8 P.2d 359 | Kan. | 1932
The opinion of the court was delivered by
This is an action for damages for wheat burned by a fire caused by the railroad company. The jury returned a general verdict for plaintiff and answered special questions, from which a judgment for plaintiff larger than the general verdict could be computed. Plaintiff moved for judgment on the answers to the special questions. This motion was sustained. Defendant has appealed.
Plaintiff filed a motion for judgment on the special findings. On the hearing of that motion it was brought out that there had been conflicting- evidence as to the cost of harvesting the wheat with a combine and hauling it to the market at Healy. No special questions had been asked the jury on those points. It was suggested that a new trial would be necessary to determine those questions. Plaintiff then, in open court, consented and agreed that the court should use for those items of expense the largest figures testified to by any witness. With that admission the court deemed a new trial unnecessary, and from those figures, and the answers to the special questions, computed the sum due plaintiff to be $573.35, and rendered judgment accordingly.
Appellant argues that plaintiff was not the real party in interest; that, having been compensated for his loss by the insurance company, that company became subrogated to the rights of plaintiff and could alone maintain the action as the real party in interest, citing Railroad Co. v. Insurance Co., 59 Kan. 432, 53 Pac. 459. The rules of law stated in that case, so far as applicable here, are that if the owner of property destroyed by fire, caused by the negli
“Where a loss by fire is occasioned to insured property by a wrongdoer and the loss exceeds the amount of insurance, the insured owner is the only proper party to recover damages from the wrongdoer.” (Syi. f 1.)
To the same effect is Smith v. United Warehouse Co., 123 Kan. 515, 255 Pac. 1115. Here the jury specifically found, in answer to a special question, that plaintiff had not been fully compensated for his loss by the insurance company, hence he was the real party in interest and authorized to maintain this action.
Appellant argues: What was the difference between the sum paid plaintiff by the insurance company and his total loss? That was not the question to be tried, nor was it the question actually tried.
Appellant complains of the action of the trial court in rendering judgment for plaintiff in a sum greater than the general verdict, because of the answers to the special questions, especially in view of the fact that the jury had not been asked special questions on some of the controverted facts. The argument is not well taken. Our statute (R. S. 60-2918) provides, when the special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court may give judgment accordingly. This court has followed this statute in so many decisions that it is unnecessary to
But appellant complains that the court determined a controverted question of fact which should have been left to the jury. That was determined most favorably to appellant, and upon the consent and agreement of plaintiff in open court. It amounts to the same as though plaintiff had pleaded in his petition that the cost of harvesting and delivering the crop was a figure or sum which was the greatest amount shown by the evidence. By reason of plaintiff’s agreement in open court on that matter, it was no longer a controverted question. It was perfectly proper for the court to regard it as an admitted fact and to end the litigation by entering the appropriate judgment. Regarding the expense of harvesting and marketing as an admitted fact, following the special findings of the jury as to the acreage, yield per acre and price per bushel, and making allowance for one-fourth going to the landlord, which plaintiff never claimed, it is not contended that the computation of the court was erroneous.
We find no error in the record. The judgment of the court below is affirmed.