concurring in part and dissenting in part: This case is an excellent example of the classical statement that “. . . the history of special verdicts is a rocky road strewn with, innumerable wrecks.’” (James, Civil Procedure, § 7.15, p. 294.) The wreck here resulted from the district court’s own special questions, combined with erroneous Instruction No. 9. I concur in the court’s reversal of this case, but must respectfully dissent from its order directing that judgment be entered in favor of the appellant.
Special findings are to be liberally construed on appeal and interpreted in the light of testimony with the view of ascertaining their intended meaning. (Bott v. Wendler, 203 Kan. 212, 218, 453 P. 2d 100.) In view of all the facts and circumstances disclosed in the record, the district court’s interpretation and approval of the special verdict and the entry of judgment thereon, and erroneous Instruction No. 9, the case should be remanded to the district court with directions to sustain the defendant’s alternate motion to set aside the answers to the jury’s special verdict, and grant a new trial.
Fontron and Fromme, J J., join in the foregoing concurring and dissenting opinion.