Massoni v. State Highway Commission , 214 Kan. 844 ( 1974 )

Owsley, J.:

Concurring and dissenting in part. Although I concur in the conclusion in this case I respectfully dissent from the rule of law stated in Syllabus f 2. I am unable to draw any meaningful distinction between “contributed” to a collision and “caused” a collision with relation to testimony of a witness. A question posed as to what “contributed” to an accident, or the alternative, what “caused” an accident, calls for an identical answer. To expect a witness to distinguish between these words is ridiculous. The bench and bar of this state have used these words interchangeably for many years. To now decide the words are distinguishable is an improper use of judicial power.

I also dissent from Syllabus ¶ 5 of the opinion. This syllabus states that where the interests of multiple defendants are adverse to one another so that a good faith controversy exists among them, each such defendant is entitled to three peremptory challenges to the jury. The basis for this rule of law depends on an interpretation of K. S. A. 1973 Supp. 60-247, which provides:

“(b) Challenges. In civil cases, each party shall be entitled, to three (3) peremptory challenges. . . . Several defendants or several plaintiffs shall be considered as a single party for the purposes of making challenges. If there is more than one defendant and if the judge finds there is a good faith controversy existing between the defendants, the court shall allow the defendants additional peremptory challenges and permit them to be exercised separately or jointly.”

As I read this statute each party to a lawsuit is entitled to three peremptory challenges. It is only when there is a good faith controversy between multiple defendants that the court can allow the defendants additional peremptory challenges. I see nothing in the statute which provides that each of the defendants under these circumstances is entitled to three peremptory challenges. I construe the statute to permit the court to allow additional peremptory challenges, and that the number of additional peremptory challenges and whether they be exercised separately or jointly is discretionary. Whatever the action of the trial court may be this court can only review such action on die basis of whether the trial court’s action resulted in an abuse of discretion. I approve the granting of three additional peremptory challenges in this case, but I cannot do so on the basis the statute makes it mandatory to grant three additional peremptory challenges when a good faith controversy exists.

Prager, J., joins in the foregoing concurring and dissenting opinion.