Chuning v. Calvert, 25225

• Citation: 452 S.W.2d 580
• Decision Date: 02 February 1970
• Docket Number: No. 25225,25225
• Parties: Rudy CHUNING et al., Appellants, v. William CALVERT, Respondent.
• Court: Court of Appeal of Missouri (US)

Page 580

452 S.W.2d 580

Rudy CHUNING et al., Appellants, v. William CALVERT, Respondent.

No. 25225.

Kansas City Court of Appeals, Missouri.

Feb. 2, 1970.

Motion for Rehearing and/or Transfer to Supreme Court Denied

April 6, 1970.

Galen Knowlton, Michael Drape, Knowlton & Drape, Kansas City, for appellants.

Charles R. Svoboda, Kansas City, for respondent.

SHANGLER, Presiding Judge.

Plaintiff Rudy Chuning, a Kansas City, Missouri fireman sued defendant William Calvert for damages for personal injuries which he attributed to a collision caused by defendant's negligence. At the time of the collision, the defendant was driving his automobile. The plaintiff was then occupying a fire-fighting truck which was responding to a fire call from St. Luke's Hospital. Among the elements of damage pleaded by plaintiff Chuning as part of his cause of action were those for permanent injuries, pain and suffering, expenses of treatment and medication, loss of earnings and impairment in ability to work. Thereafter, Kansas City, Missouri, was granted leave to intervene as a party plaintiff on the pleaded theory that, by force of certain provisions of the City's Administrative Code, it was both required to pay plaintiff certain sums for lost wages and medical expenses and was also subrogated to plaintiff Chuning's right to recover against the defendant to the extent of such payments. Thus, by their pleadings, both plaintiffs sought recovery for medical expenses and loss of earnings; plaintiff Chuning for all of it, plaintiff City to the extent of its payments. Neither plaintiff Chuning nor defendant Calvert formally disputed the City's right to intervene for this purpose. Even on this appeal, the validity of the order allowing intervention and the procedures followed at the trial in consequence of it are not questioned.

Evidence was heard and the issues raised by both petitions were submitted to the jury. After some deliberation, the jury returned a single verdict, which was refused by the court. They were returned to the jury room after the court directed that they 'read the instructions again * * * particularly the one having to do with the forms of verdict'. That effort at a verdict is not recorded verbatim. Outside the presence and hearing of the jury, however, the court informed counsel 'all that they brought down was one verdict, and that was a verdict for the City, $459.08. They didn't follow the instructions'.

After additional deliberation, the jury returned two verdicts, as authorized by the forms of verdict instruction, No. 8 (MAI 36.08 Multiple Plaintiffs (Consolidated Cases) vs. Defendant), in each case, unanimous:

'We, the jury, find the issues in favor of the plaintiff, Kansas City, Missouri, and do assess its damages at $459.08. Signed, James P. Lacy, Foreman.'

And,

'We the jury, find for the plaintiff, Rudy Chuning, and in view of the fact that Chuning was paid for loss of wages and medical expenses arising out of this accident, being paid by the City of Kansas City, assess his damages at nothing. Signed, James P. Lacy, Foreman.'

The court received these verdicts with the comment: 'Gentlemen, I have received your verdicts, and you didn't exactly, at least in part, follow the forms suggested by the Court, but it is not necessary as long as the intent of your verdict is clear. The Court believes that the intent of the jury is clear in returning this verdict--or these verdicts.' These verdicts were received without demur or objection of counsel for Chuning or defendant Calvert, although the court explicitly invited their comment.

As revealed in the transcript, the judgment rendered by the court upon the verdicts reads in its entirety: 'WHEREFORE, it is ordered and adjudged by the Court that Kansas City, Missouri, have and recover from defendant the sum of Four Hundred Fifty-Nine and Eight One Hundreths ($459.08) Dollars, together with the costs of this cause and that execution issue therefor.' The judgment makes no mention of plaintiff Chuning, nor does it explicitly undertake to translate the jury's verdicts into a final determination of the rights between plaintiff Chuning and defendant Calvert. Chuning makes no complaint of it either on his new trial motion or on this appeal. Apart from an oblique reference to the incongruity of the jury's verdict in his favor (because of its inadequacy), plaintiff Chuning seemingly accedes to the legal sufficiency of the verdicts returned and does not question the judgment at all. And despite the rule that ordinarily (unless the trial court has expressly ordered a separate trial of an issue, Civil Rule 82.06 V.A.M.R.), an appealable judgment is one which disposes of all the parties and issues in the case (Sec. 511.020, V.A.M.S., Scheid v. Pinkham, Mo., 395 S.W.2d 166, 168), defendant Calvert does not question Chuning's right to prosecute this appeal or our jurisdiction to determine it. Mindful that the right to appeal is purely statutory, it is the duty of a reviewing court, nonetheless, to decide whether it is, in fact, a final judgment from which the appeal is being taken. Kansas City Power & Light Company v. Kansas City, Missouri, Mo., 426 S.W.2d 105, 107.

'A judgment is the final determination of the right of the parties in the action.' Sec. 511.020, V.A.M.S. In a jury case, it is the judge's determination of the case upon the verdict. 46 Am.Jur.2d, Judgments, Sec. 4, p. 316. Or, as it has otherwise expressed, in such a case '(a) verdict is the sole basis of the judgment'. Thorne v. Thorne, Mo., 350 S.W.2d 754, 757(1--3). As its rendition and entry are the culmination of a series of interrelated aspects of the litigation, it must be construed with reference to the record as a whole, including the pleadings, instructions, verdict and those matters required to be preserved by statute or rule of court. Rehm v. Fishman, Mo.App., 395 S.W.2d 251, 255; Caruthersville School Dist. No. 18 v. Latshaw, 360 Mo. 1211, 233 S.W.2d 6, 9. We look to the whole record, therefore, to learn whether the judgment intended to determine all of the issues between all of the parties to the litigation, or whether anything was left for future decision.

Reference to the record makes it at once clear that by its intervention, the plaintiff City was allowed to appropriate a portion of plaintiff Chuning's cause of action and assert it to judgment as its own. In their briefs, pleadings, and after trial motions, as well as in the court's Order Staying Execution (of judgment), the court and counsel described and treated the City's claim as 'derivative'. That is to say, the City's right to recover its payments to Chuning depended upon Chuning's right to recover from the defendant. The trial court's predicament resulted from a failure to instruct the jury as to the form of its verdict in the event it found damages for Chuning in an amount equal to the damages found for the City.

The jury returned two verdicts and the court rendered its judgment upon them. When the recovery of money is sought, the jury is required to return a general verdict. If the verdict is in favor of the plaintiff, it is required to assess damages if that issue has been submitted. Civil Rules 71.02, 71.06, V.A.M.R., Secs. 510.230, 510.270, V.A.M.S.; Haley v. Byers Trans. Co., Mo., 394 S.W.2d 412, 415. In this case, the jury returned a general verdict for plaintiff Chuning but 'assess(ed) his damages at nothing'. Had the court believed the verdict to have been unclear or defective, it could have required the jury to retire again to correct it or find a new verdict. Thorne v. Thorne, supra, 350 S.W.2d 757. This was the procedure the court adopted when it refused the initial, abortive effort of the jury. The trial court, however, received the verdicts and found 'the intent of the jury * * * clear in returning this verdict--or these verdicts'. The rendition and entry of judgment followed. From all this record information, it is reasonable to conclude that, as the issues were tried on the theory that the City's claim was 'derivative', when the jury returned verdicts in favor of both the City and Chuning, but assessed damages only for the City, the court construed the verdicts as having found those damages, in effect, for plaintiff Chuning. The judgment as entered, however anomalous, ¹ undertakes to give recognition to the City's claim of subrogation which, it happened, was equivalent to Chuning's total damages. In doing so, the judgment intended to finally determine all the issues between all the parties--Chuning, the City and Calvert--left nothing to be litigated, and is therefore appealable.

We still do not reach a consideration of the merits of plaintiff Chuning's appeal, however, for in the exercise of our duty to examine and determine whether we have jurisdiction of the subject matter presented, we find that as to one aspect of it, we do not. 20 Am.Jur.2d, Courts, Sec. 93, p. 453; In re Estate of Hill, Mo.App., 435 S.W.2d 722, 724. The trial court acted in excess of its jurisdiction when, by its order, it allowed Kansas City, Missouri to intervene as a party plaintiff although the 'Intervener's Petition for Damages' failed to state a claim upon which relief could be granted. Civil Rule 55.06, V.A.M.R.; Sec. 509.050, V.A.M.S. And it is of no moment that neither plaintiff Chuning nor defendant Calvert (other than perfunctorily in his Answer) questioned the court's power to make such an order, as jurisdiction, or its excessive exercise, cannot be conferred or validated by the acquiescence of counsel. See: Vol. 8, Missouri Digest, cases cited under 'Courts', k Nos. 22--25.

The cause of action asserted in plaintiff Chuning's petition was for damages for injuries to his person caused by the defendant Calvert's negligence. The essential elements of such a claim are negligence, causation and injury. Biscoe v. Kowalski, Mo., 290 S.W.2d 133, 138; 65 C.J.S. Negligence § 1(12), pp. 453--456. The items of resulting damage plaintiff...