Meek v. The Wheeler

• Decision Date: 11 December 1926
• Docket Number: 26,872
• Citation: Meek v. The Wheeler, 251 P. 184, 122 Kan. 69 (Kan. 1926)
• Court: Kansas Supreme Court
• Parties: H. S. MEEK, Appellant, v. THE WHEELER, KELLY & HAGNY INVESTMENT COMPANY, Appellee

251 P. 184

122 Kan. 69

H. S. MEEK, Appellant, v. THE WHEELER, KELLY & HAGNY INVESTMENT COMPANY, Appellee

No. 26,872

Supreme Court of Kansas

December 11, 1926

Decided July, 1926.

Appeal from Sedgwick district court, division No. 1;THOMAS E ELCOCK, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1.WORKMEN'S COMPENSATION ACT--Evidence--Reduction of Jury Verdict.In an action for compensation to a workman for an injury sustained in his employer's service, the record examined, and held that the lack of evidence justified and required a reduction of the verdict of the jury.

2.TRIAL--Special Interrogatories--Definiteness of Answer.Under the issues and evidence in this case, no prejudicial error arose from the overruling of plaintiff's motion to require the jury to answer decisively certain questions propounded to them instead of the answers given: "We do not know."

3.SAME--Instructions--Special Interrogatories Not Covered by Evidence.An instruction touching the proper answer which the jury should give to a special question of fact, where no evidence--or insufficient evidence worthy of credence--is adduced, considered, and held not prejudicial to appellant.

4.WORKMEN'S COMPENSATION ACT--Evidence--Physician Appointed by Court--Weight and Credence of Testimony.In an action under the workmen's compensation act, it was proper for the trial court to appoint a neutral physician to examine the plaintiff's physical condition, and it was not erroneous for such physician to testify, among other matters, that he had been appointed by the court, nor for counsel to argue to the jury their views touching the weight and credence which might be given to his testimony because of such appointment.

5.SAME--Evidence--Temporary Partial Incapacity.The record examined and held to justify and require a modification of the judgment by raising its amount to include compensation for an interval of time determinable by the record during which temporary partial incapacity did continue, notwithstanding a want of evidence to support a claim for such compensation extending into the future.

John W. Adams, William J. Wertz and George Adams, all of Wichita, for the appellant.

Charles P. Embry, K. W. Pringle and G. Austin Brown, all of Wichita, for the appellee.

OPINION

DAWSON, J.:

This action arose under the compensation law.

Plaintiff was injured by falling from a scaffold while painting the interior of a business building in Wichita.The defendant, his employer, paid plaintiff $ 435 as compensation, at the rate of $ 15 per week for 29 weeks following his injury; after which period payments were stopped, on the assumed ground that plaintiff's incapacity had ceased.This action followed.

An advisory jury returned a verdict in favor of plaintiff in the sum of $ 1,700, together with certain special findings of fact:

"SPECIAL QUESTIONS SUBMITTED BY THE PLAINTIFF.

"1.Do you find that the plaintiff received injuries as alleged in his petition and sustained therefrom a total disability to work for a length of time?A.Yes.

"2. . . .(a) How long in the past the plaintiff has sustained such total disability?A. Twenty-six weeks.

"(b) How long do you find that the plaintiff will sustain a total disability to perform work in the future?A.None.

"3.If you find that the plaintiff has sustained a partial disability to work or earn wages,

"(a) Is such partial disability to work permanent?A.No.

"(b) If not permanent, how long will it continue, or do you find it has ceased, and if so, when did it cease?A.We do not know.

"4.What expense do you find the plaintiff has incurred for medical attention during the first fifty days following the accident?A. $ 75. . . . .

"SPECIAL QUESTIONS SUBMITTED BY THE DEFENDANT.

"5. . . .State: (a) Whether plaintiff has been partially incapacitated since his total incapacity from labor ceased; (b) Whether the plaintiff will be in the future partially incapacitated from labor by reason of said injury.A. (a) Yes.(b) Yes.

"6.If you answer question number five in the affirmative, then state: (a) How many weeks after total incapacity ceased plaintiff was partially incapacitated; (b) How many weeks will plaintiff be partially incapacitated from said injury in the future?A. (a)We do not know.(b)We do not know.

"7.If you answer number five in the affirmative, then state: (a) How much the plaintiff has been able to earn during his partial incapacity from labor; (b) How much plaintiff will be able to earn in the future during his partial incapacity?A. (a)We do not know.(b)We do not know.

"8.If you find that the plaintiff was injured and disabled, state what extent in percentage the use of his ankle has been limited.A. Twenty-five per cent."

Plaintiff filed a motion to set aside most of these findings, also a motion for judgment for $ 4,698 "on the special findings and the undisputed evidence, notwithstanding the general verdict."These motions were overruled.

Defendant filed a motion to set aside the general verdict and for judgment in its favor in accordance with the special findings, and that defendant be given a credit thereon for the sum of $ 435 admittedly received as compensation during plaintiff's disability.This motion was allowed.The trial court made a computation based upon the jury's special finding of total incapacity for 26 weeks at $ 15 per week, $ 390, plus $ 75 expense incurred by plaintiff for medical attention, totaling $ 465, less a credit of $ 435 for payments theretofore made by defendant to plaintiff, and gave judgment for the balance, $ 30, in favor of plaintiff.

Plaintiff appeals, contending first that the trial court erred in setting aside the general verdict.This court can discern no evidence upon which such a verdict could be based.Plaintiff relies upon the jury's special finding of plaintiff's continuing partial incapacity and that the use of his ankle had been limited 25 per cent.But whatever significance should be attached to these findings (to be considered later)they furnish no basis for a verdict of $ 1,700.

Error is assigned in overruling plaintiff's motion to require the jury to return to the jury room and answer the question how long in the future the plaintiff would be disabled, also to require the jury to answer plaintiff's question 3 (b) and defendant's question 6 (b).On this point the record reads:

"THE COURT: That will be overruled.I don't blame them for answering it like they did."

Appellant invokes the rule that the failure of a jury to return sufficient answers to special questions is prejudicial error which requires the granting of a new trial.But that rule pertains to cases where some competent and trustworthy testimony has been adduced in evidence.Here there was none, unless on a theory which we will consider when the other points pressed upon our attention by appellant are determined.

Fault is found with this instruction given by the court:

"You are further instructed that the question of plaintiff's earning capacity is a fact to be determined like any other fact in this case, from the evidence which has been introduced in the case.In order to support a finding by you as to earning capacity, as well as any other fact or issue in the case, there must have been some evidence introduced upon which to base such finding.Where a fact is in issue in a case and no evidence is introduced in relation thereto, or sufficient evidence is not introduced in the case to enable the jury to arrive at a finding of fact in relation thereto, no finding can properly be made by the jury and in such a situation a proper answer to a special question calling for such finding would be 'We do not know.'"

A just criticism of this instruction would be that the trial court should have told the jury that where an asserted fact is in issue,...