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Kinyon v. Kinyon9/10/1991
Rehearing Denied November 5, 1991.
Certiorari Denied March 17, 1992.
TERRY KINYON, PERSONAL REPRESENTATIVE OF THE ESTATE OF LOYD WAYNE KINYON, APPELLANT,
v.
MAX KINYON d/b/a K-BAR COMPANY, APPELLEES, AND OKLAHOMA FARM BUREAU MUTUAL INSURANCE COMPANY, AN OKLAHOMA CORPORATION, DEFENDANT.
Appeal from the District Court of Pittsburg County; Robert A. Laydon, Judge.
Kenneth W. Klingenberg, Oklahoma City, for appellant.
Jeffrey A. King, Tulsa, for appellee.
OPINION
The opinion of the court was delivered by: HUNTER, Chief Judge.
This is an appeal by Terry Kinyon, the personal representative of Wayne Kinyon, plaintiff below, from an adverse jury verdict in a wrongful death case. Defendants below were Max Kinyon, and K-Bar Company. The issues involving the remaining defendant, Farm Bureau, were bifurcated. Farm Bureau was, therefore, not a party to the issues tried below, nor is it a party to this appeal.
ISSUE
The sole issue in this case is whether the trial court committed reversible error in admitting certain impeachment testimony. We find that the trial court did not err in its rulings on this issue.
FACTS
Wayne Kinyon was a principal in K-Bar as was his father, Max Kinyon. Wayne Kinyon's personal representative, Terry Kinyon, was Wayne Kinyon's brother. K-Bar was a partnership engaged in a cattle buying operation. The accident at issue here happened on February 22, 1988. Wayne Kinyon was using a 1973 model 2 ton feed truck owned by K-Bar. A feed bin and chute were mounted on the truck. Wayne Kinyon was driving through an alley between two feed lots loading feed into the feed troughs. Wayne Kinyon stopped and got out of the truck. The truck rolled forward and crushed him against one of the alley gates. Despite his critical injuries, Wayne Kinyon was able to get to his father's house, which was near the feed lots.
Wayne Kinyon lived for 18 days. He was visited by family members virtually every day.
There were no witnesses to the accident. The parties agree that K-Bar had owned the feed truck for nearly three years. They agree that the truck's emergency brake had never worked. The parties also agree that Wayne Kinyon used the truck about 80% of the time. They differ over whether Wayne Kinyon knew the emergency brake didn't work. Terry Kinyon claimed that Wayne Kinyon might not have known. K-Bar claimed that Wayne Kinyon had to know because of his heavy use of and intimate familiarity with the truck.
Terry Kinyon's theory of the case was that Wayne Kinyon saw a calf trapped in one of the feed troughs, stopped the truck, set the emergency brake, and got out to rescue the calf. The emergency brake did not hold and the truck rolled forward and struck Wayne Kinyon in the back.
K-Bar denied a trapped calf played any part in the accident. K-Bar says that Wayne Kinyon knew the emergency brake didn't work. Wayne Kinyon stopped the truck to open a gate. He simply took a chance by stopping on a slope without killing the engine and putting the truck in gear. He did not kill the engine because the battery was unreliable. Wayne Kinyon then turned back toward the truck, saw it rolling, and tried to get back into the cab. The feed chute on the driver's side of the truck then hit him and pinned him against the gate.
In their depositions, taken several months before the trial, neither Max Kinyon nor Terry Kinyon suggested that a trapped calf was the cause of
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