100 Kan. 616 | Kan. | 1917
The opinion of the court was delivered by
W. E. Roll was injured on May 26, 1915, while in the employ of the Monarch Cement Company, and recovered a lump sum judgment for $1838.39, under the workmen’s compensation act, from which this appeal is taken. A payment of $411.13 was shown, and the judgment was therefore based upon the allowance of $2249.52 (the defendant’s brief says $2249.57) as the plaintiff’s total compensation. A verdict was returned December 9, 1916. A motion for a new trial was filed on December 11, but was withdrawn on December 23. On December 13 the defendant filed a motion- to set aside the general verdict because it was not based on the evidence, and was inconsistént with the special findings, and to enter judgment upon the findings. The part of this motion relating to the general verdict might from its language be regarded as
“1st. For what period of time, in months, has the plaintiff been totally incapacitated from performing labor? Answer: 18 months.
“2d. Is the plaintiff now totally incapacitated from performing labor? Answer: Yes. '
“3d. If you answer the preceding question No. 2 in the affirmative, then, state whether such total incapacity is permanent. Answer: No.
“4th. If you answer either of questions Nos. 2 or 3 in the negative, then, state whether the plaintiff has been and now is partially incapacitated from performing labor in some suitable business or employment. Answer: No.
“5th. What was the weekly average wage the plaintiff was receiving for the fifty-two (52)' weeks prior to the accident in which he was injured? Answer: $12.36.
“6th. ■ What average wage will plaintiff be most probably able to earn in some suitable business or employment, since the injury? Answer: Don’t know.”
It seems probable that in saying they did not know what average wage the plaintiff would be able to earn in some suitable employment since the injury the jury meant that they were not able to estimate what his earning capacity would be at such time in the future as his disability should be reduced from total to partial. That is a reasonable construction which would harmonize with the other findings. Possibly the finding might be held to mean that the plaintiff would not be able to earn anything. But in any event it does not require a construction that would vitiate the verdict. Mere indefiniteness would of course not have that effect.
The judgment is affirmed.