Carmichael v. Bailey's Estate
| Decision Date | 08 November 1947 |
| Docket Number | 36898. |
| Parties | CARMICHAEL v. BAILEY'S ESTATE. |
| Court | Kansas Supreme Court |
Appeal from District Court, Douglas County; Hugh Means, Judge.
Action by Ada Carmichael against the estate of Glenn Bailey deceased, for injuries suffered when struck by taxicab. From a judgment sustaining defendant's motion for judgment on special findings notwithstanding general verdict, plaintiff appeals.
Judgment set aside and case remanded.
Syllabus by the Court
Where in a tort action, the jury returns a general verdict together with answers to special questions submitted, and one of the parties files and presents a motion for a new trial and seeks a ruling thereon, it is the duty of a trial court to rule upon such motion, and to do so before considering and ruling upon a motion by the opposing party for judgment on the special findings notwithstanding the general verdict.
John J Riling, of Lawrence (Edward T. Riling, of Lawrence, on the brief), for appellant.
Henry H. Asher, of Lawrence (Clarence M. Gorrill and Alan F. Asher both of Lawrence, on the brief), for appellee.
This was an action to recover damages for personal injuries alleged to have been caused by the negligent operation of an automobile. The jury brought in a general verdict for the plaintiff and answered special questions. A motion by defendant for judgment on the special findings notwithstanding the general verdict was sustained and the plaintiff appeals. In view of our conclusion presently to be stated as to the manner in which this appeal should be disposed of, a brief summary of the situation presented will suffice.
The appellant, Ada Carmichael, while crossing Massachusetts Avenue in the city of Lawrence at about 11:30 p. m., was struck and severely injured by a taxicab operated by an employee of Glenn Bailey, since deceased. The acts of negligence alleged in the petition need not be recited. Jury trial was had and a general verdict returned for the plaintiff in the amount of $1318.85. In response to special questions submitted, the jury also returned eleven findings of fact. The plaintiff, being dissatisfied with the amount of recovery, filed a motion for a new trial; first, on the one issue as to the amount of damages; and, second, if not granted on that one issue, then for a new trial generally. There was no ruling upon the motion. The defendant's motion for judgment non obstante veredicto, which was sustained, was based upon question and answer number 11 which were as follows:
The plaintiff filed an appeal to this court both from the order sustaining the defendant's motion for judgment non obstante and 'from the judgment, decree and orders of the District Court of Douglas County, Kansas, made on the 21st day of December, 1946, wherein the court refused to pass upon plaintiff's motion for a new trial although the same was presented and argued by both plaintiff and defendant.' (Italics supplied.)
In her specifications of error, the plaintiff stresses certain of the trial court's instructions to the jury which she contends were erroneous and prejudicial. The issue covered by one or more of these instructions was argued by counsel on both sides, prior to the giving of the instructions. When the court adopted the defendant's view and gave the instructions accordingly, the plaintiff objected to the instructions. The issue was again raised and argued upon the motion for a new trial. Regardless of all this, the trial court declined to rule upon the motion for a new trial, and sustained defendant's motion for judgment on the ground that the jury's answer to question 11 convicted the plaintiff of contributory negligence which barred recovery. One paragraph of the journal entry of judgment reads:
'That the Motion of the plaintiff for a new trial in this action be and the same is not determined although reguested by plaintiff.' (Italics supplied.)
This can only be construed as a refusal to rule upon the motion for a new trial.
It is urged by appellant that the instructions, alleged to the erroneous, required the jury to answer, unfavorably to her, material questions submitted, and should be reviewed by this court.
An unusual situation is presented. We have repeatedly said that in order to secure review of trial errors--at least those from which no independent appeal will lie--a motion for a new trial is necessary. Buettinger v. Hurley, 34 Kan 585, Syl.2, 9 P. 197; Fairfield, Assignee, v. Dawson, 39 Kan. 147; Syl., 17 P. 804; Duigenan v. Claus, 46 Kan. 275, Syl. 1, 26 P. 699; State ex rel. v. Southwestern Bell Telephone Co., 115 Kan. 236, Syl. 8, 223 P. 771. Here we have such a motion, but it is said that since there was no ruling upon the motion, the matters raised by it are not here for review. In somewhat similar situations, some courts have treated a refusal to rule upon a motion for a new trial where the matters complained of have been called to the trial court's attention, as tantamount to an overruling of the motion. In some cases it has been said that the motion would be considered as overruled 'as a matter of law.' 4 C.J.S., Appeal and Error, §§ 320, 321f, 363; Larson v. Long, 73 Colo. 241, 244, 214 P. 539, 540; Lichtenstein v. L. Fish Furniture Co.,...
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