perform this function we must examine the alleged prejudicial material and from its nature determine whether it so so inherently prejudicial that a fair trial could not have resulted.
From the opening statements through the final arguments the record in this case discloses plaintiff's counsel personally attacked the ethics and integrity of defense counsel. Specifically, plaintiff's counsel accused defense counsel of: (1) being in bad faith; (2) trying to impeach honest answers; (3) putting words in the mouths of witnesses; (4) playing 'dirty pool;' (5) beating his client and other witnesses around; (6) 'sandbagging' witnesses; (7) abusing witnesses; (8) being unethical; (9) impeaching and not properly representing his client; (10) being a lawyer who had previously been admonished by the court in chambers and who during the course of the trial was in contempt of court; and (11) being heartless. Many of these remarks were repeated throughout the trial. Plaintiff's counsel, when referring to the principal defense counsel, usually did so as the 'man from Salina.'
The following remarks are from plaintiff's counsel's closing argument:
'Notwithstanding the fact that in this Courtroom for the past three days you have witnessed an unprecedented assault by a lawyer against his own client attacking his client's credibility, trying to brand her as a liar, as concealing facts. . . .'
...
To continue reading
Request your trial
-
Jackson v. City of Kansas City
...Kansas though its application is limited to cases such as this where a master-servant relationship is involved. Smith v. Blakey, Administrator, 213 Kan. 91, 101, 515 P.2d 1062. We turn first to our recent decisions in master-servant cases involving the doctrine. Mechtley v. Price, 217 Kan. ......
-
Rini v. Oaklawn Jockey Club
...Ill.App.3d 429, 90 Ill.Dec. 237, 481 N.E.2d 1037 (1985); Rosenau v. City of Estherville, 199 N.W.2d 125 (Iowa 1972); Smith v. Blakey, 213 Kan. 91, 515 P.2d 1062 (1973); Parker v. Redden, 421 S.W.2d 586 (Ky.1967); Murray v. Ramada Inns, Inc., 521 So.2d 1123 (La.1988); Wilson v. Gordon, 354 A......
-
Hacker v. City of Glendale
...(See Thompson v. Crownover (1989) 259 Ga. 126, 377 S.E.2d 660, 662, modified at 259 Ga. 126, 381 S.E.2d 283; Smith v. Blakey (1973) 213 Kan. 91, 515 P.2d 1062, 1070; Singleton v. Wiley (Miss.1979) 372 So.2d 272, 275; Melendres v. Soales (1981) 105 Mich.App. 73, 306 N.W.2d 399, 404; Landrum ......
-
Harrold v. Rolling J Ranch
... ... (See Thompson v. Crownover (1989) 259 Ga. 126, 377 S.E.2d 660, 662, modified [228 Cal.App.3d 65] at 381 S.E.2d 283; Smith v. Blakey (1973) 213 Kan. 91, 515 P.2d 1062, 1070; Singleton v. Wiley (Miss.1979) 372 So.2d 272, 275; Melendres v. Soales (1981) 105 Mich.App. 73, ... ...
-
Dangerous Crossing: the Line Between Proper and Improper Argument
...Kan. 625, 635, 847 P.2d 1258 (1993). 3. State v. Plunkett, 261 Kan. 1024, 1032, 934 P.2d 113 (1997). 4. Smith v. Blakely, Administrator, 213 Kan. 91, 94, 515 P.2d 1062 (1973). 5. State v. Whitters, 206 Kan. 770, 773, 481 P.2d 992 (1971). 6. State v. Potts, 205 Kan. 47, 53-54, 468 P.2d 78 (1......