Lord v. Hercules Powder Co.

Citation161 Kan. 268,167 P.2d 299
Decision Date06 April 1946
Docket Number36513.
PartiesLORD v. HERCULES POWDER CO. et al.
CourtUnited States State Supreme Court of Kansas

Appeal from District Court, Douglas County; Hugh Means, Judge.

Personal injury action by Edward D. Lord against the Hercules Powder Company and another. The jury returned a verdict for plaintiff, but the court set aside the verdict and rendered judgment for defendants and plaintiff appeals.

Cause remanded with directions.

Syllabus by the Court.

1. A general verdict is one by wich a jury pronounces generally on all issues of fact submitted to it for determination. (G.S 1935, 60-2918.)

2. A general verdict in favor of a party imports a finding in his favor upon all issues in the case which are not inconsistent with the special findings.

3. A general verdict and special findings should always be harmonized, if possible, and every reasonable presumption should be indulged in favor of the general verdict. Nothing will be presumed in favor of the special findings.

4. For the purpose of obtaining a ruling on a motion non obstance veredicto it is admitted the special findings are supported by evidence.

5. In order for a verdict to stand it must have not only the approval of the jury but also the independent approval of the trial court. Unless the court can give a verdict its independent approval it has not only the right, but the duty, to set it aside and to grant a new trial.

6. Where a trial court is dissatisfied with a general verdict and probably with some of the special findings, the correctness of which is not challenged, it may not upon its independent consideration of the whole record, including the weighing of evidence, substitute its judgment for that of the jury, set aside the general verdict and the special findings and render a judgment in favor of the other party. Under such circumstances the extent of its power is to grant a new trial.

Henry H. Asher and Clarence M. Gorrill, both of Lawrence, for appellant.

John J Riling, of Lawrence (Edw. T. Riling and R. B. Stevens, both of Lawrence, on the brief), for appellees.

WEDELL Justice.

This is an appeal by the plaintiff from a judgment in an action to recover damages for personal injuries sustained in an automobile collision.

The jury rendered a verdict in favor of the plaintiff. The court set aside the verdict and rendered judgment for defendants. This, plaintiff contends, constituted error.

The action was against The Hercules Powder Company and Bernice Everts, the driver of the car in which plaintiff was riding when it collided with another car driven by Winfred A. Turner. The latter is not a party to the action. Defendant, The Hercules Powder Company, manufactures gunpowder for the United States government at the government's Sunflower Ordnance Works located in Johnson county. It appears the plaintiff was employed by the United States government as its chief safety engineer in charge of all activities for the United States ordnance department having to do with the avoidance and prevention of accidental injuries to persons and property on the tract of land and area occupied by the Sunflower Ordnance Works. A fleet of automobiles was operated to facilitate the business of The Hercules Powder Company and the Sunflower Ordance Works. On the night of October 8, 1943, an explosion occurred at the plant which required the immediate attention of plaintiff, who resided at Lawrence. The defendant driver, Bernice Everts, was directed to go to Lawrence and transport plaintiff to the plant. Some disagreement arose among those in charge of the fleet of cars and drivers relative to whether the driver should be directed to ignore speed laws and safety regulations. It appears Major Arthur E. Inman, in charge of the ordnance works and plaintiff's superior, was consulted and he directed that plaintiff be brought to the plant as speedily as possible. The ordnance plant is located to the south of U.S. highway 10. Sunflower Village is situated north of the highway. The collision occurred on highway 10 between the car in which plaintiff was riding, while traveling east, and the Turner car, which came into highway 10 from the north out of Sunflower Village. The latter car turned west on highway 10 and the collision occurred a short distance west of the point at which the Turner car entered the highway.

The foregoing sketchy statement, of course, is not intended to be a complete statement of the facts but only a general outline of circumstances surrounding the action. As we view the question presented on appeal a more definite and detailed statement of the facts is not necessary.

Plaintiff's action was predicated upon the negligence of the defendant, The Hercules Powder Company, and the defendant driver, Bernice Everts, who had been directed by plaintiff's superior to deliver the plaintiff to the plant. Defendants denied such alleged negligence and contended the proximate cause of the collision was the negligence of Turner and that if defendants were guilty of negligence, the plaintiff was guilty of contributory negligence in failing to object to the manner in which the car in which he was riding was operated. The defendant, The Hercules Powder Company, also denied that the defendant, Bernice Everts, or the plaintiff, were its agent, servant or employee. It alleged they were the agents and employees of the Sunflower Ordnance Works, an agency of the government. Plaintiff's reply denied all allegations of the answer contrary to or at variance with the allegations of the petition. The reply also alleged defendants had the sole and exclusive control of the car in which he was riding, the selection of the driver and the method of its operation on this particular occasion.

At the conclusion of plaintiff's evidence defendants interposed a demurrer thereto which the trial court overruled. Defendants adduced their evidence on the issues joined by the pleadings. The court instructed the jury. The jury returned a general verdict in favor of the plaintiff. It made special findings in answers to questions submitted by both parties. Defendants moved to have the general verdict set aside and to have judgment rendered in their favor on the special findings. The alleged reason for the motion was that the findings were inconsistent with the general verdict. Defendants also filed a motion for a new trial but no ruling has been had thereon. The court took the motion for judgment non obstante veredicto under advisement and later ruled:

'And now on this 30th day of June, 1945, said motion of the defendants to set aside the general verdict and to render a judgment in favor of the defendants upon the special questions and answers, comes on for decision, the parties hereto appearing by their respective attorneys as before. And the Court having considered said motion and arguments of counsel and being fully advised finds that upon the special questions and answers thereto alone, the defendants are not entitled to a judgment, but the Court further finds that the plaintiff is not entitled to recover in this case upon the whole record, the evidence introduced, the answers to the special questions propounded by the plaintiff and defendants submitted by the Court, and upon the whole situation the Court finds that the defendants are entitled to a judgment for costs.
'It is, therefore, by the Court Considered, Ordered and Adjudged that the general verdict heretofore returned by the jury in favor of the plaintiff and against the defendants be and it hereby is set aside and that the defendants have judgment against the plaintiff for the costs of this action amounting to $74.65.'

From the judgment plaintiff appeals and contends the district court erred:

'1. In setting aside the general verdict of the jury.
'2. In entering judgment in favor of the defendants for costs.'

The contentions will be considered in the order stated. How did the trial court get rid of the verdict which the jury rendered upon instructions the court had given as the law governing every issue in the case? Having set aside the...

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18 cases
  • Natanson v. Kline
    • United States
    • United States State Supreme Court of Kansas
    • April 9, 1960
    ...are, and must be, in favor of the verdict. All issues of fact have been resolved in favor of the defendants. Lord v. Hercules Powder Co., 161 Kan. 268, 167 P.2d 299; and Beye v. Andres, 179 Kan. 502, 296 P.2d The appellant contends, however, the uncontradicted evidence shows the defendants ......
  • Ogilvie v. Mangels
    • United States
    • United States State Supreme Court of Kansas
    • December 6, 1958
    ...v. Jenkins, Kan., 331 P.2d 284, where Mr. Justice Wertz, speaking for the court, discussed a similar question, and Lord v. Hercules Powder Co., 161 Kan. 268, 167 P.2d 299, 300, in which the opinion of the court was written by Mr. Justice Wedell, the sixth paragraph of the syllabus reads as ......
  • Security Insurance Co. of New Haven v. Johnson
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • March 24, 1960
    ...kind would bar the plaintiff. The Kansas decisions cited fall within one or the other of the foregoing categories. Lord v. Hercules Powder Co., 161 Kan. 268, 167 P.2d 299; Phillips v. Hartford Accident & Indemnity Co., 157 Kan. 581, 142 P.2d 704; Grigsby v. Jenkins, 183 Kan. 594, 331 P.2d I......
  • Fralick v. Kansas City Public Service Co.
    • United States
    • United States State Supreme Court of Kansas
    • November 12, 1949
    ...include the following: Giltner v. Stephens, 166 Kan. 172, 200 P.2d 290; Gabel v. Hanby, 165 Kan. 116, 193 P.2d 239; Lord v. Hercules Powder Co., 161 Kan. 268, 167 P.2d 299; Glenn v. Montgomery Ward & Co., 160 Kan. 488, 163 P.2d 427; Walker v. Colgate-Palmolive-Peet Co., 157 Kan. 170, 139 P.......
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