Anderson v. Pierce, 64 P. 633

Anderson v. Pierce

64 P. 633 | Kan. | 1901

The opinion of the court was delivered by

Pollock, J.:

The evidence is not contained in the record. The general verdict of the jury found all the facts essential to a recovery in favor of the plaintiff and entitled the plaintiff to judgment, unless the special findings made are inconsistent with the - general verdict and plaintiff’s right of recovery. The sole question presented in this case is, Did the trial court err in granting defendants judgment on the special findings? All of the parties insist that these special findings are consistent with one another, counsel for plaintiff in error contending that they are not only consistent with one another but are consistent *759with the general finding; and counsel for defendants in error, that they are consistent with one another but inconsistent with the general verdict and destructive of plaintiff’s right of recovery, and entitle them to the judgment rendered.

Where a general verdict is returned for the plaintiff, in construing special findings of fact returned by the jury and supported by the evidence, the following rules are deducible from the decisions of this court: (1) It is the duty of the trial court to harmonize the same with one another and the general verdict, if possible; (2) if found to be inconsistent with one another, or consistent with one another and inconsistent with the general finding, but not destructive of plaintiff’s right of recovery, the court should order a new trial; (3) if consistent with one another and both inconsistent with the general finding and destructive of plaintiff’s right of recovery, judgment should be entered thereon for defendant. (St. L. & S. F. Rly. Co. v. Ritz, 33 Kan. 404, 6 Pac. 533; U. P. Rly. Co. v. Fray, 43 id. 750, 33 Pac. 739; Kansas City v. Slangstrom, 53 id. 431, 36 Pac. 706.)

In this case we do not agree with the construction placed on these findings by counsel for the parties or by the trial court. Every presumption is in favor of the general verdict. The special findings must overthrow it or it must stand. In the absence of the evidence from the record, we must assume all of these findings to have support in the evidence and all must be construed together. The particular and, to our minds, irreconcilable conflict arises on findings Nos. 15 and 16. An adroit argument is made in the attempt to harmonize them, but the distinction made is too highly refined for practical purposes. How a reasonably bright, intelligent and experienced boy *760of fourteen years could have the mental capacity to comprehend and avoid the danger of meddling with this door, apparently in a reasonably secure position, although in fact dangerous, and yet be incapable of seeing and appreciating the danger of meddling with it, is beyond our comprehension.

We are of the opinion that the special findings are inconsistent, and incapable of being harmonized with either the general finding or with one another, and that the same are not conclusive of the plaintiff's right of recovery. If the improvements being made upon the property were by the direction and for the benefit of T. A. Pierce, the fact that his deed to the property was in legal effect but a mortgage, or that he occupied the property only as a mortgagee in possession, would seem immaterial.

Upon the special findings as returned by the jury, the judgment must be reversed, with the direction that a new trial be awarded. It is so ordered.