Henderson v. Deckert
Decision Date | 06 October 1945 |
Docket Number | 36416. |
Citation | 162 P.2d 88,160 Kan. 386 |
Parties | HENDERSON v. DECKERT et al. |
Court | Kansas Supreme Court |
Appeal from District Court, Sedgwick County, Division No. 2; Robert L. NeSmith, Judge.
Action by W. J. Henderson against John Deckert, doing business as Deckert Oil Company, and others, to recover for injuries received in an automobile accident. From a judgment for plaintiff, the defendants appeal.
Syllabus of the Court.
1. Specifications of error which are neither briefed nor argued are regarded as abandoned and on appeal will not be reviewed or considered by this court.
2. When the parties to an action stipulate it shall be submitted to the jury on special interrogatories prepared by the court and such interrogatories are submitted pursuant to that agreement without objection on their part or any request that questions other than those prepared by the court be submitted, they waive any rights they may have had to object to them on the grounds they were improper or defective in form.
3. A verdict which possesses the dual characteristics of both a special and general verdict is to be liberally and favorably construed and when viewed in the light of the entire record must be upheld if there is evidence to sustain it.
4. On a motion for new trial, evidence with respect to the reasons for a verdict or any of the elements that go to make it up or other matters essentially inhering in the verdict itself irrespective of whether it is sought to be adduced for the purpose of impeaching such verdict or upholding it, is improper.
5. When special interrogatories are submitted to and answered by a jury, objections based upon grounds the answers are not sufficiently full and definite or that the jury was confused in making such answers must be made at the time the verdict is rendered and before the jury is discharged to be available on appellate review.
6. Following Carlisle v. Union Public Service Co., 137 Kan. 636, 21 P.2d 395, it is held that before the amount of a judgment will be reduced it must appear that it is so large as to shock the conscience of the court.
7. The record examined, and held: (1) Neither the form of special interrogatories nor the answers thereto disclosed such confusion on the part of the jury as to require the granting of a motion for new trial; (2) the answers made by the jury to special interrogatories were not the result of passion and prejudice; (3) the damage allowed by the answers to such special interrogatories was not sufficiently excessive to require a new trial, (4) the judgment rendered by the trial court pursuant to stipulation of the parties was not excessive and is affirmed.
W. A. Kahrs, of Wichita (Austin M. Cowan, Robert H Nelson, Henry L. Butler, and Clarence N. Holeman, all of Wichita, on the brief), for appellants.
Henry E. Martz and George B. Powers, both of Wichita (Fred W. Aley, Robert C. Foulston, George Siefkin, Samuel E. Bartlett, Stuart R. Carter, and Thomas E. Woods, all of Wichita, on the brief), for appellee.
The plaintiff brought this action to recover damages for injuries received in an automobile accident. By answers to special interrogatories a jury allowed him $15,785. That amount was reduced $3120 by the district court and judgment rendered for $12,665.00. The defendants appeal.
On the evening of June 24, 1943, W. J. Henderson, who was a laborer and worked for the Wichita nurseries, was riding in the back end of a pickup truck belonging to his employer when it was struck from the rear by a gas transport truck owned by the defendant John Deckert, d/b/a Deckert Oil Company, and driven by defendant Alfred Denson. As a result the pickup truck was thrown from the highway a distance of about 175 feet into a field and Henderson was seriously injured. Subsequently he brought suit, charging negligent operation of the gas transport truck, against such driver, the owner of the truck, and the Farmers Mutual Hail Insurance Company.
In the court below no question was raised as to the pleadings or parties. The defendants' answer conceded negligence on the part of the driver, Denson. During the trial which commenced on February 4, 1945, it was admitted Denson was acting as the servant and employee of the oil company at the time of the accident and that the defendant insurance company had issued a policy of insurance covering the truck in question under the terms of which its maximum liability was $10,000 for any one person. It was further admitted the actual bills incurred by the plaintiff amounted to $831.35 and it was stipulated his life expectancy on the date he was injured was 8.97 years. In fact the only controverted issues, for determination were the extent of plaintiff's disability as a result of the accident and the amount of his recovery.
A careful review of the record insofar as it relates to plaintiff's situation up to the date of the accident reveals no dispute in the testimony as to the following facts: He was 69 years of age; his work at the nursery consisted of digging holes for setting shrubs, evergreens and shade trees; when unemployed there he worked on a transfer wagon; he kept steadily employed, was a good workman and was industrious and dependable; his work compared favorably to that of other employees; he never complained of physical infirmities or asked for lighter work and so far as his employer or fellow employees were concerned they observed no physical disability which interfered with his ability to perform the duties required of him by the work in which he was engaged.
With respect to earning power prior to the accident there is some confusion but the plaintiff's testimony in regard thereto is not challenged by the defendants. Mr. Schell, the owner of the Wichita Nursery, stated that in June 1943 Henderson was earning 60 cents per hour and averaged about $27.00 per week net (emphasis supplied). Just what was meant by use of the word 'net' is not disclosed. The plaintiff himself, without stating the source from whence it came or the period of time involved, testified on one occasion that his average weekly wage ran up to $35 or $36 and sometimes more. On another, and again without fixing the date to which he had reference, he stated his wage ran from $25 to $27 up to $35 per week.
As to the extent of plaintiff's injuries less dispute exists than is usually to be found in personal injury actions. Time and space will not permit relation in detail of the evidence adduced on that subject. It will be summarized as briefly as the state of the record will permit.
Immediately after the accident plaintiff was taken to the hospital. When first observed by a doctor he was suffering from mild shock and obviously in great pain. Examination disclosed his injuries were severe and his condition to be as follows: (1) Hanging from his left heel there was a flap of skin two to two and one-half inches wide and two and a half to three inches long which had been torn away from the weight bearing surface thereof. It was right down to the periosteum--the fibrous envelope which covers the bone. (2) The bones of his left foot were crushed and mashed together and the arch of such foot was greatly exaggerated. (3) He had a compressed fracture of the third lumbar vertebra, otherwise described as a fracture of the arch of the back. (4) His eighth, ninth and tenth ribs on the left side were fractured.
Plaintiff remained in the hospital from June 24, 1943, to August 26, 1943. While there three different casts were applied to his left foot and his body from just below his arms to down around his hips was encased in a plaster cast. This body cast was changed from time to time but was worn until November 23, 1943. When finally removed it was replaced by a Taylor back brace--a large steel brace built to fit the patient and maintain the body in such a position as to facilitate proper healing of the fractured vertebra. At the time of his release from the hospital plaintiff was on crutches and remained on them for several months. Later he walked with the aid of a cane for a couple of months. Thereafter, and at the time of the trial, he was able to walk, although with a noticeable limp, without supports of such character. During all of the time he experienced the pain and suffering to be expected and usually prevalent in cases where persons have received injuries as serious as those disclosed by the evidence.
With respect to his condition at the time of the trial plaintiff testified at considerable length. We shall not attempt to relate all of the things of which he complained. A few of them were in substance as follows: He had continous pain in his foot; his back pained him when he changed positions; he was nervous and could not sit comfortably; if he did sit down he could not remain in that position for any length of time without severe pain in his back; he did not rest at night; when he would attempt to get around his back would commence to hurt, he would get weak and unless he wore the Taylor brace--which he was then wearing--he would just seem to slip and fall down; in his opinion he could not bend forward or sideways sufficient to hold a job and was not physically able to work.
On the same subject and in particular with respect to permanent disability, Dr. Crumpacker, who had been his attending physician from the time of the accident to the date of the trial, stated that plaintiff as a result of his accident had an insufficient heel with an insufficient heel pad, a deformed left foot with a disability in the left leg of from eighty-five to ninety-five percent for purposes of manual labor, and a back injury which had resulted in some degree of disability, all of which conditions were permanent. Summarizing his views he said:
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