139 P.2d 859 | Kan. | 1943
The opinion of the court was delivered by
This was an action to recover damages for wrongful death suffered in an automobile accident and for injuries to decedent’s car which was being driven by her at the time of such accident.
Certain facts, as to which the evidence disclosed no serious controversy, were as follows: On August 18, 1941, Mrs. Dolpha Sams, the deceased, who lived with her husband in Denver, Colo., and was the mother of three adult children, all of whom were married, was driving her LaSalle car, the front part of which was 6 feet and 2 inches wide and the rear 6 feet and 4 inches wide, from her home
The evidence as to how the collision occurred was contradictory and cannot be reconciled. Briefly, since it is not necessary to relate it in detail, it can be stated, although there was testimony to the contrary, there was some evidence to show the following: The drivers of both vehicles immediately prior to reaching the bridge were on their proper side of the road and each attempted to cross the bridge while traveling at a speed of approximately 55 miles per hour. Immediately prior to reaching the bridge the driver of the transport swung over to the south of the center line of the bridge and at the time of the collision the south side of his truck was 6 feet and 6 inches from the south banister of the bridge. The left front wheel of the LaSalle automobile came into contact with the rear dual wheel of the tractor portion of the transport, thereby causing the wreck which resulted in the death of Mrs. Sams and severe injury to both vehicles. The point of impact, with reference to the length of the bridge, was 13 feet and 5 inches east of the west end thereof.
On this evidence, elaborated as to details by the testimony of divers witnesses, the jury answered special questions and returned a verdict for plaintiffs in the sum of $5,675, on which after the filing and overruling of certain post-trial motions to which reference will be made, jugment was rendered against defendant, Commercial Standard Insurance Company. The appeal here is from that judgment.
One of appellant’s specifications of error is the refusal of the trial court to submit special questions to the jury as requested by it.
Another of appellant’s specifications of error is the overruling of its motion to set aside special findings of the jury. Appellant strenuously contends that the answers returned by the jury to such questions were not only unsupported by the evidence but were in such form as to clearly indicate capricious and unfair conduct of the jury in so answering them. This objection is directed against eleven of the findings returned in answer to the fifteen special questions submitted and to here quote such special questions and discuss in detail each of such answers would require more time and space, in our opinion, than this objection merits. We have, however, carefully examined the record and our examination discloses all of the answers objected to because of the lack of any evidence are supported by some evidence, although contradicted, which the jury had a right to believe. As to the other questions objected to by appellant as evasive, untruthful and contradictory, we have concluded, even though it be conceded the jury might properly have returned answers which would have been more satisfactory in the light of the testimony, such answers when construed together were not so contradictory as to require them to be set aside and do not evidence such an unfair attitude as to require 'that action. Jurors who are not versed in the law cannot be held to the strict rule as to the use of language to which a more highly trained' person would be held and courts should not set aside answers to special questions on the basis of capricious and unfair conduct of the jury unless they are absolutely convinced such answers reflect that attitude. This is particularly true, on appeal, where the trial court, which has had an opportunity to observe the demeanor and conduct of the jury, has passed upon and approved the special findings. This court has held that if there is any inconsistency in answers to special questions it is the duty of the court to harmonize them where it is reason
Other specifications of error relate to failure of the court to give certain instructions requested by appellant and to instructions given and alleged to be erroneous. We first direct our attention to three requested instructions, each of which was refused, having carefully examined and compared them with the instructions submitted to the jury. This court has repeatedly held it is not error to refuse to give requested instructions, where the instructions given by the trial
We next give our attention to a contention strenuously urged by appellant and entitled to consideration by reason of specifications of error charging the court erred in giving erroneous instructions to the jury and in overruling its motion for a new trial, one of the grounds of which was erroneous instructions of the court. It is claimed, and while the parties are not in accord on the subject must be conceded, since we have before us, after having given appellant permission to supplement its abstract, a certified copy of the proceedings had in the district court, that after the appellant’s counsel had concluded his argument to the jury) the trial court, without having submitted the same to counsel on either side and without having given them a reasonable time to suggest modifications thereof, gave the jury an instruction which is designated as instruction No. 27 and which reads as follows:
“You are instructed that if the truck driven by the driver, Boswell, was on his right side or north side of the road just before he came upon the bridge and Mrs. Sams saw it there then she had a right to presume that he would stay on his right side of the bridge and she would not be guilty of contributory negligence in driving upon the bridge on her right side of the bridge.”
Appellant insists that the giving of instruction No. 27 was an erroneous statement of law as applied to the facts of this case, and given as it was, at the conclusion of the defendant’s argument to the jury, was devastating and ruinous to its defense of contributory negligence, since its effect was to absolve Mrs. Sams of all negligence prior to the time she observed the transport entering the'bridge.
It should be here noted that our 'examination of the instructions given prior to the argument discloses they were proper and fairly stated the obligations and duties resting upon the drivers of each of the • vehicles with respect to their proper operation upon the highways and the duties and obligations resting upon each of them with respect to other persons who were driving upon such highways
Appellees challenge the right of appellant to raise any question as to instruction 27, on the ground no objection was made by appellant to such instruction at the time it was given and insist such instruction contained a correct statement of law as approved by this court in Dick’s Transfer Co. v. Miller, 154 Kan. 574, 578, 119 P. 2d 454. We pass for the moment appellees’ challenge of the right of appellant to now object to the instruction so that we may dispose of their contention such instruction contained a correct statement of the law as approved by this court. In the case cited by appellant the court was not considering instructions but a motion for judgment non obstante veredicto. All we decided in that case on the question referred to by appellees was that under the rules applicable to the determination of such a motion answers to certain special questions did not as a matter of law find the plaintiff was guilty of contributory negligence and entitle the defendant to judgment notwithstanding the verdict. That decision is in no sense authority for appellees’ contention that instruction 27, standing alone, was a correct statement of the law applicable to a situation such as was referred to therein.
We turn now to appellees’ challenge of the right of appellant to object to instruction 27. That the statute contemplates the submission of instructions to counsel for their consideration before submission of a case to a jury and the giving of such instructions before argument is clearly evidenced by G. S. 1935, 60-2909 (5), (7). However, it has been held, notwithstanding earlier cases to the contrary (Foster v. Turner, 31 Kan. 58,1 Pac. 145) that the district court has a large discretion in the matter of giving additional instructions after the jury has retired for deliberation and that only in the event of abuse, resulting in prejudice, will an exercise of that discretion be ground for reversal. (Bray v. Railway Co. 111 Kan. 60, 205 Pac. 1112; Carter v. Becker, 69 Kan. 524, 77 Pac. 264.) Although this is the rule with respect to instructions after the jury has retired, it is interesting to note that Bray v. Railway Co., supra, which expressly overruled the third paragraph of the syllabus of the opinion to the contrary in Foster v. Turner, supra, did not disturb the rule of law announced in the second paragraph of the syllabus of that case and we now have at least two early decisions
In our consideration of appellees’ position that instruction 27 cannot be reviewed it must be conceded the general rule is that where no objection is made to the giving of an instruction during the trial and no request was made for its modification or clarification and such instruction -is not clearly erroneous a litigant cannot be heard to complain on appeal. (Montague v. Burgerhoff, 152 Kan. 124, 128, 102 P. 2d 1031; Lukens v. First National Bank, 151 Kan. 937, 101 P. 2d 914; Hogan v. Santa Fe Trail Transportation Co., 148 Kan. 720, 725, 85 P. 2d 28; Jones v. A. T. & S. F. Rly. Co., 148 Kan. 686, 695, 85 P. 2d 15; Lambert v. Rhea, 134 Kan. 10, 4 P. 2d 419, and Foley v. Crawford, 125 Kan. 252, 264 Pac. 59.) Nor do we think, as contended by appellant, that any language in our decisions in Sowers v. Wells, 154 Kan. 134, 136, 114 P. 2d 828; Abramson v. Wolf, 138 Kan. 856, 859, 28 P. 2d 975, and Burns v. Hunter, 126 Kan. 736, 737, 271 Pac. 398, can be construed to mean that a litigant who fails to object to instructions of the character referred to in the cases heretofore cited can for the first time make his objections on
Our consideration of appellees’ position on the right to appellate review of the instruction convinces us it cannot be sustained notwithstanding the existence of the general rule to which they refer and which we have here discussed. The trouble with their position is the factual situation does not permit the application of that rule. In fact, most of the decisions cited do not contemplate such a situation. They deal with the position of a litigant in cases where the instructions were given to the jury before argument and after they have been submitted to his counsel for inspection. The language in G. SL 1935, 60-2909 (7) which reads: “After the instructions have been given to the jury, the case may be argued,” must mean something, else it would have been omitted from the code of civil procedure. We think one construction which must be placed upon that language without for a moment minimizing the force of the rule is, where an instruction is submitted' at the close of an argument, suddenly and without opportunity of inspection, where counsel has not had a chance to formulate a proper objection, and where the situation is such that any objection he makes might be misconstrued by the jury to the prejudice of his client, that the same formality contemplated by the rule in cases where counsel have had an opportunity to object after submission of instructions is not required and any statement tending to indicate an objection to the instruction so given is sufficient to insure counsel the right of appellate review if on the motion for new trial his objection to the instruction, or instructions, so made is called to the attention of the trial court. Here, counsel for appellant, after the giving of such an instruction and when the trial court, basing our statement on the frank admission of such counsel, had given him an opportunity to discuss the instruction just submitted, made the statement, “I finished my argument.” We consider this statement under the existing circumstances as tantamount to the making of the objection contemplated by the rule and when later renewed on a motion for new trial was sufficient to obtain
We pass now to consideration of the language of instruction 27 as heretofore quoted verbatim. What was its effect in the instant case under the circumstances and conditions prevailing at the time it was given?
As heretofore stated, the other instructions which had been given before argument appear to have fairly stated the factual situation disclosed by the evidence and the law applicable thereto. This instruction told the jury that Mrs. Sams would not be guilty of contributory negligence in driving upon the bridge upon her right side if just before the driver of the transport came upon the bridge the transport was on its right side of the road and she saw it there. Under the circumstances, it unduly emphasized one factual situation to the exclusion of others. For all practical purposes it wiped out and nullified instructions theretofore given which set forth the duties and obligations resting upon Mrs. Sams as the driver of a car upon the highway under existing conditions. Its language was inconsistent and could not be harmonized with the language used in other instructions. It had the effect of absolving the decedent of all blame prior to the time she observed the transport entering the bridge. It, in fact, took away from appellant the defense of contributory negligence and practically told the jury the defendant had no defense. In announcing these conclusions we are not unmindful of the fact the instructions given in advance of the argument contained the admonition that all the instructions should be considered as a whole and no one instruction should be considered separately and apart from the others, but the record fails to disclose this admonition was given when instruction 27 was submitted. We •are also mindful that counsel for appellant made mention of the fact the jury had theretofore been so instructed. But the statement of counsel as an adversary was not the statement of the court and could not serve as a substitute. Even so, if the admonition had been given, it would not have been sufficient to cure the error in the instruction as given. In a somewhat extended examination of the decisions for the purpose of finding a precedent to govern a situation such as confronts us on this appeal, counsel for the parties having failed to cite one, we find one case which we think is determinative and several others which are indicative of the correctness of the rule
“Where the court in an earlier general instruction abstractly stated the correct rule of law, but in a later one applicable to the facts in this particular case undertook to group and state all the elements necessary to a recovery against the principal, leaving out an essential element,' the earlier general instruction in which the correct rule was abstractly stated, did not operate to cure the inaccurate and incomplete one given at the end of the charge.” (Syl.lt 2.)
And in the opinion said:
“Plaintiff contends that the defect in the eleventh instruction was cured by the statements made in earlier instructions. It is true, as plaintiff contends, that all of the law of a case need not be stated in a single instruction, and if an omission in an instruction is supplied in others so that all taken together fully and consistently present the law applicable to the issues the jury are not likely to be misled. While the court in the seventh, ninth and tenth instructions recognized that the master would not be liable for an assault or injury inflicted by an agent by authority of the master unless expressly conferred or fairly implied from the nature and incidents of the employment, it will be observed that the court was there dealing with an abstract principle. In the latest instruction the court was treating the case in the concrete, the particular case in hand, and had undertaken to state all the elements necessary to' a recovery against the defendant. In that instruction the jury were told that if Earl Harris was in the employ of the defendant, and was authorized to collect the check, and committed the assault and.battery upon the plaintiff as a means to enforce the payment by plaintiff of the check, and further found that plaintiff was injured thereby, then the defendant would be liable. That was the last statement of the court on the ground of liability, and since the court undertook to group in this instruction all the elements necessary to a recovery, it is plain that the jury may have been misled. There was no question but what Harris was in the employ of the defendant and authorized to collect the check, no question but that his assault on the plaintiff caused injury, and under the last instruction the jury could find against the defendant regardless of the authority of the defendant to use force or violence in enforcing payment. The rule stated in that instruction was inconsistent with that abstractly stated in the earlier ones, and when the court returned to the subject at the end of the charge, and gave an additional .and different instruction, the jury may have inferred that the court intended as a last word to qualify the general instructions previously given. Again, the instructions being materially in conflict, the jury must have been at sea as to which rule they should follow, and no one can say which rule was applied in making their findings. It was not unnatural that they should conclude that the specific instruction dealing with the facts of this particular case should govern rather than the general instruction. In speaking of the claim that an*291 erroneous instruction may be cured by another which is correct, it has been said:
“ ‘But while an instruction which is inaccurate or incomplete, may be cured by subsequently supplying the defect or accurately stating the law, yet if it is erroneous in that it states the wrong rule by which the jury are to be governed, it is not cured by another instruction stating the right rule as it is impossible to tell by which rule the jury was actually controlled in reaching its verdict.’ (14 R. C. L. 813.)” (p. 379.)
See, also, Schick v. Warren, 82 Kan. 90, 107 Pac. 536, which is applicable to certain phases of the situation here discussed.
In New York Life Ins. Co. v. Hunter, 32 F. 2d 173, it was held:
“If special instructions authorizing verdict for plaintiff if certain facts were found in her favor in action on life insurance policy were erroneous, prejudice would not be removed by general instruction given at outset which was qualified by such special instructions.” (Syl. IT 1.)
To the same effect is Macklin v. Construction Co., 326 Mo. 38, 31 S. W. 2d 14:
“Instruction omitting necessary element is erroneous, and cannot be cured by including omitted elements in other instructions, unless such instructions are properly referred to.” (Headnote 16.)
Instruction 27 as given was out of harmony with the other instructions, and resulted in giving emphasis to it without regard for the others to the probable disadvantage of defendant and in our opinion resulted in an unfair trial. Standing alone, as we conclude it did, when given at the time and under the circumstances here related it was erroneous and its submission to the jury under such conditions was error and required the granting of a new trial.
Appellant contends the undisputed evidence convicts the decedent of contributory negligence as a matter of law and requires a directed judgment in its favor. Under all the evidence and circumstances of this case we are not convinced that contention is sound. (Dick’s Transfer Co. v. Miller, supra; Duncan v. Branson, 153 Kan. 344, 110 P. 2d 789; Meneley v. Montgomery, 145 Kan. 109, 64 P. 2d 550, and Balano v. Nofziger, 137 Kan. 513, 21 P. 2d 896.)
The judgment appealed from is reversed and the cause is remanded with directions to grant a new trial.