Bott v. Wendler

• Decision Date: 12 April 1969
• Docket Number: No. 45388,45388
• Citation: 453 P.2d 100,203 Kan. 212
• Parties: Ruby A. BOTT, Individually and as Administratrix of the Estate of Henry W. Bott, Deceased, Appellants, v. Arthur WENDLER and Mrs. Arthur Wendler, Appellees.
• Court: Kansas Supreme Court

Page 100

453 P.2d 100

203 Kan. 212

Ruby A. BOTT, Individually and as Administratrix of the Estate of Henry W. Bott, Deceased, Appellants, v. Arthur WENDLER and Mrs. Arthur Wendler, Appellees.

No. 45388.

Supreme Court of Kansas.

April 12, 1969.

Syllabus by the Court

1. Special findings of a jury in returning a special verdict pursuant to K.S.A. 60-249(a) are to be liberally construed on appeal and interpreted in the light of the testimony with the view of ascertaining their intended meaning.

2. A special verdict authorized by K.S.A. 60-249(a) is a special written finding upon each issue of fact raised by the pleadings, the pretrial order, and the evidence.

3. Where a case is submitted for special verdict, the district court has discretionary supervision of the nature, scope and form of the questions to be put to the jury, and only ultimate fact questions raised by the pleadings, the pretrial order, and the evidence, which are important to the final determination of the controversy, should be submitted. It is not proper to submit questions involving evidentiary facts.

4. Where a district court requires a special verdict and neglects to include an issue of fact raised by the pleadings, the pretrial order, and the evidence, a party waives his right to a jury trial on the issue unless he demands its submission before the jury retires. (K.S.A. 60-249(a).) The rule applies where a party has requested submission of a particular issue, and he will be held to have waived his right to trial by jury as to it unless he objects to the failure to submit it before the jury retires.

5. A party may not assign as error on the part of the district court its failure to give a requested instruction unless after the request is denied and before the jury retires to consider its verdict, he states distinctly the matter to which he objects and the grounds of his objection. (K.S.A. 60-251(a).)

6. The supreme court frowns on the practice of using one means or another to suggest to a jury that the defendant is covered by liability insurance.

7. The record in an action to recover damages for wrongful death and for personal injuries sustained in an automobile collision is examined, and it is held: The district court did not err (1) in overruling the defendants' motion for a mistrial, and various post-trial motions filed by them including their motion for a new trial on the grounds of surprise and newly discovered evidence; (2) in concluding there was no designed and persistent effort on the part of counsel for the plaintiffs to cause the jury to believe the defendants were covered by liability insurance; (3) in concluding the jury's question to the court concerning liability insurance was not motivated by any reference to insurance at the trial, and (4) in making various evidentiary ruling during the trial.

Evart Mills, McPherson, argued the cause, and Michael T. Mills and William S. Mills, McPherson, Norbert R. Dreiling, Dennis L. Bieker, Hays, and John J. Stang, LaCrosse, with him on brief for appellants.

H. Lee Turner, Great Bend, argued the cause, and J. Eugene Balloun and Max E. Eberhart, Great Bend, with him on brief for appellees.

FATZER, Justice.

This was an action for damages arising out of a collision between two automobiles. Ruby A. Bott sued Arthur Wendler, case No. 4365, for the wrongful death of her husband Henry W. Bott, the driver of one of the automobiles. Arthur Wendler, the driver of the other automobile, sued the estate of Henry W. Bott, case No. 4366, for the severe injuries he received in the collision. Artilea Wendler, the fifteen-year-old daughter of Arthur Wendler was also killed in the collision, and Mrs. Arthur Wendler sued the estate of Henry W. Bott, case, No. 4367, for the wrongful death of their daughter.

Following a trial to a jury on all the issues designated in the pretrial order, which commenced on May 22, 1967, and ended on May 26, 1967, judgment was entered in favor of Arthur Wendler for his injuries and for Mrs. Wendler for the wrongful death of Artilea Wendler. Ruby A. Bott, individually and as administratrix of the estate of Henry W. Bott, has appealed. As they were designated in the district court, the Wendlers are here referred to as the plaintiffs and the Botts as the defendants.

The district court's order following a pretrial conference was comprehensive. It found there were common questions of law and fact in each of the three cases and ordered the cases consolidated for trial pursuant to K.S.A. 60-242. The order provided that the trial be limited to the issues contained in the order, and the charges of negligence and contributory negligence made by the parties in their pleadings were stated as issues to be determined, as follows:

Ruby R. Bott's grounds of negligence or contributory negligence against Wendler were that he failed: to drive his vehicle upon the right half of the roadway; to keep a proper lookout at all times; to take proper action to avoid an accident; to properly control his vehicle, and to yield the right of way to an oncoming vehicle in its proper lane of travel. Her grounds of contributory negligence against Artilea Wendler were that she failed: to keep a proper lookout; to warn Wendler to drive upon the right half of the roadway, and permitted herself to be transported down the middle of the roadway without objection.

Arthur Wendler and Mrs. Wendler's grounds of negligence, and Wendler's grounds of contributory negligence, against Henry Bott were that he failed: to drive his vehicle upon the right half of the roadway; to keep a proper lookout at all times; to take proper action to avoid an accident; to properly control his vehicle, and to yield the right of way to an oncoming vehicle in its proper lane of traffic.

The order further directed that all pictures taken by the parties be submitted to counsel for opposing parties for identification, and they were admitted into evidence subject to objection only to materiality or relevance. It further directed that copies of all statements given by or taken on behalf of Wendler other than those taken by his counsel should be furnished forthwith to counsel for Ruby Bott. The parties announced that all known witnesses had been set forth in their answers to interrogatories, and it was ordered that any witnesses other than those named should be furnished to counsel for opposing parties twenty days prior to trial, and those not so furnished would not be permitted to testify except on rebuttal or for impeachment purposes. It was further ordered that all requested instructions should be submitted at least ten days prior to the trial; that each plaintiff and defendant had the right to exercise three pre-emptory challenges in each case and that there would be eighteen pre-emptory challenges permitted. It was stipulated that $1,819.50 damage was done to the Wendler automobile and $1,500 damage was done to the Bott automobile.

The collision of the two automobiles occurred at about 9:00 or 9:15 a. m., on November 11, 1965, on a north-south gravel county road approximately two miles east and one and a quarter miles south of Alexander, Rush County, Kansas. It was a damp and misty morning. Bott was alone in his 1964 Chevrolet automobile driving in a northerly direction. Wendler was driving his 1965 Ford in a southerly direction; his fifteen-year-old daughter, Artilea, was riding in the back seat. The automobiles collided nearly head on at the crest of a hill in front of the farm home of Clarence Scheuerman at a point where his driveway goes into his yard. The Scheuerman house is located 50 feet west of the county road. As a result of the collision, Bott and Artilea Wendler were killed and Arthur Wendler suffered physical injuries.

Wendler farms, drives a school bus, and maintains roads for the Rush County highway department. He was driving upon a road he last serviced a couple of weeks before the accident. Where the collision occurred, the highway was 27 feet wide from shoulder to shoulder. However, the traveled portion of the road was narrowed to 23 feet by a low windrow of loose gravel pushed there by the grader blade, which was approximately four feet wide and reached to the edge of the grass on the east side of the road.

Scheuerman was a near eyewitness to the accident. He testified he saw the two automobiles approaching each other; that as they neared the point of collision, Wendler was driving on his proper side of the road, or in the southbound lane of traffic, at approximately 50 to 55 miles per hour, and Bott was driving down the center of the road at approximately 35 to 40 miles per hour.

Wendler testified that as he approached the point of collision, he was driving in his lane of traffic about two feet from the west edge of the road; that he noticed a car approaching at approximately the same speed he was driving, when he thought he was about 120 feet north of the impact point; that the car had just come up over a knoll; that he set his brakes and the car kept coming toward him; that it was Bott and he was on Wendler's side of the road; that Bott farmed the land to his right, or east of the highway, and that Bott was looking at the wheat on the land he farmed. The next thing Wendler could remember was his birthday two weeks later.

The evidence was that Wendler's car laid down skid marks, described by various witnesses from 40 to 60 feet, which tended to veer to the right in his lane of traffic; that the skid marks of his right tires were approximately three feet from the edge of grass on the west side of the road; that the skid marks from his left tires were west of the center line of the highway; that the traveled portion of the southbound traffic lane of a roadway 23 feet wide would be eleven feet six inches, and that the left side of Wendler's car would be two and a half feet, or thereabouts, west of the center line; that Bott's car made no skid marks; that when Wendler's car was moved, the bottom of...