Schwab v. Nordstrom

• Decision Date: 09 December 1933
• Docket Number: 31181.
• Citation: Schwab v. Nordstrom, 138 Kan. 497, 27 P.2d 242 (Kan. 1933)
• Parties: SCHWAB v. NORDSTROM et al. [*]
• Court: Kansas Supreme Court

27 P.2d 242

138 Kan. 497

SCHWAB v. NORDSTROM et al. ^[*]

No. 31181.

Supreme Court of Kansas

December 9, 1933

Syllabus by the Court.

Jury's answer, "We do not know," to special question, held properly construed as against party having burden of proof.

Where jury returned verdict for plaintiff, and verdict for each defendant, all of which verdicts provided for no actual or punitive damages, but assessed one-third of costs to party in whose favor verdict was returned, verdicts held properly interpreted as constituting finding that none of parties had made out case.

General verdicts, irregular in form, should be construed to give them effect if on record that can reasonably be done.

1. When a jury answers a special question, "We do not know," the answer is properly construed against the party on whom was the burden of proof with respect to the matter to which the question relates.

2. General verdicts, irregular in form, should be construed to give them effect, if upon the record that can reasonably be done.

Appeal from District Court, Riley County; Edgar C. Bennett, Judge.

Action by Emanuel Schwab against John Nordstrom and another, wherein defendants filed cross-petition. From an adverse judgment plaintiff appeals.

Wm. E Smith, of Wamego, Fred R. Smith, Raymond E. Smith, and Gerald F. Smith, all of Manhattan, and A. E. Crane, of Topeka, for appellant.

Hal E Harlan and A. M. Johnston, both of Manhattan, for appellees.

HARVEY Justice.

This is an action for damages for assault and battery. Each of the defendants answered, denying liability, and by cross-petition sought to recover similar damages from plaintiff. The jury answered special questions and returned verdicts which were construed by the court as being against each of the parties seeking to recover. Plaintiff has appealed.

It appears from the record that plaintiff had a hay-baling outfit with which he went from farm to farm throughout the neighborhood baling hay at an agreed price per bale. The defendant John Nordstrom and his married son, Ruben, lived together on a farm which they operated. They employed plaintiff to bale their hay, which he did one day, finishing in the evening. Plaintiff reported to defendants that he and one of the workmen had counted the bales and there were 293 and John Nordstrom gave plaintiff a check for the baling of that number of bales. The next day defendants hauled the hay to the haymow of the barn, and in doing so counted the bales and found only 221. Defendant John Nordstrom then went to the bank on which the check was drawn, and, after discussing the matter with the banker, concluded to stop payment on the check given plaintiff until he could see plaintiff to make the proper settlement. A few days later plaintiff went to defendants' home and they talked about the check and the number of bales, and went to the haymow of the barn to count them. There is a decided conflict in the testimony as to what was said by each of the parties, both at the house and while they were in the haymow. We need not repeat the different versions of this testimony. While in the haymow plaintiff started to count the bales on two different occasions, but quit before he got through, contending that the hay was piled in such a way he could not count them well. He finally asked defendants where the rest of the hay was, intimating, as they thought, that they had not brought all the hay to the barn. This inflamed the tense feeling already existing between the parties. Plaintiff started to go down from the haymow. In doing so he passed near Ruben Nordstrom. From the haymow he went down the narrow stairs, which turned near the bottom into a small room used for a harness room or a feed room. Ruben followed not far behind him. Near the bottom of the stairs he and plaintiff got into a fight. The testimony of each lays the blame for starting it on the other. John Nordstrom came down the stairs soon, and found Ruben lying on the floor and plaintiff on top of him, and they were fighting. Plaintiff was a larger man and stronger than Ruben. John Nordstrom grabbed or struck plaintiff and pushed or pulled him off of Ruben, and all three of them fought. Plaintiff begged for them to quit hitting him, and said he would leave if they would let him up. They let him up, he went out and got in his car, and drove away. All of the parties were bruised to some extent, plaintiff the most severely, particularly about the face, and he had been struck with something across one eye. Perhaps he sustained that injury at some time during the mélée when he fell or was pushed against a bushel basket of oats in the feed room.

The principal injury for which plaintiff claimed damages was the loss of the sight of the injured eye, and there was evidence on his behalf that the loss of sight of the eye resulted from the injury. There was other evidence that the loss of the sight of the eye could not have resulted from the injury; that for years, perhaps from birth, there had been only partial vision in that eye; that the condition was one which naturally grew worse; and that this was not affected at all by any injury received in the fight. The jury answered special questions as follows:

"1. Q. Was the apparent danger to the defendant Ruben Nordstrom, at the time John Nordstrom took part in the encounter between Ruben Nordstrom and Emanuel Schwab, such as to induce a person exercising reasonable and proper judgment, to interfere in order to prevent injury to his son, Ruben? A. Yes.

"2. Q. If you answer the preceding question in the affirmative, then state whether John Nordstrom used more force than was necessary to protect his son. A. We do not know.

"3. Q. At the time the plaintiff, Emanuel Schwab, left the hay-loft, did he intend to leave the premises of John Nordstrom? A. Yes.

"4. Q. If the defendants had remained in the hayloft for a short interval of time, would the altercation have occurred between the plaintiff and defendants? A. We do not know.

"5. Q. Did the plaintiff lose his eye-sight in the left eye as a result of any injuries he received on August 18, 1930, in the altercation with the defendants? A. We do not know.

"6. Q. If

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