The proof and findings of the jury as a basis for their general verdict should correspond with the averments in the pleadings.30 Inconsistency

§ 1212.

"When the special finding of facts is inconsistent with the general verdict, the former controls the latter and the court may give judgment accordingly."

31

A verdict not in accordance with special findings by jury will be set aside,32 unless the conflict lies in a special finding of no con

30 Atchison, T. & S. F. R. Co. v. Owens, 50 P. 962, 6 Kan. App. 515.

A special finding which clearly shows that the jury must have based their verdict on a theory of the case radically different from that contended for by the prevailing party, and not involved in the issues submitted for their determination, will authorize a reversal of the judgment. Aultman & Taylor Machinery Co. v. Wier, 74 P. 227, 67 Kan. 674.

Allegations in an action for injury to a passenger that the carrier allowed the spikes to become loose in the ties, and for that reason the rails were not held firmly in place, and that the carrier failed to employ the best known methods of keeping its track in a safe condition, thus causing the train to leave the track, are sustained by findings of the jury that the spikes were loose in the ties, and that in making use of soft wood ties not sufficient to hold the spikes the carrier failed to use the best methods of keeping its track and roadbed in a safe and proper condition. Chicago, R. I. & P. Ry. Co. v. Brandon, 95 P. 573, 77 Kan, 612.

31 Rev. Laws 1910, § 5014.

82 Missouri, K. & T. Ry. Co. v. Bussey, 71 P. 261, 66 Kan. 735; Chase v. Bank of Horton, 59 P. 39, 9 Kan. App. 186.

Where a jury, in answer to special questions, makes certain general findings which are contradicted by other special findings of fact in detail, the general findings are controlled by the special findings. Chicago, B. & Q. Ry. Co. v. Laughlin, 87 P. 749, 74 Kan. 567.

Special findings of fact, where inconsistent with the general verdict, control, and the general verdict should be set aside. Stanley v. Atchison, T. & S. F. Ry. Co., 96 P. 34, 78 Kan. 87. Where in an action against a railroad for damages for the partial tearing down of a fence and leaving it in an unsafe condition, in consequence of which cattle escaped, the jury found a general verdict for plaintiff, but in answer to a special question found that both plaintiff and defendant were guilty of negligence, in answer to other special questions that plaintiff was not guilty of contributory negligence and in answer to another question that he was guilty of contributory negligence, the court properly set aside the general verdict, but erred in rendering judgment for defendant, and should have granted a new trial. Id.

When the evidence and findings of the jury show that the defendant has wholly failed to establish his counterclaim for damages against a cause of action confessed in favor of the plaintiff, the latter is entitled to judgment, notwithstanding a general verdict for the defendant. Heyman v. Simmons, 45 P. 728, 4 Kan. App. 1.

Special findings of jury control their verdict, and although a finding is

33

trolling importance, or comes within the rule that where the general verdict and the special findings can be harmonized by construing the same liberally, it is the duty of the court so to do, and can only disturb the general verdict where there is no reasonable hypothesis under which they can be harmonized.34

set aside, because without support in the evidence, the court, under Code Civ. Proc. § 294 (Gen. St. 1915, § 7194), may render judgment on remaining special findings notwithstanding the verdict, where the discarded finding does not conflict with, or impair, the force of other findings which of themselves settle substantial issues. Hurt v. Stout, 105 Kan. 54, 181 P. 623. The filing of a motion for a new trial within three days after the verdict is returned, following the filing of a motion for judgment on the special findings, which remains undetermined, does not operate as a waiver, of the motion for judgment on the findings. Id.

Upon an appeal from the award of commissioners in a condemnation proceeding, where the special findings of fact of the jury, stating the damages allowed to the landowner, are inconsistent with the general verdict, the former control. St. Louis, Ft. S. & W. R. Co. v. McAuliff, 23 P. 102, 43 Kan. 185.

In order to separate water and other foreign substances from natural gas flowing through its pipe, a company maintained a drip pipe into which the gas from the conveying pipe could be released by a valve. A boy playing with the appliance, a wrench having been left on the valve, turned the valve, and the force of the gas killed him. The father who recovered damages for his death was found to have known that escaping gas was dangerous to persons inhaling the same, and to have known the use of the pipes and appliances. Held not sufficiently inconsistent with the general verdict to warrant a judgment notwithstanding the verdict. Lewellen v. Kansas Natural Gas Co., 116 P. 221, 85 Kan. 117.

A general verdict for plaintiff, based on testimony that defendants in the exercise of reasonable diligence should have known of a defect which caused the injury, is not overthrown by a special finding to the effect that defendants had no actual knowledge of the defect. Atchison, T. & S. F. Ry. Co. v. Allen, 88 P. 966, 75 Kan. 190, 10 L. R. A. (N. S.) 576.

Where the special findings of the jury are inconsistent with the general verdict the court should either render judgment in accordance with them, or set both findings and verdict aside. Rouse v. Youard, 41 P. 426, 1 Kan. App. 270.

33. The general verdict cannot be affected by an answer to a special interrogatory of no controlling importance. City of Topeka v. Noble, 58 P. 1015, 9 Kan. App. 171.

34 St. Louis & S. F. Ry. Co. v. Bryan, 119 P. 581, 29 Okl. 825.

Where the general verdict of a jury, and their special findings of fact, can be harmonized and made to agree by taking into consideration the entire record of the case, and construing the same liberally for that purpose, it is the duty of the court to so harmonize them. Bevins v. Smith, 21 P. 1064, 42 Kan. 250.

Special findings are to be construed, wherever possible, to harmonize with the general verdict. Needles v. Wichita Park Amusement Co., 104 Kan. 716, 180 P. 768; St. Louis & S. F. Ry. Co. v. Ritz, 6 P. 533, 33 Kan. 404; Solomon

A judgment will be reversed where important findings of fact are inconsistent with each other and with the general verdict; 35 but

R. Co. v. Jones, 8 P. 730, 34 Kan. 443; MacElree v. Wolfersberger, 52 P. 69, 59 Kan. 105; Missouri, K. & T. Ry. Co. v. Bussey, 71 P. 261, 66 Kan. 735. A general verdict will not be set aside on account of special questions, where the answers thereto are not contradictory to the general verdict, but are consistent therewith. Winans v. Chapman, 104 Kan. 664, 180 P. 266. The general verdict must stand where the answers to special questions, when properly interpreted so as to support that verdict, are consistent therewith and do not contradict each other. Burzio v. Joplin & P. Ry. Co., 171 P. 351, 102 Kan. 287, 562, L. R. A. 1918C, 997.

In an action on a note which is on its face barred by the statute of limitations, a special verdict that the amount of the note in suit, with interest, is a certain sum, is not inconsistent with a general verdict for defendant, and it is not error to enter judgment on the general verdict. Smith v. Beeler, 29 P. 1087, 48 Kan. 669.

An order admitting a will to probate, even if erroneous, is not rendered void by reason of an incorrect determination by the court of the domicile of deceased. Dunsmuir v. Coffey, 82 P. 682, 148 Cal. 137.

A general verdict for defendant in an action on a note brought in 1887 is not in conflict with special findings that defendant executed the note in 1861, that the amount due at the time of the verdict is a sum named, but that no payment has ever been made on the note; for under the findings the note is barred by limitation. Lemon v. Dryden, 23 P. 641, 43 Kan. 477.

Findings in an action for injuries from a collision between plaintiff's buggy and defendant's automobile held consistent with each other and with the general verdict. Hoffman v. Charlett, 155 P. 953, 97 Kan. 553.

Where special findings in husband's action for fatal injury to wife at interurban railway crossing did not establish wife's contributory negligence, as matter of law, a general verdict consistent therewith must stand. Schaefer V. Arkansas Valley Interurban Ry. Co., 194 Kan. 394, 179 P. 323.

35 Cole v. Atchison, T. & S. F. Ry. Co., 139 P. 1177, 92 Kan. 132; Hauck V. Valley Falls Mercantile Co., 163 P. 457, 99 Kan. 790.

Where special findings are inconsistent with one another, one showing a right to a verdict and the other showing the contrary, the judgment will be reversed. Willis v. Skinner, 130 P. 673, 89 Kan. 145.

Where a jury, in an important special finding, disregard all of the testimony introduced, and make a finding upon a subject calling for particular knowledge or experience, without any evidence to support it, such finding not only affects the other special findings, but may also affect the correctness of the general verdict, when the evidence in the case is conflicting. Union Pac. Ry. Co. v. Shannon, 6 P. 564, 33 Kan. 446.

Where, in an action for assault, no punitive damages were found, findings allowing $100 for actual damages, $1,000 for pain and suffering, and $2,700 for permanent injury were inconsistent where the "actual" damages included expenses for attorney's fees, which the instructions did not allow unless exemplary damages were allowed. Eckerd v. Weve, 118 P. 870, 85 Kan. 752, 38 L. R. A. (N. S.) 516.

In an action for malicious prosecution of a civil action, the jury returned a general verdict for plaintiff, and answered in the affirmative that before

mere inconsistency between the special findings themselves is not necessarily fatal to the general verdict, unless the findings are wholly inconsistent, or destructive of the prevailing party's right to recover; 38 nor do special findings control the general verdict,

37

action brought defendant had stated the facts fully to an attorney, who advised him to sue, and the action was brought on such advice. One of the jurors stated that such was not his answer to the question, and refused to stand by it. Thereupon the jury was discharged, and judgment rendered for plaintiff. Held. that the judgment should be set aside. Emory v. Eggan, 88 P. 740, 75 Kan. 82.

36 McCook v. Kemp, 59 P. 1100, 10 Kan. App. 381.

Though there are inconsistent answers to special findings, the supreme court will not disturb the general verdict, where the trial court sustained it. Missouri Pac. R. Co. v. Holley, 1 P. 130, 30 Kan. 465, rehearing denied 1 P. 554, 30 Kan. 474.

In one finding the jury found the several amounts of the items of counterclaim set up in defendant's answer; in another, the aggregate amount allowed him thereon. This aggregate exceeded the sum of the items. Held, that the court, in rendering judgment on the special findings, properly gave defendant the benefit of the larger amount. Gill v. Buckingham, 52 P. 897, 7 Kan. App. 227.

An immaterial special finding of fact on a question not at issue, inconsistent with all the other findings, is not an obstacle to the rendition of such judgment as is warranted by the findings upon the issues joined. Bank of Topeka v. Miller, 51 P. 964, 7 Kan. App. 55, judgment reversed 54 P. 1070, 59 Kan. 743.

On the contest of a will, where the tribunal found against the contestants on all the issues raised by them, the fact that it also found upon an issue not embraced in the pleadings of the contest, or that in such case there was no finding declaring the will valid as holographic, will not affect the validity of the probate of the will. In re Learned's Estate, 11 P. 587, 70 Cal. 140.

37 Where findings are wholly inconsistent a judgment on the verdict cannot stand. Morse v. Ryland, 57 P. 104, 60 Kan. 859; Waterman v. Smith, 54 P. 506, 8 Kan. App. 464; Dickerson v. Waldo, 74 P. 505, 13 Okl. 189.

A judgment cannot be rendered on inconsistent findings of the jury. A new trial must be had. Shoemaker v. St. Louis & S. F. Ry. Co., 2 P. 517, 30 Kan. 359; Ellsworth, M. N. & S. E. Ry. Co. v. Maxwell, 18 P. 819, 39 Kan. 651. Where the material findings of a jury are contradictory, and insufficient to sustain the general verdict, the judgment, based thereon, will be reversed. Latshaw v. Moore, 36 P. 342, 53 Kan. 234.

38 Where the special findings are inconsistent with each other, and destructive of plaintiff's right of recovery, the court should enter judgment thereon for the defendant. Missouri, K. & T. Ry. Co. v. Bussey, 71 P. 261, 66 Kan, 735.

Judgment may not be rendered contrary to the general verdict sustaining several defenses to an action, on special findings of fact, unless the special findings defeat each defense. First Nat. Bank of Garden City v. Stroup, 164 P. 1054, 100 Kan. 17, 444.

unless the inconsistency between the two compels such result.39 However, when the special findings of fact are inconsistent with the general verdict, the former control the latter, and the court may give judgment accordingly.*

40

Where the special findings are contrary to the evidence, evasive and inconsistent, unfair and partial, the general verdict will be set aside, though approved by the trial court."1

Where a question of inconsistency arises between findings made in answer to special questions and a general verdict, nothing will be

39 Tarin v. Atchison, T. & S. F. Ry. Co., 158 P. 874, 98 Kan. 605. Special findings will not control general verdict, unless so inconsistent as to show that the jury gave no intelligent attention to evidence or questions, or that there was a mistrial. Missouri Pac. Ry. Co. v. Holley, 1 P. 130, 30 Kan. 465, rehearing denied 1 P. 554, 30 Kan. 474.

In an action to recover damages for personal injuries, a special finding of fact by the jury that the plaintiff was damaged "by reason of her incapacity to perform labor in the sum of three hundred dollars" is not inconsistent with the general verdict of $500, inasmuch as the capacity to perform labor is but one of the elements which the jury was entitled to consider in assessing damages for the plaintiff. City of Guthrie v. Thistle, 49 P. 1003, 5 Okl. 517.

40 Gripton v. Thompson, 4 P. 698, 32 Kan. 367; Clark v. Missouri Pac. Ry. Co., 11 P. 134, 35 Kan. 350; Atchison, T. & S. F. R. Co. v. Morgan, 22 P. 995, 43 Kan. 1; Leavenworth, N. & S. Ry. Co. v. Wilkins, 26 P. 16, 45 Kan. 674; Phelps & Bigelow Windmill Co. v. Buchanan, 26 P. 708, 46 Kan. 314; School Dist. No. 46 of Lyon County v. Lund, 33 P. 595, 51 Kan. 731; Garth v. Board of Com'rs of Edwards County, 66 P. 999, 63 Kan. 755; Beech v. Missouri, K. & T. Ry. Co., 116 P. 213, 85 Kan. 90; Choctaw, O. & W. R. Co. v. Castanien, 102 P. 88, 23 Okl. 735.

Where the jury returned in their special findings that the actual damages of the plaintiff by reason of her injuries were $300, and it was not claimed that the plaintiff was entitled to exemplary damages, a general verdict of $700 cannot be sustained; it not appearing with any certainty what the amount in the excess of the $300 was given for. Atchison, T. & S. F. R. Co. v. Harvey, 3 P. 568, 31 Kan. 750.

In an action to foreclose a lien, and recover the value of a windmill erected by plaintiff on land of defendant, the value of the improvement was expressly fixed, in an order admitted to have been executed by defendant, at $221.29. Such order required plaintiff, on notice of the failure of the mill to work well, to make it so work. The jury found specially that the mill was constructed according to the contract, and that, while it did not work well at first, plaintiff upon notice remedied the defects; and they found a general verdict for plaintiff for $98.44. Held, that on the special findings plaintiff was entitled to judgment for the full amount fixed by the order. Phelps & Bigelow Windmill Co. v. Buchanan, 26 P. 708, 46 Kan. 314.

41 Atchison, T. & S. F. R. Co. v. Brown, 7 P. 571, 33 Kan. 757; Kansas Pac. Ry. Co. v. Peavey, 8 P. 780, 34 Kan. 472; Chicago, I. & K. R. Co. v. Townsdin, 15 P. 889, 38 Kan, 78.