Wilson v. St. Francis Hospital & School of Nursing, Inc. , 190 Kan. 150 ( 1962 )

Robb, J.

(dissenting): G. S. 1949, 60-2918, would unquestionably control this case if special question No. 1 and the answer thereto were standing alone. However, in my opinion, special question No. 2 and its answer cannot be totally ignored. As a matter of fact, it is the only question asked of the jury regarding the negligence of defendant and it plainly and unambiguously states that defendant’s negligence was “that the results of the sensitivity test were not read.” All the medical testimony was based on the proposition that the card record kept in the emergency room of defendant showed the sensitivity test had a negative result but such testimony also had to be based on the fact that plaintiff’s arm had been looked at and the results of the test read. It clearly appears the jury believed the testimony of plaintiff and did not believe that defendant’s employees had either looked at or read the results of the sensitivity test on plaintiff’s forearm. Plaintiff’s own testimony showed that he did not know anything about tetanus antitoxin shots, skin tests, or what he should expect in the event of either a positive or negative reaction, but he did testify as to the results as they appeared to him. If the jury saw fit to believe his testimony, it also heard the testimony of the experts who explained positive and negative reactions, and concluded that the answer to special question No. 1 had to be that the evidence to determine whether the sensitivity test was positive or negative was “nonconclusive.” Inherent in the answer to special question No. 2 is the charge of negligence on the part of the defendant that it failed to look at the results of the skin test. In my view this is equivalent to having administered no skin test at all. Therefore, I cannot agree with defendant that the failure to read and determine the results of the sensitivity test was not negligence toward the plaintiff. In Sparks v. Guaranty State Bank, supra, this court in determining the answers to special questions there involved were not inconsistent with the general verdict, stated:

“This court, if possible, will give such a construction to answers to special questions as will bring them into harmony with the general verdict. Also, in considering answers to special questions to the jury, the court will not isolate one answer and place a constrained interpretation thereon, ignoring others, but will consider all of them together. If one interpretation leads to inconsistency and the other to harmony with the general verdict, the latter will be adopted. In order to sustain a motion for judgment on the findings, it is not sufficient that there be some inconsistency among the findings. They must be so contrary to the general verdict as to clearly compel the court to overthrow the verdict and render a contrary judgment as a matter of law. [Citations].” (pp. 167, 168.)

See, also, 5 Hatcher s Kansas Digest, rev. ed., Trial, § 312, and 1961 Supp. thereto p. 65; 9 West’s Kansas Digest 1, Trial, § 359 (2), and 1962 Cum. Pocket Part thereto p. 130.

A recent expression of the cardinal rule followed by this court is to be found in Epple v. Kress & Co., 187 Kan. 452, 357 P. 2d 828, where it was said:

“A general verdict imports a finding upon all issues in the case not inconsistent with the special findings. Special findings are to be construed liberally with a view to ascertaining the intention of the jury, and are to be given the meaning intended even though unsldllfully expressed, and liberality of construction should be indulged in order to avoid inconsistency between the findings and the verdict and to uphold the verdict.” (Syl. ¶ 1.)

See, also, 5 Hatcher’s Kansas Digest, rev. ed., Trial, § 306, and 1961 Supp. thereto p. 65; 9 West’s Kansas Digest 1, Trial, § 365 (2), and 1962 Cum. Pocket Part thereto pp. 132-133.

In Isle v. Kaw Transport Co., 159 Kan. 110, 152 P. 2d 827, it was said:

“It is true a finding by the jury that defendant was guilty of negligence in a certain particular amounts to a finding that it was not guilty of other negligence charged. There is another rule to the effect that one answer to a special question may acquit of negligence and another may find defendant negligent. Furthermore where several questions are submitted to a jury, the answers to all of them will be construed together, and where one construction leads to a conclusion that the answers to the special questions are consistent with the general verdict and another that the questions are inconsistent with it, the former will be adopted. See Sams v. Commercial Standard Ins. Co., 157 Kan. 278, 139 P. 2d 859, and cases therein cited. Juries have the right to apply their own common sense and general knowledge.” (p. 113.)

I would affirm the judgment of the district court.

Wertz and Jackson, JJ., join in the foregoing dissenting opinion.