Stafford v. Fidelity Hail Insurance , 162 Kan. 75 ( 1946 )

Burch, J.

(dissenting in part): I agree that there was evidence which justified the jury in finding the amount of damage to the wheat but when the jury determined the amount of the damage to the oats it simply looked out into the misty, foggy sky of speculation and fixed its eyes upon a fancied figure. There was evidence that the oats had been damaged by hail. Consequently, it cannot be said that appellee did not prove that the oats were damaged at all. There was evidence introduced also as to the amount the oats eventually made to the acre. However, no witness was asked to give an estimate of the amount of damage to the oats and no testimony was introduced showing what the average yield of undamaged oats may have been in the vicinity when similar soil, moisture and other conditions existed. We are not justified in assuming that the jury was made up of farmers who had particular .knowledge — not general knowledge — as to the essential facts. Appellee failed to introduce evidence which justified the jury, in answering the question as to the amount of damage to the oats in any manner other than “We don’t know.” Appellant was not required to furnish the omitted information and is entitled, at léast, to a new trial limited to a proper determination of the answer to such a question if it wants one.