Smith v. Marshall, 49096

CourtCourt of Appeals of Kansas
Writing for the CourtBefore FOTH; PARKS; FOTH
Citation577 P.2d 362,2 Kan.App.2d 213
PartiesSylvester SMITH, Jr., Appellant, v. Kevin P. MARSHALL, a minor, by Gloria A. Marshall, his natural mother and next friend, Appellees.
Docket NumberNo. 49096,49096
Decision Date14 April 1978

Syllabus by the Court

In a tort action for damages incurred in an automobile accident in which plaintiff sought compensation for pain and suffering, medical expenses, permanent injury, loss of time and income and other such damages as discovery and proof might disclose, it is held : (1) K.S.A.1975 Supp. 40-3117 does not require that the permanent disfigurement be "significant" or "serious"; (2) once the existence of a scar is established, whether it is a permanent disfigurement within the meaning of K.S.A.1975 Supp. 40-3117 is a matter of fact to be determined by the trier of fact, and (3) the summary judgment entered in this case was premature because genuine issues of material fact remain unresolved.

Fred W. Phelps, Jr., and Betty Joan Phelps, of Fred W. Phelps, Chartered, Topeka, for appellant.

Harold S. Youngentob and Thomas E. Wright, of Goodell, Casey, Briman & Cogswell, Topeka, for appellee.

Before FOTH, C. J., and ABBOTT and PARKS, JJ.

PARKS, Judge:

This is an action brought pursuant to the Kansas Automobile Injury Reparations Act, K.S.A.1975 Supp. 40-3101, et seq., commonly known as the Kansas No-Fault Insurance Act. Summary judgment for the defendant was entered on April 19, 1977. Plaintiff appeals.

As we turn to the factual background of this dispute, we should be mindful of the rules relating to the granting and appellate review of summary judgments. K.S.A. 60-256(c ) provides for the entry of summary judgment "if 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 a judgment as a matter of law. . . . "

An appellate court should read the record in the light most favorable to the party against whom summary judgment was entered. It should take such party's allegations as true, and it should give him the benefit of the doubt when his assertions conflict with those of the movant. Factual inferences tending to show triable issues must be considered in the light most favorable to the existence of those issues. If there is a reasonable doubt as to the existence of fact, a motion for summary judgment will not lie. Moreover, pleadings and documentary evidence must be given a liberal construction in favor of the party against whom the motion is directed. Mildfelt v. Lair, 221 Kan. 557, 561 P.2d 805, and cases cited therein.

On May 30, 1975, the plaintiff Sylvester Smith, Jr., Andy Smith, and Thomas Brown were passengers in a car driven by the defendant, Kevin Marshall. The defendant pulled over to the lefthand curb on a one-way street in Topeka, Kansas, to let the plaintiff out of the car. Plaintiff got out of the passenger side of the automobile and started toward his house, walking in front of the defendant's vehicle and behind another car which was parked at the curb. While plaintiff was between the two cars, defendant attempted to put his car in reverse, but instead put it in neutral or drive. The car then rolled forward, pinning the plaintiff between the two cars and injuring his lower right leg.

The crucial issue is whether under the facts of this case there remain material questions of fact to be decided by the jury.

One of the questions before the trial court was whether the threshold requirements for maintaining a claim for pain and suffering have been satisfied; or more precisely, whether the scar on the plaintiff's right leg is a permanent disfigurement within the meaning of K.S.A.1975 Supp. 40-3117. The trial court ruled as a matter of law that it is not. We disagree and hold that it is a matter of fact to be determined by the trier of fact.

In resolving that question it was necessary to examine the following section of the Kansas Automobile Injury Reparations Act, which provides that:

"In any action for tort brought against the owner, operator . . . of a motor vehicle . . . a plaintiff may recover damages in tort for pain, suffering, mental anguish, inconvenience and other non-pecuniary loss because of injury only in the event the injury requires medical treatment . . . having a reasonable value of five hundred dollars ($500) or more, or the injury consists in whole or in part of permanent disfigurement, a fracture to a weight-bearing bone, a compound . . . fracture, loss of a body member, permanent injury within reasonable medical probability, permanent loss of a bodily function or death. . . . " (K.S.A.1975 Supp. 40-3117.)

The only condition prescribed by K.S.A.1975 Supp. 40-3117 which is applicable in this case is that pertaining to permanent disfigurement.

In resisting the defendant's motion for summary judgment, the plaintiff presented evidence as to the nature and extent of his injuries. A chiropractor, Dr. Counselman, testified that the plaintiff had in fact suffered permanent disfigurement and permanent injury. Counselman had examined the plaintiff approximately five days after the impact, at which time he discovered that the plaintiff's bone and soft tissue were bruised. Moreover, at the defense counsel's request, Dr. Counselman used the plaintiff's leg as an exhibit and pointed out the scar to the court. His testimony revealed that the injured area was right on top of the bone and that "(i)f you hold it just right you can pull it and see a scar."

Following this line of questioning, the trial judge ran his finger over the leg in the area which Dr. Counselman had described and from a visual and a touch observation found no scarring, i. e., "broken skin with a lesion over the scarring." He further noted that the area was smooth but ascertainable as an innocuous discoloration of the right leg extending approximately one and one-fourth inches long and one-half inch in width.

By agreement of court and counsel, a photograph of plaintiff's leg was taken and made a part of the record. This exhibit has been examined by this court.

An analogous situation arose in Florida where the plaintiff was injured in an automobile accident which resulted in a 4.5 centimeter trap-door scar on his forehead. The trial court granted summary judgment in favor of the defendant because the scar was not a "permanent disfigurement" as required by the threshold requirements of the Florida Automobile Reparations Reform Act. The applicable Florida statute then in effect (F.S. 627.737) was similar to K.S.A.1975 Supp. 40-3117 and, like our statute, did not define the word "disfigurement." In reversing the trial court the Florida District Court of Appeal said:

"We hold that a permanent scar may be a permanent disfigurement within the contemplation of F.S. 627.737. We do not imply that every scar is a disfigurement but when the existence of the scar is established, whether or not it is a disfigurement is a matter of fact to be determined by the trier of fact and may not be resolved, when properly placed in issue, by summary judgment." (Gillman v. Gillman, 319 So.2d 165, 166-167 (Fla.App.1975).) (Emphasis supplied.)

Dr. Counselman's testimony established the existence of the scar. Although the defendant's counsel questioned the severity of the injury, he apparently conceded the scar's existence by saying:

"And if I have ever seen a minor claim with regard to a claim of disfigurement, the scar in question, I think has to fall in the category of being a minor claim. Now the statute is . . . written . . . in terms of . . . 'permanent disfigurement.' And permanent disfigurement, defined in my motion for Summary Judgment, is substantial disfigurement of a person. . . . It isn't any minor disfigurement. It is supposed to be a major disfigurement."

Contrary to the no-fault statutes in other states, there is no requirement in our statute that the permanent disfigurement be "significant" (now in effect in Florida) or "serious" (Connecticut). The applicable threshold requirement of K.S.A.1975 Supp. 40-3117 is simply permanent disfigurement. It being the function of this court to interpret statutes and not to rewrite legislation, we decline to view K.S.A.1975 Supp. 40-3117 as requiring that the permanent disfigurement be anything other than "permanent" and a "disfigurement." It is not our province to determine what the law should or should not be. Dougan, Administratrix v. McGrew, 187 Kan. 410, 415, 357 P.2d 319; State, ex rel. v. Mills, 171 Kan. 397, 401, 233 P.2d 720.

We adopt the Gillman decision as authority for vacating the summary judgment. Once the existence of a scar has been established, whether or not it is a permanent disfigurement is a matter of fact to be determined by the trier of fact on a case-by-case basis.

Judgment is reversed and the case is remanded for further proceedings.

FOTH, Chief Judge, dissenting.

Where my colleagues and I part company in this case is in our interpretation of K.S.A. (now 1977 Supp.) 40-3117, the threshold provision of our so-called "no-fault" insurance law. The majority finds no requirement in our statute that a permanent disfigurement be "significant" or "serious"; I believe those terms are implied by the statute read as a whole. The majority thinks that to read such qualifying adjectives into the statute would be to rewrite the statute; I believe such a reading is required by the manifest legislative intent.

The nature of the claimed disfigurement 1 is not seriously in dispute. Plaintiff's treating chiropractor, when asked to point out the injury to the court...

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7 cases
  • Stang v. Caragianis, 60768
    • United States
    • United States State Supreme Court of Kansas
    • June 3, 1988
    ...holding that whether it was a permanent disfigurement was a matter of fact to be decided by the trier of fact. Smith v. Marshall, 2 Kan. App. 2d 213, 214, 577 P.2d 362 (1978). The appellate court reasoned that once the existence of a scar was established, whether or not it was a permanent d......
  • Smith v. Marshall, 49096
    • United States
    • United States State Supreme Court of Kansas
    • December 9, 1978
    ...Sylvester Smith, Jr., appealed from the summary judgment and the Court of Appeals reversed the trial court. Smith v. Marshall, 2 Kan.App.2d 213, 577 P.2d 362 (1978). The matter is before this Court on petition for On May 30, 1975, the plaintiff was a passenger in a car driven by the defenda......
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