Southard v. Lira, 46966

• Decision Date: 14 July 1973
• Docket Number: No. 46966,46966
• Parties: Barbara SOUTHARD, Appellee, v. Pedro LIRA, Appellant.
• Court: Kansas Supreme Court

Page 409

512 P.2d 409

212 Kan. 763

Barbara SOUTHARD, Appellee, v. Pedro LIRA, Appellant.

No. 46966.

Supreme Court of Kansas.

July 14, 1973.

Rehearing Denied Sept. 10, 1973.

Syllabus by the Court

1. If concurrent acts of negligence of joint tort-feasors contribute to bringing about injury to a third party, the degree of culpability is immaterial.

2. A defendant may not rely upon the doctrine of last clear chance by asserting the negligence of a joint tort-feasor.

3. An Agency relationship, aside from joint venture or partnership, which will justify the imputation of a driver's negligence to his passenger, must be of a master and servant or employer and employee type.

4. An ordinary 'car pool' or 'sharethe-ride' agreement is not a contract between the parties which constitutes the driver of an automobile the agent of the passenger.

5. A tort-feasor cannot diminish the amount of his liability by pleading payments made to plaintiff under the terms of a contract between the plaintiff and a third party who was not a joint tort-feasor.

6. The fact that an insured, for a stated consideration, executes to his insurance carrier a release of liability for bodily injury under the terms of the unisured motorist provision of his policy does not preclude the insured from maintaining an action against the party negligently causing his injuries. Nor are payments made by an insurance carrier under uninsured motorist coverage, payments which a tort-feasor can utilize to diminish the amount of his liability to the injured party.

7. K.S.A.1971 Supp. 60-248(a) has made it mandatory that a 12-member jury be used in all civil cases in district court in the absence of a stipulation by the parties for a lesser number. (Following Bourne v. Atchison, T. & S. F. Rly. Co., 209 Kan. 511, 497 P.2d 110.)

Charles L. Davis, Jr., Gray, Freidberg, David & Unrein, Topeka, argued the cause, and Michael J. Unrein, Topeka, was with him on the brief, for appellant.

Marian M. Burns, Burns & Burns, Lyndon, argued the cause, and Clyde M. Burns, Lyndon, was with her on the brief, for appellee.

PRAGER, Justice:

This is a personal injury action brought by the passenger of one automobile against the driver of another automobile. The plaintiff-passenger was Barbara Southard who will be referred to as the plaintiff or appellee. The defendant-driver was Pedro Lira who will be referred to as the defendant or appellant. The case was tried to a six-member jury and resulted in a verdict in favor of the plaintiff in the amount of $15,000. The defendant has appealed to this court.

The facts in the case are not in dispute and essentially are as follows: Barbara Southard lives in Waverly, Kansas, and works at Osage City. Marie Smith also lives in Waverly and works at Osage City. For approximately eight or nine months prior to the accident Marie Smith had been driving plaintiff to work. The plaintiff had had surgery and also her car was not working. Plaintiff paid Mrs. Smith a dollar per day for the ride. On December 9, 1969, Marie Smith was driving her vehicle in a westerly direction on highway K 31 toward Osage City with plaintiff as her passenger. The accident occurred at approximately 6:30 a. m. It was dark at the time of the accident and there was some snow remaining in the ditch and on the shoulder of the highway. The pavement was damp but not freezing.

The defendant Pedro Lira lives in Osage City and works at the Santa Fe shops in Topeka. Defendant's wife had driven him in the Lira automobile to a preestablished point on highway K 31 approximately three miles east of Osage City. There Mr. Lira was to be picked up by a fellow worker and driven to Topeka. Mr. Lira appeared at the point of accident a little early, so he attempted to turn his car around and head it back west toward Osage City for his wife's return trip. While attempting to turn it around Mr. Lira drove his automobile in the ditch where it became stuck with a part of the Lira automobile protruding onto the highway. There was a dispute as to the extent of the highway blocked by the Lira vehicle. Marie Smith testified that as she was driving along the highway at a speed of about 55 miles per hour she suddenly observed the Lira vehicle in her lane of travel. She remembered the Lira automobile being brown in color and stopped facing north. When she observed the vehicle in her headlights Marie Smith hit her brakes and started to move into the other lane. The rear end of the Smith vehicle started skidding. She lost control of her vehicle and it came to rest in the ditch on the right-hand side. Plaintiff was injured in the impact.

Marie Smith had no insurance to cover her vehicle. The plaintiff Barbara Southard had automobile liability insurance on her automobile with the Farm Bureau Mutual Insurance Company. The Farm Bureau Mutual policy contained uninsured motorist coverage. Plaintiff made a claim against Farm Bureau Mutual under the uninsured motorist coverage of her policy on the theory that Marie Smith was an uninsured motorist. Farm Bureau Mutual settled with plaintiff for $10,000 which sum was paid to the plaintiff. The plaintiff signed an uninsured motorist release and subrogation receipt which released Farm Bureau Mutual from any and all claims under the uninsured motorist coverage. By this release and subrogation receipt plaintiff Barbara Southard subrogated Farm Bureau Mutual to any claim which she might have against any person who might be liable for the accident. Plaintiff agreed in the subrogation receipt that Farm Bureau Mutual should be paid any money recovered from any other person as result of judgment or settlement with or without litigation to the extent of the $10,000 paid by Farm Bureau Mutual. Any recovery in excess of $10,000 was to be retained by Barbara Southard for her own use and benefit.

The defendant on this appeal has asserted nine points of claimed error. Several points involve the instructions which the trial court gave to the jury in the case. The record discloses that the trial court followed PIK Civil, giving the usual PIK instructions covering negligence, contributory negligence, proximate cause, burden of proof and the relative rights and duties of persons who use the streets and highways. The defendant urged the court to instruct on the subject of intervening and remote cause. We do not believe that instructions on these matters were appropriate under the facts of this case. The substance of the evidence was that Mr. Lira negligently placed his vehicle in a position where it blacked the traveled portion of the highway at a time when it was dark and the pavement was damp. The accident occurred in a matter of a few minutes thereafter. Under the circumstances the subjects of intervening and remote cause were really not involved. The issue in the case was whether or not the defendant's negligence in obstructing the highway was a proximate cause of the collision. The issue of proximate cause was a matter for argument by counsel and we are certain that this issue was properly argued and presented to the jury.

The defendant maintains that the district court erred in refusing the defendant's requested instruction concerning the doctrine of last clear chance. Counsel for the defendant argues that although the defendant may have been negligent in obstructing the highway with his vehicle, once he became stuck he was in a position of helpless peril and did everything available to him under the circumstances. He takes the position that Marie Smith could have avoided the accident through the exercise of reasonable care on her part and that her failure to exercise reasonable care was the immediate and proximate cause of the accident. The thrust of defendant's argument is that the doctrine of last clear chance may properly be invoked by the defendant as well as by the plaintiff and that an instruction on that subject should have been given. Counsel directs our attention to the annotation in 32 A.L.R.2d 543 where cases are cited holding that the doctrine of last clear chance is available to a defendant as well as to a plaintiff. The Restatement of Torts, § 479, and the majority of the jurisdictions treat the doctrine as applicable only for the benefit of a plaintiff who is faced with the defense of contributory negligence. This is a question of first impression in this court.

In our own decisions we have applied the doctrine as a legal theory to moderate the defense of contributory negligence. On a number of occasions we have held that essential elements of the doctrine of last clear chance are as follows:

(1) The plaintiff by his own negligence placed himself in position of danger;

(2) that the plaintiff's negligence had ceased;

(3) that the defendant saw the plaintiff in a position of danger, or by the exercise of due care should have seen plaintiff in such position, and by exercising due care on his part had a clear chance to avoid injuring plaintiff (4) That defendant failed to exercise such due care;

(5) as a result of such failure on defendant's part, plaintiff was injured. (Rohr v. Henderson, 207 Kan. 123, 483 P.2d 1089; Sander v. Union Pacific Rld. Co., 205 Kan. 592, 470 P.2d 748; Wegley v. Funk, 201 Kan. 719, 443 P.2d 323.) It is stated in Letcher v. Derricott, 191 Kan. 596, 603, 383 P.2d 533, that the last clear chance doctrine presupposes contributory negligence on the part of the person injured.

Professor Prosser in The Law of Torts, 4th Ed., § 66, p. 429, rejects the application of the doctrine of last clear chance in favor of a defendant in the following language:

'. . . A few courts, with something resembling billiard-parlor reverse English, have even purported to recognize a 'last clear chance' doctrine in favor of the defendant, to bar the plaintiff's recovery; but since this comes out at exactly the same place as the defense of contributory negligence without the doctrine at all, and is calculated only to bewilder the jury with...