Sams v. Commercial Standard Ins. Co.

• Decision Date: 10 July 1943
• Docket Number: 35862.
• Citation: 157 Kan. 278,139 P.2d 859
• Parties: SAMS et al. v. COMMERCIAL STANDARD INS. CO.
• Court: Kansas Supreme Court

139 P.2d 859

157 Kan. 278

SAMS et al. v. COMMERCIAL STANDARD INS. CO.

No. 35862.

Supreme Court of Kansas

July 10, 1943

Rehearing Denied Sept. 20, 1943.

Syllabus by the Court.

Normally a specification of error in the abstract, not referred to in the brief, is deemed to have been waived.

In action for wrongful death in automobile collision, refusal to submit special questions to jury was not error where nine of twelve questions as requested were submitted verbatim and other questions submitted substantially covered other questions requested.

In action for wrongful death in automobile collision, record showed findings were supported by evidence and were not so contradictory or reflective of unfairness as to require setting them aside.

Courts should not set aside answers to special questions on the basis of capricious and unfair conduct of the jury unless they are absolutely convinced such answers reflect that attitude, especially on appeal where the trial court, which has had an opportunity to observe the demeanor and conduct of the jury, has passed upon and approved the special findings.

If there is any inconsistency in answers to special questions it is the duty of court to harmonize them whenever it is reasonably possible and in considering answers of jury to special questions submitted court is not permitted to isolate one answer and ignore others but is required to consider all of them together, and if one interpretation leads to inconsistency and another to harmony with the general verdict, the latter is to be adopted.

The reason for construing special findings so as to harmonize them with the general verdict, if possible, is that every reasonable presumption must be indulged in favor of the general verdict.

For the purpose of testing a ruling on a motion for judgment on the special findings non obstante veredicto, that motion admits there was evidence to support such special findings, and unless the special findings clearly overthrow the general verdict the latter must be permitted to stand.

Ordinarily when a jury answers a special question, "we do not know", the answer is properly construed against the party on whom rests the burden of proof, but where answer to question of necessity requires a finding as to the negligence or lack of negligence of a deceased person because of a failure to exercise due care, there exists a presumption the decedent exercised due care for protection of her own life which must be overcome by evidence.

In action for wrongful death in automobile collision where there was no evidence requiring a different answer than "don't know" to a special question as to whether decedent slackened speed, and no evidence to overcome presumption that decedent was exercising due care for her own safety, finding could not be construed as finding that decedent did not slacken speed.

In action for wrongful death in automobile collision, where answer to special question as to whether decedent slackened speed before collision was "don't know" and jury could find decedent, in the exercise of due care, was not required to slacken speed before the collision, motion for judgment non obstante veredicto was properly denied.

It is not error to refuse to give requested instructions where the instructions given by the trial court cover the same ground.

In action for wrongful death in automobile collision, trial court properly refused to give requested instructions in the exact form and precise language requested where instructions given included in impartial language substance of instructions requested.

Notwithstanding the provisions of the code require a court to instruct the jury before argument of counsel, such argument and other things may sometimes justify instructions afterward but such instructions should not go beyond what is fairly authorized by the argument of counsel or some other good reason. Gen.St.1935, 60-2909(5, 7).

Generally where no objection is made to the giving of an instruction during the trial and no request is made for its modification or clarification and such instruction is not clearly erroneous a litigant cannot be heard to complain on appeal but the rule does not apply to an instruction in itself erroneous and an appellant is not estopped from complaining of it as error by not having objected to it at the time it was given. Gen.St.1935, 60-2909(5, 7).

Where an instruction is submitted at the close of an argument suddenly and without opportunity of inspection, counsel has not had a chance to formulate a proper objection, and the situation is such that any objection he makes might be misconstrued by the jury to the prejudice of his client, any statement tending to indicate an objection to the instruction so given is sufficient to insure counsel the right of appellate review if on the motion for new trial his objection to the instruction so made is called to the attention of the trial court. Gen.St.1935, 60-2909(5, 7).

In action for wrongful death in automobile collision after defendant's counsel had concluded his argument to jury and trial court without submitting general instruction to counsel for either side submitted instruction to jury, statement "I finished my argument" by defendant's counsel was tantamount to objection and when renewed on motion for new trial was sufficient to obtain appellate review of instruction. Gen.St.1935, 60-2909(5, 7).

In action for wrongful death in automobile collision, general instruction with respect to decedent's contributory negligence in driving on bridge on right side was objectionable because it unduly emphasized one factual situation, it was inconsistent with proper instructions, it precluded defense of decedent's contributory negligence, and no admonition was made at time instruction was given that all instructions should be considered as a whole. Gen.St.1935, 60-2909(5, 7).

While an instruction which is inaccurate or incomplete may be cured by subsequently supplying the defect or accurately stating the law, yet if it is erroneous in that it states the wrong rule by which the jury are to be governed, it is not cured by another instruction stating the right role.

In action for wrongful death of motorist when meeting automobiles collided, whether motorist was guilty of contributory negligence in failing to slacken speed and in remaining on right side of bridge was for jury.

1. A specification of error in the abstract, not referred to in the brief, normally is deemed to have been waived.

2. In its consideration of answers to special questions submitted it is the duty of the trial court to harmonize them where it is reasonably possible to do so and it is not permitted to isolate one answer and ignore others but is required to consider all such questions together; if one interpretation leads to inconsistency and another to harmony with the general verdict, the latter is to be adopted.

3. A motion for judgment on the special findings, non obstante veredicto, admits, for the purpose of the motion, that the findings are supported by evidence and unless such special findings clearly overthrow the general verdict the latter must be permitted to stand.

4. Ordinarily where a jury answers a special question "Don't know" the answer is properly construed against the party on whom rests the burden of proof with respect to the matter to which the question relates; this rule is subject to the limitation that where the answer to such question, of necessity, involves a finding as to the negligence, or lack of negligence, of a deceased person because of a failure to exercise due care, the presumption such decedent exercised due care for the protection of her own life must be overcome by evidence, substantial in its character, notwithstanding the rendition of such answer.

5. The trial court may properly refuse to give requested instructions where the instructions given cover the same ground.

6. Notwithstanding the provisions of the code require the court to instruct the jury before argument of counsel, such argument and other things may sometimes justify instructions afterward but such instructions should not go beyond what is fairly authorized by the argument of counsel or some other good reason.

7. The giving of instructions such as are referred to in the preceding syllabus, is a matter which rests largely in the discretion of the trial court and ordinarily it is only in the event of abuse, resulting in prejudice, that an exercise of such discretion will be ground for reversal.

8. Where no objection is made to the giving of an instruction during the trial and such instruction is not clearly erroneous a litigant cannot be heard to complain on appeal.

9. An instruction which is in itself erroneous does not require an objection and a litigant is not estopped from complaining of it as error by not having objected to it at the time it was given.

10. The record examined in an action to recover damages for wrongful death suffered in an automobile accident and for injuries to decedent's automobile, and held, the trial court did not err: (a) In overruling defendant's motion to submit special questions; (b) in refusing to grant defendant's motion to set aside answers to special questions; (c) in denying defendant's motion for judgment on the special findings non obstante veredicto; (d) in refusing to submit requested instructions; (e) in holding the evidence did not disclose the decedent was guilty of contributory negligence as a matter of law.

11. The record further examined and held: (a) The statement made by counsel for defendant with respect to the giving of an additional instruction at the close of his argument was tantamount to the making of an objection to such instruction (b) the instruction complained of, given at the...