Blackburn v. Colvin ( 1963 )

Schroeder, J.,

dissenting: In my opinion the judgment in this case should be reversed on the answers given by the jury to the special questions.

Assuming other points presented by this appeal have been correctly decided by the court and that the jury was properly instructed, the first special question submitted to the jury called for a “yes” or “no” answer. The jury answered in the affirmative to the effect that the defendant was guilty of a willful, intentional or reckless act that caused the sheet rock to fall. This was a general finding by the jury, and before the plaintiff was entitled to recover in this action he was required to prove the defendant guilty of willful, intentional or reckless misconduct.

When the jury was asked to be more specific in question No. 2 by reason of an affirmative answer given to question No. 1, it answered, “Defendant knew or should have known of the dangerous condition of his premises and did not warn the plaintiff of this dangerous condition.”

By no stretch of the imagination can the jury’s specific answer to question No. 2 be construed as a matter of law to be a finding of willful, intentional or reckless misconduct. By its specific finding in answer to question No. 2, the jury found the defendant guilty of only ordinary negligence.

It has long been the rule of this court that general findings made by a jury in answer to special questions are controlled by specific findings of fact which are inconsistent with the general finding.

By reason of the foregoing the special findings do not support the general verdict for the plaintiff, and the general verdict cannot stand.

It is respectfully submitted the judgment of the lower court should be reversed.