Smather v. May
379 S.W.2d 230
May 15, 1964.
ACTION: Reversed with directions.


Automobile damage action. From a judgment of the Circuit Court, Knox County, Sampson B. Knuckles, J., the defendant appealed. The Court of Appeals, Stewart, J., held that plaintiff's failure to respond to requests for admissions that plaintiff, the owner of truck, and co-plaintiff, the driver of truck, were negligent in colliding with defendant's automobile at intersection and that defendant had sustained stated special damages entitled defendant who had filed a counterclaim to instructed verdict on liability and special damages.

STEWART, Judge.
This is an appeal from a judgment on a verdict in the Knox Circuit Court awarding appellee, Dewey May, the sum of $1000 for damages incurred when a truck owned by appellee, May, and driven by Tommy Warren, another appellee herein, collided with a motor vehicle owned and operated by O. K. Smather, appellant herein.

Appellees have failed to file briefs in this appeal, although they have obtained nine extensions of time in which to do so. Appellant finally moved to invoke the provisions of RCA 1.260(c)(3), asking this Court to regard appellees' failure to file briefs as a confession of error and to reverse the judgment without considering the case on its merits. This Court issued an order submitting this cause and we have elected, in accordance with RCA 1.260(c)(1), to accept appellant's statement of the facts and issues as correct.

Appellant urges reversal on the ground that appellees failed to comply with the provisions of CR 36.01 which reads, in part:
'After commencement of an action a party may serve upon any other party a written request for the admission by the latter of * * * the truth of any relevant matters of fact set forth in the request. * * * Each of the matters of which an admission is requested shall be deemed admitted unless, within a period designated in the request, not less than 10 days after service thereof * * * the party to whom the request is directed serves upon the party requesting the admission either (1) a sworn statement denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully admit or deny those matters or (2) written objections on the ground that some or all of the requested admissions are privileged or irrelevant or that the request is otherwise improper in whole or in part, * * *.'

Appellees filed suit against appellant for personal and property damages growing out of the collision of the truck of appellee, May, with the car of appellant, Smather. Appellant filed a motion to dismiss and an answer. Shortly thereafter appellant served a request for admissions on appellees but the request was never answered by either of them. Appellant later filed a counterclaim and another request for admissions, but this request was also ignored, appellees filing only a reply to the counterclaim.

At the trial appellant moved the trial court to find against appellees on their complaint and for him on his counterclaim upon the basis that the matters of which admissions were requested, but not responded to, should be deemed admitted as established facts. The motion was overruled. The case was tried, resulting in a verdict of $1000, as heretofore mentioned, in favor of appellee, May. Appellant thereafter moved for judgment notwithstanding the verdict and filed a motion and grounds for a new trial.

Appellant's request for admissions asked that appellees admit as truth that:
1. Appellee, Warren, gave an arm signal only 75 feet before the intersection where he turned, which is less than the distance of 100 feet required by KRS 189.380(2), before such a turn is made.
2. Although the truck was so constructed as to require that it be equipped with signals as required by KRS 189.380(4), the truck was not so equipped.
3. An agency relationship existed between appellee, May, the owner of the truck and appellee, Warren, the driver of the truck.
4. Appellee, Warren, negligently and carelessly operated the truck so as to cause it to collide with appellant's car.
5. Appellant's car was damaged $1500 and he incurred $580 medical expenses.

The judgment entered on the verdict was reversed and ordered set aside on an appeal to this Court. The opinion held that whether the defendant, Sponcil, at the time of the accident, was operating his motor vehicle negligently or carelessly, was an admissible fact and, when the defendant failed to answer as required by the rule, such a fact stood admitted and required no proof in respect thereto. In remanding the case for a new trial, the opinion on this point said (343 S.W.2d 838): 'The court should peremptorily instruct the jury to find for the plaintiff the amount of the special damages admitted by the default of the defendant and any additional special and general damages for personal injuries which the plaintiff may prove.'

The record shows appellant on two occasions served a request for admissions on appellees. The trial court's order of January 28, 1963, recites the fact that no answer was made to them by either of appellees.

Wherefore, the judgment is reversed and directed to be vacated; and an order shall be entered dismissing the complaint and taking the allegations of the counterclaim as confessed; but only the special items of damages, set forth in the request for admissions, shall be awarded. The trial court shall at a new trial instruct the jury to find for appellant, not to exceed $25,000 in amount, any additional special and general damages for personal injuries which he may prove.

Ky.,1964
SMATHER v. MAY
379 S.W.2d 230


     

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