*1
pro
26.070(1).
judgment. KRS
original
in an
order or
denied the same relief
Muir,
appellants, but
remedy
was available to
Merson v.
this Court.
ceeding in
they
it. No excuse
made no use of
Ky.,
On asking that his case be docketed
a motion of clerical mis- and for correction
for trial Essentially, sought the motions
prisions. were overruled. These motions
new trials. days elapsed had than ten
Since more police entry judgment, following the Floyd BELL, Appellant, over, longer control court in, 26.070(3). KRS jurisdiction the matter. v. effort Appellants’ unsuccessful HARMON, Appellee. Ernest Edward n then followed. Appeals Kentucky.
Court of provision for Generally, there is no 9, 1955. Dec. to the circuit appeal in criminal .an inferior judgment of an from court less than fine is $20. where court Criminal Practice, Section Code of refusal, failure, or 26.080(1). The KRS provide for such an Legislature power and discretion. its is within appeal Goodloe, 242 S.W. Lakes Ky., Fowler, 280 S.W.2d Walters police judgment of a An order city may modified, first-class aside, on motion within or annulled set entry the date days from three *2 Blackburn, Somerset, appel- &
Smith lant. Stephens, Whitley City, for
Leonard S. appellee.
CLAY, Commissioner.
passenger
in an automo-
Plaintiff was
by
driven
defеndant when it collided
bile
by one
Plain-
with another driven
Johnson.
Johnson,
defendant
sued both the
tiff
jury
returned a verdict
and the
defendant, exonerating Johnson.
by
appeal
The sole
on this
plaintiff’s
tes-
whether
timony in
the cause
this suit
admis-
accident
negligent.
the defendant
sion-.
by
question was raised
defendant on a
summary judgment under CR 56
motion for
verdict,
оn a
directed
motion
evidence.
the conclusion of
motions
denied.
Both
were
happened
straight
on a
highway
daylight.
broad
stretch
of,
automobile and that
The defendant’s
opposite
proceeding
direc-
was caused
The collision
tions.
Ky.,
Kentucky
Company,
277 S.
Ridge Coal
to the
of one of the automobiles
swerving
Anderson-Tully Com
W.2d
Kimble v.
wrong side of the road.
pany, D.C.Ark., 16
F.R.D.
pre-trial deposition
In a
*3
recog-
appellate
The
courts have
cause
Federal
established that
sole
summary judg-
scope
of the nized the limited
of the accident was
automobile,
consistently cau-
procedure,
have
operator
and that ment
of the other
motions
against granting
negligent. On
tioned trial courts
defendant was not
exists
summary judgment
any
if
doubt
which constituted for
basis of this
party
tó be dis-
to a
To
(hereinafter
right
as to the
trial.
may
the trial
a review of the trial
cussed), we
hold that there
be
are
granting
party
in
justified
that a
is enti-
court would have been
court’s determination
summary judgment. This
with
be inconsistent
the defendant
tled to a trial would
cautiously
whether or not
when
presents
question
proceed
as to
this admonition to
summary
action of the
judgment.
review the
It would
granting
should
denying
the motion therefor.
put
appellate
trial
court in the
in the mind of
trying
question
of doubt
courts seem as
The Federal
not think this
judge.
We do
trial
denying a motion for
sume that an order
proper
be
review.
would
be
summary
not reviewable
judgment is
denying
an order
refusal to review
Our
Fed
appealable. See 6 Moore’s
cause not
prej-
summary
can in no sense
judgment
Practice,
Drittel
Section
eral
party
rights of the
udice the substantive
Cir.,
Friedman,
Dutton
154 F.2d
still has the
making
motion since he
Cir.,
Corp.,
City
Defense
Service
the merits
his motion
right to establish
order,
Clearly
being
an
in
such
F.2d 458.
contrary
If the
trial of the cause.
Clay,
terlocutory,
appealable. See
is not
posi-
held,
had sustained his
one who
However,
56.03,
though
Comment
CR
hearing
fair
of the whole
after a
tion
appealable,
independently
certain inter
not
lose, because he
nevertheless
might
case
conjunc
locutory
are reviewable
orders
prove
fully
on an
had failed to
judgment;
g.,
e.
an order
a final
tion with
interlocutory motion.
verdict;
a motion for a directed
overruling
Thus the
a new trial.
granting
order
an
to consider the
decline
therefore
We
denying
an
sum
order
determination
in the denial of defendant’s
possible error
appealable
not
does not.
mary judgment is
summary judgment. Consistent
motion
question whether
necessarily resolve the
error,
61.01,
if
existed
CR
prop
be reviewed
such an order
motion,
prej-
ruling on this
erly presented.
ground not constitute a
and does
udicial
judgment.
reversal
However,
think
we
sоund reason
supports
ing
the conclusion that an order
presented on defend-
The same
summary judgment
denying
should not be
summary judgment was
motion for
ant’s
appeal.
(In passing may
reviewed on
it
by a motion for a
at the trial
again raised
granting
an
such judgment
noted that
order
plain-
the conclusion
directed verdict
a final order and is of course
forthwith
renewed when the
testimony and
tiff’s
(cid:127)
appealable.)
ground
closed
The
his case.
this motion was that
own testi-
Summary judgment procedure is
mony
admission that
not a substitute for a
It is a
trial.
time
negligent.
device, and the
saving
only
motion should
fully
if the
testified as follows:
sustained
court is
Plaintiff
He was
satisfied
genuine
is an absence of
in the front seat of
that there
and ma
defendant’s
issues,
being
factual
and all
which was
driven at
terial
doubts are
automobile
an
right
resolved in favor of the
35 miles
hour “to the
opposing
line” of the
See Hoskins’
road.
accident oc-
the motion.
Administrator v. center
right
unequivocal
unexplained
side of. the
curred on defendant’s
oncoming
car
road. Plaintiff observed
uncontradicted.”
when he was about 100
driven
Johnson
And further in the same section:
away
feet
and at that
“ * * *
proper
car
side
the road.
its
the admissions of a
Plaintiff stated
general
are
aas
rule
preclude
binding on him and
him from
got near us
“—when he
consequences
avoiding the
of his testi-
*
* *
cut
like this
our
of,
mony by the introduction
or reli-
car
face.”
and his
hit us
on,
ance
other evidence
the case
n
cut
did not
across the
car
unless the
and condi-
*4
Johnson
driving
give
probability
road into
until he
defendant’s
lane
the.
tions
rise to
of
of
testimony
was
20 feet
front
us”. Plain-
in the
“some
error
own
got
“never
by
tiff stated that defendant
over
unless the effеct thereof
avoided
of
road
explanation.”
on
side
the
the
some
Johnson
this collision occurred”.
before
Kentucky
recognized
we have
In
plaintiff’s tes-
The sum
substance of
and
contradicted, testimony
though"
that
of
even
operat-
defendant was
timony is that while
plaintiff
judicial
a
ad
may
constitute
careful mannеr at
ing his automobile
mission
an automobile accident case.
of
speed
on his
side
a reasonable
Davis,
Ky. 743,
286
151
Sutherland
S.W.
v.
road,
suddenly without
car
2d 1021. There it was held that when the
driving
into defendant’s
warning cut over
she knew the driver with
testified
the collision. Plaintiff
lane and caused
intoxicated,
whom she was
was
she
observe,
and did
in a
to
ob-
testimоny
her
by
was concluded
happened.
exactly
how
serve
contributory
thereby
negligence,
admitted'
unequivocally
testimony
His
establishes
conflicting testi
though
even
there
of this" accident was
sole cause
mony
respect to the driver’s condition.
with
Johnson, and defendant
of
upon
part
based in
opinion was
respect negligent.
inwas
of mind
state
fact that
knowledge,
mat
peculiarly within her
recognized
testi
that the
It is well
may
of mind
likewise
ters other than state
may
party
mony
constitute
of
knowledge
of a
be
within
admission,
binding and con
and as such is
party.
Am.Jur., Evidence,
20
him.
clusive
present
all fours with
one
A case on
Evidence,
C.J.S.,
.Section
§
Public
Louis
Service
is Mollman v. St.
Co./
Ed.,
9,
Vol.
Sec
Wigmore on
3d
618.
Mo.App.1946,
S.W.2d
There
applied
should
Thfe
tion 2594A.
rule
ain
taxicab that
passenger
was a
of
with caution because
the variable nature
collided
a streetcar. She testified in
with
testimony
ever-pres
and because
operated
taxicab
been
substance
possibility
judi
honest
ent
mistake. A
proper
manner and the accident was
cial
of this kind should in
essence
operator
negligence of the
caused
elements
(cid:127)contain the
of waiver. See Alamo
court,
The Missouri
streetcar.
the.
47,
Rosario, App.D.C.
Del
98 F.2d
v.
328.
holding a directed verdict should have been
respects similar to
It is in some
an election
company,
given for the defendant
taxicab
Shepherd,
Rowe
of causes of action. See
v.
observations,
pages
following
made
Ky., 283
621, 622:
C.J.S., Evidence,
381(d)
In we find
§
positively
“But
if
he testifies
following positive statement:
understandingly to the basic.facts and
case,
testimony
in the
in the
in the
“Admissions
circumstances
party
testimony
while witness
event his
would dеfeat his
subsequent
if
binding
recovery,
are
and conclusive
deliberate
he makes no
cor-
dence,
(1953
claim
Section 3594A
or modification under the
rection
mistake,
Supp.).
may
he
confusion or
testimony of
have the benefit of the
Supreme
Court has taken
Nebraska
contradictory
witnesses which is
other
mockery
the view that it would constitute a
to
his own
justice
permit
if a court should
words,
In
the same matters.
other
change
unequivocal testimony .(or
to
him-
better case for
cannot make out a
rely
contradictory
other
himself has testified
self than he
witnesses)
to make a case for himself
facts within
his case involves
where
which he has admitted did not exist. Goh
knowledge,
were to
for if this
Ruess,
linghorst
146 Neb.
20 N.W.
allowed,
tantamount
it would be
2d 381.
say
own ad-
permitting him
for his
testimony should
vantage that his own
jurisdic-
Whatever
rules exist
false, and that of some
regarded as
tions,
recognized
we have
that under cer-
true.
other witness as
tain
constitute a
admission. As
cited,
Davis,
plaintiff’s own
true that
stated in Sutherland
abovе
it is
“While
*5
Ky. 743,
page
testimony
purport
did not
to reveal
S.W.2d
1024:
every
situa-
relative fact or
and
each
to be
“We believe the law
that ad-
of the
in the occurrence
tion involved
given
fatal
in
missions
to his cause
the
instance, as the
(such,
to an
on
_of
action
precise
speed
or its
of the street car
trial,
the
of the case should be viewed
at the time the taxicab
location
light
in the
all the conditions
of
and
stop
light), it
brought to a
at the traffic
proven
case;
in
circumstances
the
and
which, if
did disclose a state of facts
all such circumstances and con-
unless
true, completely
the driver
exonerated
probability
give rise to the
of
ditions
any imputation of
the taxicab of
of
party’s
in the
he
error
responsi-
negligence, and cast the sole
permitted to avert
should not be
upon
bility for the accident
the motor-
testimony by
consequences of
his
man of the street car. This
on,
of, or reliance
introduction
other
plaintiff’s testimony
case where
con-
evidence
case.”
person-
sisted
no more than her own
opinion respecting
al estimate or
This rule was restated in Halbert v.
time, speed,
things
variable
as
or dis-
Ky. 648,
Lange, 313
S.W.2d
There
contrary,
tance. On the
it was a nar-
plaintiff
given
of the basic facts and
rative
circum-
deposition
binding
was held
to be
be
nots
stances in thе case within her own
cause at the trial his version of the accident
special knowledge
occupant
an
as
was modified.
taxicab,
given definitely
and was
positively
any suggestion
without
us
Let
now turn to the
of the
possibility
regards
of mistake
as
plaintiff given
occupied
at the trial. He
the relative courses and situations of
position
choice
to observe this accident.
figured in
the two vehicles which
Deliberately
unequivocally
he stated
collision.”
clearly
showing
facts
that the collision oc-
part
curred without fault on the
of defend-
in
The rule Missouri has been criticized.
certainty
ant. He narrated with
the basic
§17 A opinion plaintiff’s testimo In our rule which binds indicate. to a particular ny judicial admission that statement uttered on the stand damages an claim becomes artificial rightful Wigmore rule.” on IX, courts should not defendant. Our section 2594a. imposed upon (which a claim to enforce Davis, In Sutherland v. required someone else to pay) adopted this Court open deliberately re extension The majority opin- rule. pudiates While, cause of action. as we ion treats that authority case as for the said, exceptional have it is only in principle that a contradicted testi- directed a verdict should be mony may constitute a admission. ground With this conclusion I am agree. unable to cases, one we believe this is wherein involved in that case was the applied. A rule should verdict should plaintiff’s contributory negligence have been directed for the in an automobile defendant while testimony. the conclusion the latter was intoxicated. There was con- judgment is reversed with directions flicting evidence concerning the defendant’s judgment intoxication, to entеr a for the defendant. testified that
she realized he was In the drunk. course opinion we said: CAMMACK, Judge (dissenting). simply giving “She im- her for the With due pressions of an as participant event Court, majority feel constrained I or observer but she was testifying to expressed from therein the views to dissent facts within her knowledge, *6 judicial admissions. concerning e., i. аppel- realization of the fact that lee drunk of the acci- disputed It not that the record contains is * * dent (My emphasis.) (ap- sufficient evidence the defendant’s support pellant’s) negligence judg- to Since the was one of contributory only question is ment him. The negligence, plaintiff’s it was the state of plaintiff’s (appеllee’s) not whether or mind at the time of the accident which was “judicial constituted a admission” controlling. Her of mind state was a fact recovery prevent him so bind his as to “peculiarly within her knowledge” and we despite the other evidence the defend- held that her testimony on the matter there- negligence. If ant’s his not is fore constituted a admission and admission,” “judicial negli- the issue of should be deemed conclusive. The testimo- properly gence jury. submitted to ny which was contradicted did not concern mind, state of express “an only A waiv- is trial, intoxication of the er, preparatory defendant made attorney, party or his conceding Our later case of Halbert Lange, purposes of the trial the truth of some 648, 233 relied also * * * that alleged par- fact so the one opinion, re- majority likewise prove it, ty evidence to need offer no “judicial ad- extension of stricted disprove not it.” the other is allowed doctrine, par- involving mission” IX, Wigmore on party tes- ty’s casеs where the traditional definition section peculiarly within facts his tifies to jurisdictions so some been extended has Therein we said: knowledge. include, instances, state- as to certain by party during ments true test seems be whether “The Wigmore criticizes the exten- trial. on a testimony merely is nar- sion, de- saying: “The truth participat- events observed rative of comparison what pends all always present in, wherein there ed say the circumstances and all witnesses he, possibility that like the obvious mistaken, or witness, could be n testifying to facts he was whether knowledge. peculiarly within
[*] [*] *» n consideration, under
In the case now testified speed on his driving at a reasonable mere road. right side of the These plaintiff, not by -the
ly observed”' “events his. own knowl within. “facts cases, previous such, our
edge.” under As con my testimony-does “judicial
stitute admission.” BURCHFIELD, Appellant,
George Appellees. al.,
Ralph et PING Kentucky. Appeals of 9, 1955.
Dec.