Harbaugh v. Darr , 200 Kan. 610 ( 1968 )

O’Connob, J.,

dissenting: I cannot agree that the submission of the special questions did not affect the substantial rights of the plaintiffs, and therefore, respectfully dissent from Syllabus f 5 and the corresponding portion of the majority opinion.

The alleged prejudicial effect of submitting the special questions cannot be determined by saying the answers are not inconsistent with the general verdict. Regardless of how the questions were answered, they would never be inconsistent or in conflict with the general verdict, and therefore, never prejudicial. The posture of the case was such that submission of the questions was fraught with the risk of prejudice, and to say that the jury was not influenced by their submission is too speculative to let the general verdict stand.

The right of a litigant to have material and relevant issues determined by a jury in the form of a general verdict should not be jeopardized by the submission of special questions wholly outside any of the issues in the case. The code of civil procedure requires that if the court, in its discretion, submits special questions along with a general verdict, the questions must relate to one or more substantial questions of disputed facts on which decision is necessary to a verdict. (K. S. A. 60-249 [&]; Advisory Committee Notes, Gard, Kansas Code of Civil Procedure, Annotated § 249.) The questions here neither related to an issue in the case, nor was their determination necessary to the verdict.

There was testimony that Cynthia’s mother, one of the plaintiffs, had said Mrs. Quinby was a careless driver. The court ruled, however, the evidence was insufficient for the jury to determine Mrs. Quinby was well known as a reckless and careless driver. The court further determined the negligence of Mrs. Quinby was not imputable to the plaintiffs, and refused to give an instruction on contributory negligence. Notwithstanding these rulings, about which no complaint is now made, the court, over plaintiffs’ objection, submitted the special questions and instructed the jury “to answer each of these questions ... in accordance with the evidence of the case.”

With some evidence before the jury that Mrs. Harbaugh thought Mrs. Quinby was a careless driver, the submission of the questions and the court’s instruction could leave the jury with only the impression that the questions were material and relevant to the general verdict. The questions pertained to the possible negligence of Mrs. Harbaugh, but no instruction on contributory negligence or its effect on the plaintiffs’ right to recover had been given to the jury. Under the circumstances, the jury was put adrift on a matter that, in my opinion, may well have influenced the general verdict— at least the risk of prejudice is so great I would reverse the judgment and remand the case with directions to grant a new trial.

Fatzek, J., joins in the foregoing dissent.