83 Kan. 275 | Kan. | 1910
The opinion of the court was delivered by
In this action John P. Sondegard' sued F. H. Martin for alienating the affections of his wife, and asked for damages in the sum of $5000. At the conclusion of the trial the jury returned the following verdict: “We, the jury impaneled and sworn in the above-entitled case, do, upon our oaths, find for’ the plaintiff and assess his damage at actual $1, punitive $2000.” The court was not satisfied with the form of the verdict, and directed the jury to retire again and bring in a verdict in proper form, saying to them that “in cases of this kind, if your verdict is for the defendant, it should be for him generally; if for the-
The course of the proceedings strongly indicate, and the court is inclined to'believe, that when the jury retired a second time and undertook to correct the verdict they obtained their result by simply adding the amounts previously found by them as actual and exemplary damages. If this were clearly shown by special findings which had been accepted and approved by the trial court the special findings would control, and judgment would be ordered for appellee in the sum of $1 notwithstanding the second verdict. It is clear that where the injury for which the action is brought is merely nomi
The two verdicts are clearly inconsistent, and it would appear from the action of the jury that they must have inferred from the instruction of the court to bring in a general verdict for a lump sum that they were only required to add together and return the items, of damages which they had already found. For that-reason the second verdict can not be upheld. Nor can j udgment be entered on the first verdict. The findings, in the first were never accepted or approved by the trial court and the' appellee had no opportunity to test, their validity. The jury may not have had a proper-conception of what .constituted actual or exemplary damages. It does not appear that exemplary damages, were asked for by the appellee, nor that the jury were instructed as to the nature of exemplary damages or what would constitute a basis for such damages. The abstract does not contain either the instructions or the testimony.
The obj ection to the admission of the testimony is not deemed to be substantial, but for the error in the verdict the case will be reversed and the cause remanded for a new trial.