Clark v. Missouri Pac. R. Co.
| Decision Date | 05 March 1932 |
| Docket Number | 30318. |
| Citation | 8 P.2d 359,134 Kan. 769 |
| Parties | CLARK v. MISSOURI PAC. R. CO. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Where loss by fire to insured property by wrongdoer exceeds insurance, insured owner is only proper party to sue wrongdoer.
Under express terms of statute, when special findings of fact by jury are inconsistent with general verdict, former control latter (Rev. St. 1923, 60--2918).
Where party, in open court, agrees that question previously controverted is as contended for by opponent, court may rule on it as conceded.
1. Where a loss by fire is occasioned to insured property by a wrongdoer and the loss exceeds the amount of the insurance the insured owner is the only proper party to recover damages from the wrongdoer. Following Shawnee Fire Insurance Co v. Cosgrove, 85 Kan. 296, 116 P. 819, 41 L.R.A. (N. S.) 719.
2. When special findings of fact made by a jury are inconsistent with the general verdict, the former control the latter, and the court may render judgment accordingly.
3. When a party, in open court, concedes that a question, previously controverted by the pleadings or the evidence, is as contended for by the other side, it is no longer a controverted question, and the court may rule on it as conceded.
Appeal from District Court, Sedgwick County, Division No. 1; J. E Alexander, Judge.
Action by J. R. Clark against the Missouri Pacific Railroad Company. From a judgment for plaintiff, defendant appeals.
W. P. Waggener, J. M. Challiss, O. P. May, and B. P. Waggener, all of Atchison, and Arnold C. Todd, of Wichita, for appellant.
Richard E. Bird, of Wichita, for appellee.
This is an action for damages for wheat burned by a fire caused by the railroad company. The jury returned a general verdict for plaintiff and answered special questions, from which a judgment for plaintiff larger than the general verdict could be computed. Plaintiff moved for judgment on the answers to the special questions. This motion was sustained. Defendant has appealed.
Defendant withdrew its motion for a new trial, hence the question whether the fire was caused by the defendant railroad is no longer in the case. Plaintiff was a tenant farmer, who had a quarter section of wheat in Lane county. He gave one-fourth of the crop to the landlord for rent. The wheat was ripe, ready to be cut, when a part of it was burned by the fire. In fact, there were two fires, a few days apart. Plaintiff had his wheat insured against loss by fire and collected about $600 from the insurance company. His total loss he estimated at about $900. His settlement with the insurance company settled for all of the loss on the second fire and compensated him in part only for the loss on the first fire. This action was for the loss on the first fire only. The jury's general verdict for plaintiff was for $259.22. In answer to special questions it found that 55 acres of plaintiff's wheat were destroyed by the first fire, that the yield of the wheat destroyed was 26 bushels per acre, and that the price at Healy, where it would have been marketed, was 66 cents per bushel. The jury further found that the settlement between plaintiff and the insurance company did not fully compensate him for the loss he had sustained.
Plaintiff filed a motion for judgment on the special findings. On the hearing of that motion it was brought out that there had been conflicting evidence as to the cost of harvesting the wheat with a combine and hauling it to the market at Healy. No special questions had been asked the jury on those points. It was suggested that a new trial would be necessary to determine those questions. Plaintiff then, in open court, consented and agreed that the court should use for those items of expense the largest figures testified to by any witness. With that admission the court deemed a new trial unnecessary, and from those figures, and the answers to the special questions, computed the sum due plaintiff to be $573.35, and rendered judgment accordingly.
Appellant argues that plaintiff was not the real party in interest that, having been compensated for his loss by the insurance company, that company became subrogated to the rights of plaintiff and could alone maintain the action as the real party...
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