Foster v. Turner

• Decision Date: 01 July 1883
• Citation: 1 P. 145,31 Kan. 58
• Parties: JOHN FOSTER v. WILLIAM TURNER
• Court: Kansas Supreme Court

1 P. 145

31 Kan. 58

JOHN FOSTER v. WILLIAM TURNER

Supreme Court of Kansas

July 1, 1883

Error from McPherson District Court.

THE opinion states the nature of the action, and the facts. January 12, 1882, verdict and judgment for defendant Turner. The plaintiff Foster brings the case to this court.

Judgment reversed and cause remanded for new trial.

J. G Mohler, for plaintiff in error.

Barker & Pancoast, and Simpson & Bowker, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought by John Foster against William Turner on a promissory note for $ 100, and a real-estate mortgage securing such note. The defendant answered, setting forth that the plaintiff was an attorney at law; that the defendant employed him to attend to certain legal business for the defendant; that in consideration for the anticipated services of the plaintiff in such business, the defendant gave the plaintiff $ 50 in cash and the note and mortgage sued on that the plaintiff wrongfully, negligently and fraudulently attended to such business, and finally abandoned the same, to the damage of the defendant in the sum of $ 2,200. The defendant prayed that the note and mortgage be adjudged to be without consideration and null and void, and for an affirmative judgment in favor of the defendant and against the plaintiff for the sum of $ 2,200 as damages. A trial was had before the court and a jury, which resulted in a verdict in favor of the defendant and against the plaintiff for the sum of $ 780.75. A motion for a new trial was then made by the plaintiff upon nearly all the statutory grounds, and pending this motion the defendant remitted all the damages awarded to him except those awarded him on account of the payment of said $ 50, with the interest thereon, amounting, principal and interest, to the sum of $ 52. The motion for the new trial was then overruled by the court, and judgment was rendered in favor of the defendant and against the plaintiff for $ 52 and costs. To reverse this judgment the plaintiff now brings the case to this court.

The principal alleged errors are as follows: First, the refusal of the court to submit to the jury for their consideration certain particular questions of fact; second, the giving to the jury certain instructions after the argument of the case had been concluded; third, the giving to the jury certain instructions after the jury had retired to consider of their verdict, and pending their deliberations.

I. We can hardly say that the court below committed any material error in refusing to submit to the jury the particular questions of fact which the plaintiff asked to have submitted, and which the court refused to submit.

The plaintiff requested the court below to submit to the jury the following, among other questions: "4. Did the said plaintiff manage the case honestly and faithfully? 5. If the above question is answered in the negative, then state particular acts showing the unfaithfulness of the said plaintiff in managing the case."

The court submitted the first of the above-cited questions, but refused to submit the question numbered 5; and of this the plaintiff complains. At one time, § 286 of the civil code required that the trial court, at the request of either party, should "direct the jury to find a special verdict in writing upon all or any of the issues in the case;" and upon a like request to direct the jury to find a general verdict and special findings, such as is authorized at the present time. (Laws of 1870, ch. 87, § 7.) But in 1874, special verdicts were abolished, (Laws of 1874, ch. 91, § 1,) and the present statute upon the subject was adopted, which reads as follows:

"In all cases the jury shall render a general verdict, and the court shall in any case, at the request of the parties thereto, or either of them, in addition to the general verdict, direct the jury to find upon particular questions of fact, to be stated in writing by the party or parties requesting the same." (Civil Code, § 286.)

Now if the jury were required to answer said question numbered 5, would it not be requiring them to find a special verdict upon one "of the issues in the case" as was required by § 286 of the civil code before it was amended in 1874? And if so, would it not be requiring them to do just what the legislature has said by the act of 1874 need not be done? If the plaintiff has a right to require that this be done, then may he not require that questions be put in the following form: "Is the plaintiff entitled to recover in this action? If the above question be answered in the negative, then state all the particular facts of the case, and all the particular acts of the parties showing or tending to show that the plaintiff is not entitled to recover." Under § 286 of the civil code, as it read from 1870 up to 1874, the jury themselves were required to prepare in writing and render the special verdict which they might agree upon, without any aid from either of the parties, just as a court is now required, under § 290 of the civil code, to prepare and deliver its own special findings, without the aid of either of the parties. But under § 286 of the civil code, as it now reads, and as it has read read since 1874, the jury are not required to do anything except to render a general verdict, and in connection therewith to make findings "upon such particular questions of fact" as are stated in writing by one or both of the parties, and as requested by such party or parties. In other words, the old law with respect to special verdicts required that the jury should make their own statements of facts, but the present law with reference to special findings by the jury requires that the parties shall make the statements of the facts; and all that the jury are required to do is merely to give answers with reference to such facts as they are stated by the parties.

Now a court might not err materially in submitting general questions of fact to the jury, leaving the jury to give particular answers thereto, and leaving the jury to state the particular facts themselves; but what we wish to say is, that the court is not bound to do so; and particularly it is not bound to submit to the jury such very general questions of fact as will require the jury themselves to state new facts not particularly mentioned in such general questions. The question as to how general or how particular the questions of fact to be submitted to the jury in any particular case should be, rests very largely in the sound judicial discretion of the trial court; but of course such questions of fact should be sufficiently particular so that they might fairly be denominated "particular questions of fact" within the meaning of said § 286 of the civil code. We think it is also true that the jury, in giving answers to "particular questions of fact," may sometimes be required to state facts themselves, to the extent of giving amounts, dates, weights, sizes, speed or velocity, time distances, etc., and of designating between alternative facts, and perhaps sometimes of giving other facts which do not now occur to us; but all such answers have relation to the facts already mentioned in the "particular questions of fact" stated by the parties, and not to new facts to be stated by the jury themselves in answer to some very general question of fact. Now said question 5 hardly comes within the provisions of the statute. It does not state the facts and ask that the jury shall find with reference to...