Opinion
Quiat & Quiat, P.C., Ethan A. Jacobson, Denver, for plaintiffs-appellants.
No appearance on behalf of defendant-appellee.
PIERCE, Judge.
Plaintiffs brought suit against defendant Ostdiek on a theory of assault and battery and against other defendants on a theory of negligence, to recover for personal injuries received in an altercation between plaintiff Robert Navarre and Ostdiek.
At trial, a special verdict from was submitted to the jury in the form of twenty-five interrogatories. From the answers to these interrogatories, it is clear that the jury absolved the other defendants of any liability, and plaintiffs make no appeal as to that disposition. However, the trial court interpreted the answers to the interrogatories as also absolving Ostdiek from liability, and plaintiffs appeal from that determination. We reverse.
I
Plaintiffs first contend that the special verdict from was ambiguous and prejudicial to the plaintiffs. We agree. Those portions of the interrogatories which pertain to defendant Ostdiek contain a mixture of questions, some of which are pertinent to the allegations of assault and battery and others which contain terms associated with claims of negligence not pertinent to him. This mixture obviously confused the jurors, as the answers they submitted fail to indicate with any degree of certainty whether or not they intended to award a verdict to the plaintiffs.
II
Plaintiffs also allege that some of the interrogatories alluded to the defense of assumption of risk which the jury might have interpreted as defeating plaintiffs' right of recovery from Ostdiek, as well as from the defendants charged with negligence. Assumption to risk as a defense in a negligence action is not a proper defense to the intentional torts of assault and battery. Furthermore, even the defense of consent is not applicable where the parties have engaged in mutual combat in breach of the peace. Condict v. Hewitt, 369 P.2d 278 (Wyo.).
Plaintiffs argue that since the interrogatory with respect to assumption of risk was improper, and since the responses of the jury to the interrogatories relative to self-defense indicated a rejection of that defense, the special verdict represents a finding by the jury in favor of the plaintiffs. However, the jury's response to the improper question with regard to assumption of risk indicates that it may have intended to find for the defendant.
The interrogatories used were confusing and ambiguous. It is impossible to determine who the jury intended should prevail from the responses it rendered. Furthermore, this court is not permitted to isolate and ignore particular interrogatories, but must consider them together, Knape v. Livingston Oil Co., 193 Kan. 278, 392 P.2d 842, and where the answers to the interrogatories are inconsistent with respect to the controlling facts in the case, any judgment entered on the special verdict must be set aside and the case remanded for a new trial. Rohr v. Henderson, 207 Kan. 123, 483 P.2d 1089.
It is also clear from a perusal of the answers to the interrogatories that if the jury intended to award damages to the plaintiffs, as the answer to the damages interrogatory might indicate, the amount rendered cannot be justified under the damages instruction which was submitted to them with the interrogatories.
For these reasons, we reverse and remand for a new trial on all issues pertaining to the defendant, Steve Ostdiek, under the claim for relief for assault and battery. Since an assault and battery claim concerning only one defendant will be involved upon the retrial of this matter and the facts of this particular case do not lend themselves to special findings, general verdict forms, rather than special interrogatories, should be submitted to the jury. Barton v. Jensen, 19 Utah 2d 196, 429 P.2d 44.
COYTE and SMITH, JJ., concur.