Thompson v. Norman

• Decision Date: 04 March 1967
• Docket Number: No. 44688,44688
• Citation: 424 P.2d 593,198 Kan. 436
• Parties: Lucille THOMPSON, Appellee, v. Marlin D. NORMAN, Appellant.
• Court: Kansas Supreme Court

Page 593

424 P.2d 593

198 Kan. 436

Lucille THOMPSON, Appellee, v. Marlin D. NORMAN, Appellant.

No. 44688.

Supreme Court of Kansas.

March 4, 1967.

Syllabus by the Court

1. A ruling by a trial judge excluding evidence may not be made the basis of error upon appellate review where the

judge later reverses that ruling and there is opportunity to present the evidence previously excluded.

2. Error may not be predicated upon the exclusion of evidence which is merely cumulative and does not add materially to the weight or clarity of that already received.

3. Our procedural code now prescribing our rules of evidence contains no rule excluding evidence because it is self-serving.

4. A person whose deposition has been taken by a litigant, but whose presence at the trial could not be procured, does not thereby become a person present at the hearing and available for cross-examination with respect to an extra-judicial statement previously made by him, so as to make admissible such a statement as an exception to the rule excluding hearsay evidence pursuant to K.S.A. 60-460(a), where in the deposition the person was not confronted with the extra-judicial statement allegedly made by him.

5. K.S.A. 60-460(j) broadens our former case law permitting declarations against interest by eliminating the requirement of unavailability of the declarant, and by expanding the interests to include declarations against penal or social interest along with pecuniary or proprietary interest.

6. Prior to the admission of a declaration against interest as an exception to the hearsay rule the trial judge must as a preliminary measure of trustworthiness find that the character of the declaration was of such nature that a reasonable man would not make it unless he believed it to be true. The burden is upon the one offering a declaration against interest to satisfy this foundational requirement.

7. This court will not lay down nice, hard and fast rules to determine admissibility of declarations against interest as exceptions to the hearsay rule pursuant to K.S.A. 60-460(j). The determination of admissibility rests in the sound discretion of the trial judge under the particular circumstances disclosed.

8. The first clause of K.S.A. 60-460(l) provides as an exception to the hearsay rule a declaration of a presently existing subjective condition, that is, a specified mental or physical condition existing at the time of the utterance, which necessarily includes an element of res gestae, if not true spontaneity.

9. Extrinsic evidence of prior contradictory statements made by a witness, offered to affect his credibility, may in the discretion of the trial judge be excluded unless the witness was so examined while testifying as to give him an opportunity to identify, explain or deny the statements (K.S.A. 60-422).

10. Instructions to a jury are to be considered as a whole and in their entirety, and each instruction is to be considered in connection with all other instructions in the case.

11. The submission of written interrogatories to be answered by the jury upon return of a general verdict under K.S.A. 60-249(b) rests in the discretion of the trial judge.

12. The record of trial in a tort action examined and held, the trial judge did not err in (1) the exclusion of certain evidence offered by defendant; (2) the instructions to the jury; or (3) the refusal to submit a written interrogatory to the jury.

Darrell D. Kellogg, Wichita, argued the cause, and W. A. Kahrs, Robert H. Nelson, H. W. Fanning, Richard C. Hite, Roger Sherwood, and Richard L. Honeyman, Wichita, were with him on the brief for appellant.

Patrick J. Warnick, Wichita, argued the cause, and Warner Moore and Robert E. Burchfiel, Wichita, were with him on the brief for appellee.

HARMAN, Commissioner.

This is an action for damages for personal injuries growing out of an automobile collision. A jury trial resulted in a verdict for plaintiff. Defendant's appeal is based principally upon exclusion of evidence and instructions to the jury.

On December 20, 1963, at about 8:00 a. m. at an intersection in the city of Wichita, a collision occurred between an automobile driven by the plaintiff, Lucille Thompson, and one owned by Howard Stamm. The identity of the driver of the Stamm vehicle is in dispute. At the time of the collision Howard Stamm, one Larry Kindsvater and the defendant Marlin Norman were occupants of the Stamm automobile. According to the evidence it was being driven either by Larry Kindsvater or by the defendant Norman.

The defendant was eighteen years of age, Stamm was nineteen and Kindsvater was twenty-three. All lived in Anthony, Kansas. Defendant and Stamm were friends of long-standing. Several hours prior to the collision, and at approximately 5:00 a. m. Stamm and defendant picked up Kindsvater who had finished a night work shift at a grill in Anthony. Stamm was driving the automobile. The group drove around in Anthony for a short period, then started for Wichita. The testimony regarding their activities thereafter is in conflict as will be shown.

The plaintiff's evidence pertinent to this appeal consisted of her own testimony, that of two police officers, her husband, her mother, her sister and Larry Kindsvater.

Plaintiff testified that at the time in question she was taking her son and a neighbor's child to school, driving east on Esthner street; at its intersection with Millwood street, a north-south street, there is a yield sign which controls southbound traffic on Millwood street prior to entering the interesection; as she approached the intersection she was traveling about twenty to twenty-five miles per hour; she looked both ways but did not see any cars; she never saw the car that hit her, she just heard a loud explosion and remembered nothing until she woke up in the hospital.

The police officers testified as to their investigation at the scene of the collision soon after it occurred; the point of impact was located in the southwest quadrant of the intersection, plaintiff's automobile being knocked sideways sixty-four feet; Norman, Stamm and Kindsvater were present; defendant Norman stepped forward and identified himself as the driver of the Stamm vehicle; the officers checked the brakes of the Stamm automobile and found it had none; defendant stated the brakes had failed on the Kellogg viaduct and they had stopped and checked them and found there wasn't anything they could do with them and had continued on; one officer detected an odor of beer in the Stamm automobile; defendant and Stamm stated they had drunk a couple of beers before leaving Anthony or Harper; defendant signed a traffic accident report stating he was the driver and describing the collision as follows:

'Going South on Millwood and brakes failed to work. There was a yield right of way-could not stop-Did not see yield right of way at the time. Hit brakes and would not work.'

The officers arrested defendant for failing to yield the right of way and for driving with defective brakes.

Plaintiff's husband, mother and sister testified that after plaintiff had been in the hospital for about a week Stamm and the defendant Norman visited her at the hospital and that defendant stated he was the driver of the vehicle which struck her.

Plaintiff offered the deposition of Larry Kindsvater, it appearing that neither party could procure his attendance as a witness at the trial. In the deposition Kindsvater testified that prior to reaching Wichita the group stopped for personal reasons and Norman started driving the car and continued driving until the time of the collision; following the driver change Kindsvater fell asleep but was awakened after arriving in Wichita and prior to the collision by someone 'hollering' and Norman pumping the brakes; there was a conversation about the brakes and Norman said he wished the brakes had been fixed; Kindsvater went back to sleep and did not awaken until seconds before the collision when Norman started pumping the brakes again; the three waited at the scene until the police arrived; Norman told them that he, Norman, was driving; Kindsvater denied that he was driving the car; he had no driver's license at the time, having lost it as a result of a reckless driving conviction; he had previously had another wreck near Cold-water; he knew nothing about a whiskey bottle at the time of this collision; he had had no whiskey or anything else to drink except one capful prior to leaving Anthony; he further denied there was any agreement among the three of them right after the collision for someone else to take the rap for his driving inasmuch as he had no driver's license; he paid for Norman's bond and part of his fine, about $53.00 in all, because he felt it was his responsibility since they had taken him to Wichita. He further testified he knew the brakes on the automobile were bad; he had chummed around with Stamm and Norman and had heard them talk back and forth that they should get the brakes fixed but they never had.

Defense testimony consisted of that of Howard Stamm and of the defendant Norman. Both denied Norman was driving the car at the time of the collision; they testified they had gone to Wichita so Kindsvater could do some Christmas shopping; that at the last stop prior to reaching Wichita Kindsvater, had two bottles of whiskey to do so until the time of the collision; that when they picked him up he, Kindsvater, had two bottles of whiskey from which Kindsvater and Stamm continued to drink; that upon approaching the intersection in question Kindsvater was speeding, driving about fifty miles per hour; that Norman noticed the yield sign and told Kindsvater to stop; Kindsvater hit the brakes which failed and he started pumping them; Kindsvater could not stop and slid into the side of plaintiff's automobile; after the collision Stamm ran down the street and hid the whiskey bottles; Stamm testified Kindsvater asked if either of the other two would...