Ogilvie v. Mangels

• Decision Date: 06 December 1958
• Docket Number: No. 41045,41045
• Citation: 183 Kan. 733,332 P.2d 581
• Parties: Betty OGILVIE, Appellee, v. Joan T. MANGELS, Appellant.
• Court: Kansas Supreme Court

Page 581

332 P.2d 581

183 Kan. 733

Betty OGILVIE, Appellee, v.Joan T. MANGELS, Appellant.

No. 41045.

Supreme Court of Kansas.

Dec. 6, 1958.

Syllabus by the Court

1.Where appellant fails to assign as error the order overruling a motion for new trial, the Supreme Court is sharply limited in its review of the case and cannot consider objections to trial errors or questions of the weight of evidence looking toward the granting of a new trial.

2.A motion for judgment notwithstanding the verdict under the common law and as defined by G.S.1949, 60-3119, reaches only the pleadings and verdict; such a motion does not raise questions as to the evidence.

3.Where a defendant demurs to the plaintiff's evidence and the demurrer is overruled, if defendant then introduces his own evidence, as is his right under G.S.1949, 60-2909, Third, it is then necessary for him to move for a directed verdict at the close of all the evidence, if he still maintains that the case should be withdrawn from the jury (Ziegelasch v. Durr, 183 Kan. 233, 326 P.2d 295).

James B. Pearson, Mission, argued the cause, and Bernis G. Terry, Mission, was with him on the briefs for appellant.

George A. Lowe, Olathe, argued the cause, and H. Charles Parrish, Olathe, was with him on the brief for appellee.

JACKSON, Justice.

The appellee brought an action in the court below to recover damages for personal injuries alleged to have been suffered due to the careless and negligent driving of an automobile by the appellant.Appellant answered by general denial and further alleged that plaintiff's injuries, if any, had been caused by plaintiff's own negligence.The reply put the case at issue.

A trial to court and jury resulted in a general verdict in favor of the plaintiff in the sum of $10,500.No special questions were submitted to the jury.The trial court overruled the defendant's motion for new trial and also a motion for judgment notwithstanding the verdict.Defendant has appealed to this court.

We shall continue to refer to the parties as plaintiff and defendant.

The accident which gave rise to this action occurred at the intersection of Santa Fe Drive and 76th Street in Overland Park, Johnson County.Santa Fe Drive is a north and south street and 76th street runs east and west.The streets intersect at approximately right angles.It is established that there were no stop signs at the intersection, and further that on the northeast corner of the intersection a high hedge ran from the east line of Sante Fe along 76th street quite effectively obscuring the north view of cars approaching the intersection on 76th street.Likewise, drivers approaching from the north on Santa Fe could not see automobiles approaching from the east on 76th street.

From the testimony of the two drivers the accident involved in this appeal happened as follows:

Plaintiff was driving a Studebaker automobile west on 76th street approaching Santa Fe Drive at approximately 4:15 p. m. on May 28, 1955.She was unfamiliar with the intersection, but finding that she could not see cars approaching from the north on Santa Fe, stopped and eased out trying to see up the street to the north.Her car had a standard transmission and she had placed the car in low and proceeded at a speed of three or four miles per hour.She did not see defendant's car until her car was entering the northwest quadrant of the intersection when defendant drove her car in front of plaintiff's car and the accident occurred.Defendant's car was struck on the left side and skidded more than one hundred feet after the accident.Defendant contends she was knocked to one side by the force of the impact and lost control of her car, and that the skid marks showed the defendant's car was skidding sideways.Plaintiff's car seems to have stopped at the point of collision.

Defendant testified that she was driving a Mercury automobile and approached the intersection from the north on Santa Fe at a speed which she judged to be twenty-five miles per hour; that she knew of the hedge on the corner and that it was a bad corner to see around, and that she'couldn't see around it.'That she slowed her car as she approached the corner at a point 'fifty or maybe sixty or maybe seventy feet' from the corner; she looked both ways and resumed her speed, judged to be twenty-five miles per hour, as she entered the intersection; at no time before the collision did she see the plaintiff.

The above account of the testimony of the parties is somewhat superfluous in this appeal since the state of the record actually prevents this court from considering the question of whether the learned trial court was justified in approving the verdict of the jury and entering judgment for the plaintiff thereon.We do not intend to imply that we have doubt about the trial court's action, however.

It should be noted first, that the defendant has not specified as error the overruling of her motion for new trial, and in her brief at no time seeks a new trial.Of course, this sharply limits our power to review the case.

In Lake Superior Lbr. Co. v. Homestead B. & L. Ass'n, 139 Kan. 565, 32 P.2d 202, the syllabus reads as follows:

'Where no motion for a new trial is filed, review on appeal is limited to the question whether the judgment is supported by the pleadings and findings of fact, and inquiry will not be made as to whether the evidence supports the findings of fact.'

Since the order on the motion for new trial was not specified as error in the case at bar, it reaches this court as if no motion had been filed, since we cannot consider that motion (See plethora of cases cited Hatcher's Kan.Dig. Appeal & Error §§ 175,181; West Kan.Dig. Appeal & Error k719).

Actually, defendant only specified three errors on this appeal: (1) the overruling of the demurrer to plaintiff's evidence; (2) the order allowing a slight amendment of plaintiff's petition during the trial; and (3) the overruling of a motion for judgment notwithstanding the verdict.

The second assignment of error was a trial error, if any was committed, and is unavailable in the absence of a review of the motion for new trial, see authorities citedsupra.

As to the third assignment of error, defendant misconceives the office and purpose of a motion for judgment notwithstanding the verdict.In G.S.1949, 60-3119, pur civil code defines such a motion as follows:

'Where, upon the statement in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, though a verdict has been found against such party.'

In G.S.1949, 60-2918, the general verdict and special findings are defined and provided for, and the section closes with the sentence:

'When the special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court may give judgment accordingly.'

The last provision of our code has given rise to the most common use of the motion for judgment notwithstanding the verdict in our practice.It is a quite proper motion to directthe trial court's attention to the right of a litigant to judgment based upon the special findings of the jury notwithstanding an adverse general verdict.There are hundreds of our cases in the books raising this question.

In other words, the motion for judgment notwithstanding the verdict in our own practice performs only the same office which that motion performed at common law.It reaches only the written record of the case, that is, the pleadings and verdict.As to the practice at common law, please seeScott and Simpson, Cases and Materials on Civil Procedure, p. 770.We have found none of our cases in which a disputed question of fact was considered under such a motion.Attention is directed to the cases of Grigsby 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 follows:

'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.'

Defendant strenuously contends under her first assignment of error--the demurrer to plaintiff's evidence--that the court should have withdrawn the case from the jury and given judgment in defendant's favor.Defendant filed no motion for a directed verdict following the introduction of her own evidence and the closing of the case.She takes note of the recent case of Ziegelasch v. Durr, 183 Kan. 233, 326 P.2d 295, in which this court in an unanimous opinion held that if defendant wished to insist on a demurrer to the plaintiff's evidence after the same...