Burnett v. Griffith, 69147

• Decision Date: 17 November 1987
• Docket Number: No. 69147,69147
• Parties: Karl E. BURNETT, Appellant-Respondent, v. Roger GRIFFITH, East Hills Merchants Association, and Belt Highway Investment Company, Respondents-Appellants.
• Court: Missouri Supreme Court

Page 712

739 S.W.2d 712

Karl E. BURNETT, Appellant-Respondent, v. Roger GRIFFITH, East Hills Merchants Association, and Belt Highway Investment Company, Respondents-Appellants.

No. 69147.

Supreme Court of Missouri En Banc.

Nov. 17, 1987.

George A. Barton, Kansas City, Robert B. Randolph, St. Joseph, for respondents-appellants.

Ronald M. Sokol, St. Joseph, for appellant-respondent.

HIGGINS, Justice.

Karl Burnett sued Roger Griffith, a security guard, and Griffith's employers, East Hills Merchants Association and Belt Highway Investment Company, for assault, false imprisonment and malicious prosecution. On the assault count the jury returned a verdict for Burnett and against the three defendants, awarding $1,500 in actual damages. On the false imprisonment and malicious prosecution claims, the jury found in favor of defendant Griffith, but against East Hills and Belt Highway, awarding actual damages of $5,000 and $20,000, respectively, on those counts.

On his appeal to the

Missouri Court of Appeals, Western District, Burnett alleges the trial court erred in failing to submit an instruction on punitive damages to the jury. Defendants, Griffith and East Hills also appeal, arguing that they were entitled to a judgment notwithstanding the verdict on all counts. Defendants argue the trial court should have granted their motion for judgment notwithstanding the verdict on Burnett's false imprisonment claim because the verdict was inconsistent in that the jury returned verdicts exonerating Griffith, the employee, but holding against East Hills, the employer.

Defendants assert that the verdicts on the malicious prosecution count also inconsistently exonerated Griffith while holding against East Hills and allege this error entitled them to judgment notwithstanding the verdict. East Hills further argues it was entitled to a judgment notwithstanding the verdict on the malicious prosecution count because it did not encourage, instigate or advance the prosecution of Burnett.

On the assault count, East Hills argues the trial court erred in denying its motion for judgment notwithstanding the verdict because plaintiff failed to establish that East Hills had the right to control Officer Griffith who was allegedly acting in his capacity as a St. Joseph Police Officer when he allegedly assaulted Burnett. Defendants further allege the trial court erred when it denied East Hill's motion for judgment notwithstanding the verdict and Griffith's motion for a directed verdict on the assault count because Griffith followed proper police procedure in using only that force reasonably necessary to effectuate the arrest.

The case was transferred to this Court by the Western District prior to opinion for a determination whether the rule of Douglass v. Safire, 712 S.W.2d 373 (Mo. banc 1986), is applicable in the circumstances of this case. The Douglass rule requires a party to object to inconsistent verdicts before the jury is discharged, or waive the error. In this case the Douglass rule is alleged to be in conflict with McGinnis v. Chicago, R.I. & P. Ry. Co., 200 Mo. 347, 98 S.W. 590 (1906). McGinnis holds that when a claim is submitted on the theory of respondeat superior and the jury returns inconsistent verdicts, exonerating the employee, but holding against the employer, the court must grant the employer judgment notwithstanding the verdict.

A reading of these cases reveals that no conflict exists between them. The Douglass rule applies only in cases where the inconsistent verdicts would necessitate a new trial. In this case, a new trial is unnecessary on the false imprisonment count because the McGinnis doctrine requires a judgment notwithstanding the verdict on that count. On the malicious prosecution count there is no conflict because the McGinnis doctrine does not apply to claims which base liability on a theory other than respondeat superior. Accordingly, this case is retransferred to the court of appeals for resolution of the case consistent with this opinion.

This suit stems from an incident at East Hills Shopping Center in St. Joseph. East Hills is owned by Belt Highway Investments and occupied by members of the East Hills Merchants Association. On July 9, 1983, Burnett and three other men were in the East Hills parking lot near Burnett's automobile outside of the Ground Round, a restaurant Burnett had visited. Griffith drove up on his motorcycle and requested that the group leave the parking lot. At the time of the incident, Griffith was in the private employ and on the payroll of East Hills. Griffith was also a police officer of the City of St. Joseph. He was at least partially attired in his police uniform at the time of the incident. In response to Griffith's request, Burnett said he could not leave because Griffith's motorcycle was parked behind his car. The affair escalated and ultimately Burnett was arrested, taken to police headquarters and charged with disorderly conduct and willful misuse of premises, both municipal ordinance violations. Burnett was tried on these charges and acquitted.

I.

East Hills contends the trial court erred in denying East Hills' motion for judgment notwithstanding the verdict on Burnett's claims for false imprisonment. The motion was based on the contention that East Hills as the employer could not be held liable under the theory of respondeat superior when Griffith, the employee, had been exonerated. East Hills cites a number of cases commencing with McGinnis v. Chicago R.I. & P. Ry. Co., 200 Mo. 347, 98 S.W. 590 (1906), and ending with Moran v. North County Neurosurgery, Inc., 714 S.W.2d 231 (Mo.App.1986), all holding that where the cause of action against the employer is based on the doctrine of respondeat superior and the wrongful act of the employee, exoneration of the employee operates to exonerate the employer. Williams v. Venture Stores, Inc., 673 S.W.2d 480, 482 (Mo.App.1984).

There is no question that the "McGinnis Doctrine" is the law in Missouri and that the jury was properly instructed under that doctrine on the false imprisonment claim. Had the instructions been followed and applied they would not permit a verdict on a claim based on the theory of respondeat superior and the wrongful acts of the employee that inconsistently exonerates the employee but holds against the employer. In this situation, the error is normally rectified by entry of judgment in favor of the employer notwithstanding the verdict. Williams v. Venture Stores, Inc., 673 S.W.2d 480, 482 (Mo.App.1984) (citing McGinnis ).

Burnett argues that the McGinnis rule does not apply because East Hills waived its right to a judgment in its favor by failing to object to the verdict at the time it was returned in open court and cites Douglass v. Safire, 712 S.W.2d 373 (Mo. banc 1986). The record confirms that East Hills made no protest about the inconsistent verdicts until the motion for judgment notwithstanding the verdict filed March 4, 1986, two weeks after the court had entered judgment on the verdict. The record also reflects that Burnett failed to object to the inconsistent verdict.

In order to determine if this is a case where the Douglass rule applies it is necessary to examine the reasoning supporting and the cases applying that rule. In Douglass, claims were made for injuries and property damage arising out of a motorcycle-automobile collision. Douglass, a passenger on the motorcycle, sued Safire, the driver of the car. Safire cross-claimed against Richey, the driver of the motorcycle. An apportionment of fault instruction was given the jury for both claims. The verdict for Douglass found Safire 85% at fault and Richey 15% at fault. On Safire's property damage claim, however, the jury returned a verdict for Richey, a finding consistent only with assessment of 100% fault against Safire. There was no objection raised to this inconsistency until Safire's post-trial motion. This Court held:

[A] claim that a verdict is inconsistent to the point of being self-destructive must be presented to the trial court before the jury is discharged. Otherwise the claim of inconsistency will be held to have been waived. The reason is that, if the point is raised as soon as the verdict is returned, any error is capable of correction by ordering the jury to return for further deliberation. Our holding is in accord with the usual rule that the trial court must be given the opportunity to correct error while correction is still...