Francis v. Brock

80 Kan. 100 | Kan. | 1909

The opinion of the court was delivered by

Graves, J.:

Several questions. have been presented' by the plaintiffs in error, but in the view we have taken. one only need be considered. It is insisted that the special findings of fact returned by the jury relating to the amount of damages awarded to the plaintiff are inconsistent with each other and irreconcilable with the general verdict, and therefore will not sustain a .judgment for any amount. In our view, this objection is well taken. By the special questions presented to the jury the injuries sustained by the plaintiff were classified as those which were “permanent” and those “not permanent.” This classification of course includes all the injuries which she received and all for which she could recover damages. In answer to these ■questions the jury allowed the plaintiff the sum of $2000 for “permanent” injuries, and the further sum •of $100 for injuries “not permanent”; the sum of $2100 was, therefore, the limit of her recovery for all the injuries sustained. The jury, however, returned a general verdict for $5000, being $2900 in excess of the aggregate awarded for injuries “permanent” and those “not permanent.” This additional .sum of $2900 is ; shown by the special findings to have been-awarded for items of injury which were necessarily included in the ■ amount of $2100 before mentioned. The two amounts, $2100 and $2900, aggregate the amount of the general verdict. It is apparent, therefore, that the damages awarded in the special findings of fact must be duplicated in the amount found by the general verdict.

The injuries to the plaintiff’s head, neck, back, leg, -and those received internally, while serious enough, perhaps, to merit the award of damages given, were probably not permanent; and had the jury allowed the sum of $3000 for injuries “not permanent” the findings of fact and the general verdict would have been more nearly harmonious. It is impossible to make the findings harmonize or to ascertain from them with certainty what the jury intended. It seems probable, however, that the intention was to award the plaintiff the sum of $5000 in- the aggregate, and iri distributing that amount among the various items included in the special questions the importance of the words “permanent” and “not permanent,” as applied to the char-acter of the injuries, was overlooked. We can not, however, act upon surmises or probabilities as to what the jury intended. They have spoken, and we are bound by their language.

The purpose of special findings of fact is to ascertain the considerations in detail upon which 'the general verdict rests, and unless they are consistent and intelligible the verdict can not stand. (Railway Co. v. Bricker, 61 Kan. 224; Kansas City v. Brady, 53 Kan. 512; A. T. & S. F. Rld. Co. v. Woodcock, 42 Kan. 344; Aultman v. Mickey, 41 Kan. 348; A. T. & S. F. Rld. Co. v. Brown, 33 Kan. 757, 760; Bank v. Miller, 59 Kan. 743, 750; Shoemaker v. St. L. & S. F. Rly. Co., 30 Kan. 359.)

It is not surprising that the jury should be misled by the special questions here given; they are well calculated to produce such a result. A jury should not be required to answer questions so formulated that finely drawn distinctions or technical constructions are neces■sary to a clear understanding of them. Courts should be careful to see that no questions are submitted which ■can not be easily understood and the purport of the answers to which may not readily be perceived. When necessary, instructions should be given which will fully ■explain the questions submitted, so that errors and misconceptions may be avoided. We can not criticize ‘the court in this case, as no change or modification of the questions was suggested, nor were explanatory instructions requested. Indeed, there is nothing in the record to indicate that any of the parties connected with the trial anticipated the result which followed. Special questions, when numerous and not carefully prepared, are liable to confuse and mislead a jury, and therefore when they are submitted they should be as •direct and clear as possible.

The jury in'this case considered the various elements of damages sustained by the plaintiff, and fixed the amount as to each item separately. Perhaps no jury would materially change the aggregate of these amounts. Apparently they were fixed after a fair and dispassionate consideration of the inj uries' sustained, without regard to their effect upon the final result. While in cases of this character the court will not, upon review, determine the amount of the judgment which ought to be entered, it may, when the several awards named in the special findings show that a fairly reasonable amount has been allowed for all damages sustained, tender to the plaintiff an option to accept judgment for such amount or a new trial. (Broquet v. Tripp, 36 Kan. 700.) We have, therefore, concluded to give an opportunity to adjust the controversy in this manner without awarding a new trial absolutely. The jury allowed $2000 damages for the injuries sustained which were permanent, the sum of $100 for those that were not permanent, and for the mental and physical pain the sum of $500; making an aggregate of $2600. We assume that the jury did not regard pain, either mental or physical, the same as an injury like a contusion, sprained ankle or other visible hurt, and, therefore, add the amount allowed for these to the sum of' $2100, which amounts, aggregating $2600, constitute the sum to which under the findings of fact the plaintiff is probably entitled. If the plaintiff will consent, to accept a judgment for this amount, the court will set aside the present judgment and enter one for that amount upon such consent; otherwise, a new trial will be granted.