1204. Special verdict and findings

The verdict not being limited, by express terms of the Code, to a general verdict, the jury may find upon particular questions of fact, and on such findings the court may render judgment which is practically, if not technically, rendered upon the verdict of the jury, and thereby findings of fact are taken into the record.

Special findings accompanying a verdict rendered on direction of the court are immaterial.3

§ 1205.

Power to require

"In all cases the jury shall render a general verdict, and the court may in any case at the request or the parties thereto, or either of them, in addition to the general verdict direct the jury to find upon particular questions of fact, to be stated in writing by the party or parties requesting the same," but under Const. art. 7, § 21, it is within the trial court's discretion to refuse to submit special interrogatories."

2 Severy v. Chicago, R. I. & P. Ry. Co., 50 P. 162, 6 Okl. 153.

8 Missouri, K. & T. R. Co. v. L. A. Watkins Merchandise Co., 92 P. 1102, 76 Kan. 813.

4 Rev. Laws 1910, § 5013.

5 Cox v. Kirkwood, 59 Okl. 183, 158 P. 930.

Under Const. art. 7, § 21, a defendant is not entitled to have special interrogatories submitted to the jury in addition to the general verdict. St. Louis & S. F. Ry, Co. v. Clampitt, 55 Okl. 686, 154 P. 40.

§ 1206. Interrogatories

It is not ordinarily error to submit special interrogatories within the issues raised by the pleadings and evidence; but a special interrogatory that is immaterial or confusing should be refused.s

Special interrogatories should be refused which call for mere evidentiary matters," rather than for ultimate facts. 10

Special questions, requiring the jury to speculate as to what might have happened in a certain contingency, should not be submitted.11

A request for special findings after the court had announced its findings, overruled the motion for new trial, and entered final judgment, came too late.12

There was no error in submitting a special question within the issues raised by the pleadings. Long v. Kansas City, M. & O. R. Co., 164 P. 175, 100 Kan. 361.

7 Special questions submitted are not outside the testimony, if, though there is no direct testimony, inferences may be drawn to uphold them. Griffith v. Atchison, T. & S. F. Ry. Co., 102 Kan. 23, 169 P. 546.

8 City of Weir v. Herbert, 51 P. 582, 6 Kan. App. 596; Root & Morgan v. Coyle, 82 P. 648, 15 Okl. 574; Drumm-Flato Commission Co. v. Edmisson, 87 P. 311, 17 Okl. 344, affirmed 28 S. Ct. 367, 208 U. S. 534, 52 L. Ed. 606.

It is proper to refuse to submit to the jury special questions which are immaterial, either because they do not relate to the issues raised, or because they are uncontradicted, and would necessarily be included in the general verdict. Atchison, T. & S. F. R. Co. v. Dickerson, 45 P. 975, 4 Kan. App. 345; Missouri Pac. Ry. Co. v. Brown, 47 P. 553, 5 Kan. App. 880.

Where, the questions asked to be submitted are frivolous, immaterial, repetitious, and run to the minor and subdivided facts, into which the principal fact may be resolved, and cannot be fully and fairly answered without confusing the jury, it is the duty of the trial court to refuse to submit them. Burr v. Honeywell, 51 P. 235, 6 Kan. App. 783.

9 A court is not warranted in submitting questions which require the itemizing of the ultimate facts or call for mere evidentiary matters on which such facts were based. Madison v. Kansas City, M. & O. Ry. Co., 129 P. 1157, 88 Kan. 784.

A party may not have questions submitted to the jury their answers to which will involve a recitation of a large part of the testimony. Jenkins v. Beachy, 80 P. 947, 71 Kan. 857.

10 Only single ultimate facts are to be submitted in any special interrogatory. Foltz v. Buck, 131 P. 587, 89 Kan. 381.

Special interrogatories should be refused which ask the jury to pass on the evidentiary, and not ultimate, facts. Riley v. Wolfley, 55 P. 461, 60 Kan. 855.

11 Atchison, T. & S. F. R. Co. v. Lannigan, 42 P. 343, 56 Kan. 109.

12 Kansas City v. King, 68 P. 1093, 65 Kan. 64.

Questions presented for special findings, which assume as true material facts in issue, are properly excluded.13

In submitting special questions to the jury, it is within the discretion of the trial court to determine how general or how special the questions should be.14

14

A court may make reasonable rules as to the submission of special interrogatories, and they should be presented to the court early enough to enable it to revise and the opposing party to examine them before the jury is charged or the argument is begun.15

It is proper to refuse all questions to the jury propounded in a negative, confusing or leading form.16

It is the duty of the court to revise the questions presented for special findings, striking out all which are mere repetitions, or touch immaterial facts, and changing and arranging the others in natural order.17

13 Elliott v. Reynolds, 16 P. 698, 38 Kan. 274.

14 Southern Kan. Ry. Co. v. Walsh, 26 P. 45, 45 Kan. 653.

15 Lehnen v. E. J. Hines & Co., 127 P. 612, 88 Kan. 58, 42 L. R. A. (N. S.) 830.

16 Atchison, T. & S. F. R. Co. v. Butler, 43 P. 767, 56 Kan. 433; Chicago, R. I. & P. Ry. Co. v. Lost Springs Lodge, No. 494, I. O. O. F., 85 P. 803, 74 Kan. 847.

In a broker's action for commission, a special interrogatory inquiring, "Is it not a fact that E. W. B. only talked to plaintiff as a friend?" being negative and leading in form, was properly refused. McClintick v. Pyle, 137 P. 788, 91 Kan. 393.

In asking submission of special interrogatories, counsel should frame each question so as to present only a single, direct, and material fact, within the issues. Atchison, T. & S. F. R. Co. v. Aderhold, 49 P. 83, 58 Kan. 293; Hashman v. Wyandotte Gas Co., 111 P. 468, 83 Kan. 328.

Where a special question of fact is submitted to a jury, the wording of the interrogatory should be clear and concise, and of such a form that they can give a direct answer thereto. City of Guthrie v. Shaffer, 54 P. 698, 7 Okl. 459.

Where a special interrogatory is submitted to the jury it should be clearly stated, so that a direct answer may be given thereto. Drumm-Flato Commission Co. v. Edmisson, 87 P. 311, 17 Okl. 344, affirmed 28 S. Ct. 367, 208 U. S. 534, 52 L. Ed. 606.

Interrogatories that are calculated to mislead, confuse, or harass the jury should not be submitted. City of Lawton v. McAdams, 83 P. 429, 15 Okl. 412. It was never required that the jury answer a special interrogatory, which

17 Missouri Pac. Ry. Co. v. Holley, 1 P. 130, 30 Kan. 465, rehearing denied 1 P. 554, 30 Kan, 474.

Permitting the withdrawal by plaintiffs of a list of special questions of fact, after their submission to the jury, is not prejudicial error, where the special questions submitted by defendant were not framed with reference to those withdrawn by plaintiffs, and it does not appear that defendant was otherwise prejudiced by the withdrawal.18

A failure to compel an answer is, in effect, a withdrawal of the question, and is the same as though the court had refused to submit it in the first instance.19 However, the refusal to require the jury to answer a special question already answered, "We do not know," does not constitute or amount to a withdrawal of such question.20

Where a great many special findings of fact are submitted to a jury, the court may withdraw from its consideration some of such special findings after they have been submitted, where the same findings are embodied in such special findings as have already been found by the jury.21

§ 1209. Special findings

"In all jury trials, the jury shall return a general verdict, and no law in force, nor any law hereafter enacted, shall require the court to direct the jury to make findings on particular questions of fact; but the court may, in its discretion, direct such special findings." 22

The answers to special interrogatories submitted to a jury should be direct and positive.23

A finding of probative facts is sufficient, if the ultimate facts necessarily result therefrom.24

not only inquired into a nonessential fact, but which was undefined and uncertain as to time. Drumm-Flato Commission Co. v. Edmisson, 208 U. S 534, 28 S. Ct. 367. 52 L. Ed. 606, affirming 17 Okl. 344, 87 P. 311.

18 Missouri Pac. Ry. Co. v. Moffatt, 55 P. 837, 60 Kan. 113, 72 Am. St Rep. 343.

19 Burr v. Honeywell, 51 P. 235, 6 Kan. App. 783.

20 Smart v. Mayer, 103 Kan. 366, 175 P. 159.

21 Smith v. Wilson, 48 P. 436, 5 Kan. App. 379.

22 Const. Okl. art. 7, § 21.

23 Winfield Nat. Bank v. McWilliams, 60 P. 229, 9 Okl. 493.

24 Severy v. Chicago, R. I. & P. Ry. Co., 50 P. 162, 6 Okl. 153.

Jury's findings that person killed at public crossing could have seen ap

An answer to a special question "We do not know," is equivalent to "No." 25

When a jury return evasive and unsatisfactory answers to certain special questions submitted to them, and to others make answers that are not supported by any evidence, and persist in such a course, after objection is made to such answers by counsel, and after admonition by the court, it is a good and sufficient cause for a reversal of the case and the granting of a new trial.20

The answers must be signed by the jury or the foreman in the same manner as a general verdict.27

Answers to special questions should be directly responsive,20 and not evasive or contrary to the evidence.29

proaching interurban car in time to warn driver of vehicle in which she was riding at 132 feet, and at 82 feet, and as to her range of vision at lesser distances, answering, "Can't say," and "Doubtful," did not establish contributory negligence as matter of law. Schaefer v. Arkansas Valley Interurban Ry. Co., 104 Kan. 394, 179 P. 323.

A finding that a wife had authorized husband to have proceeds of draft placed to his credit was qualified by a further finding that such authority had been conferred by the delivery to him of the draft, which was made payable to collecting bank, and hence to amount to a mere conclusion of law. Reynolds v. National Bank of Commerce of Wichita, 104 Kan. 215, 178 P. 605.

Where petition alleged that fire resulted from negligence in operating engine and in not providing sufficient spark arresters, and jury found fire due to careless handling of engine or defective condition of smokestack, as required by evidence, it was not necessary to support verdict that jury agree as to which act of negligence caused fire. Smith v. Bush, 102 Kan. 150, 169 P. 217.

In buyer's action for breach of contract for shipment of wheat, special findings as to whether contract terms were fully agreed upon, and whether seller objected to buyer's indicated time of shipment, held not to show passion or prejudice. Wallingford Bros. v. McCray, 101 Kan. 146, 165 P. 813. 25 Iowa City State Bank v. Claypool, 137 P. 949, 91 Kan. 248. 20 St. Louis, Ft. S. & W. R. Co. v. Willis, 16 P. 728, 38 Kan. 330.

27 Where answers to several interrogatories are not signed by the jury or by their foreman, they constitute no part of the verdict. City of Kingfisher v. Altizer, 74 P. 107, 13 Okl. 121.

28 It is court's duty on request of either party to require an answer to a special question to be made directly responsive to the question. Smart v. Mayer, 103 Kan. 366, 175 P. 159.

In action against city for injuries received by reason of defective sidewalk, answer to interrogatory as to how plaintiff received her injury held sufficiently responsive. Evans v. City of Hutchinson, 162 P. 342, 99 Kan. 477. 29 Anders v. Atchison, T. & S. F. Ry. Co., 137 P. 966, 91 Kap. 378.