Cosgrove v. Stange

• Decision Date: 22 May 1916
• Parties: HENRIETTA C. COSGROVE, Appellant, v. HENRY F. STANGE and MISSOURI FIDELITY AND CASUALTY COMPANY, Respondents
• Court: Missouri Court of Appeals

183 S.W. 691

194 Mo.App. 14

HENRIETTA C. COSGROVE, Appellant, v. HENRY F. STANGE and MISSOURI FIDELITY AND CASUALTY COMPANY, Respondents

Court of Appeals of Missouri, Springfield

May 22, 1916

Appeal from Jasper County Circuit Court.--Hon. F. L. Forlow, Special Judge.

AFFIRMED.

Judgment affirmed.

A. L Thomas and H. W. Blair for appellant.

Owen & Davis and R. M. Sheppard for respondents.

FARRINGTON J. Robertson, P. J. and Sturgis, J., concur.

OPINION

FARRINGTON, J.

Plaintiff (appellant) being the owner of a lot in the business section of the city of Joplin, Mo., on June 9, 1913, let a contract to defendant Stange for the erection of an office building on said lot, the defendant Missouri Fidelity and Casualty Company executing defendant Stange's contractor's bond as surety.

On May 6, 1914, the plaintiff filed her petition in the circuit court of Jasper county against Stange and his surety on the bond asking damages for failure of defendant Stange to construct the building according to contract, the items of damage being as follows: $ 2500 account defective cement floors, $ 75 account defective wooden floor, $ 200 account paint, $ 250 account plaster, $ 533.14 account materialmen's liens which had been filed against plaintiff, $ 900 account delay in completion and delivery of building to plaintiff, and other items, the aggregate amount asked in plaintiff's petition being $ 7743.

The defendants each filed answer, defendant Stange's answer containing a counterclaim in the sum of $ 698.69; to each of which answers the plaintiff filed a reply.

The case was tried to a jury and the issues as to each of the several items above enumerated and set forth in the plaintiff's petition were submitted to the jury as against both defendants, as shown by the numerous instructions set forth in the appellant's abstract. The jury on February 25, 1915, returned into court two verdicts in favor of the defendants, one for $ 500 and the other for $ 160, as follows:

"We the jury find the issues for the defendants, and assess the damages at the sum of $ 160. C. W. Power, Foreman."

We the jury find the issues in favor of the defendants and against the plaintiff on defendant's counterclaim and assess his damages in the sum of $ 500. C. W. Power, Foreman."

The court properly refused to accept these verdicts, and, over the objection and exception of the plaintiff, sent the jury to its room for further consideration. [See Ver Steeg v. Becker-Moore Paint Co., 106 Mo.App. 257, 287, 80 S.W. 346; Kreibohm v. Yancey, 154 Mo. 67, 83, 55 S.W. 260.] The jury later returned into court the following verdict:

"We the jury find the issues in favor of the defendant on defendant's counterclaim and assess the damages at the sum of $ 660. C. W. Power, Foreman."

The plaintiff in due time filed her motions for new trial and in arrest of judgment, and afterwards the defendant Stange entered a remittitur of $ 160, and a judgment for $ 500 was entered in his favor. Plaintiff's motions were overruled and the case is here on her appeal, plaintiff's position being that the jury made no finding as to the plaintiff's cause of action nor as to all of the parties to the suit, and that plaintiff's motion in arrest of judgment should have been sustained by the trial court as the verdict is insufficient to support any judgment.

There is but one assignment of error--as follows: "The trial court erred in overruling the plaintiff's motion in arrest of judgment in this case."

So far as the record before us stands we will assume that there was evidence introduced by the plaintiff to sustain the allegations of her petition and that there was evidence introduced by the defendants that would sustain a verdict in their favor; also that there was evidence introduced by the defendant Stange that would sustain a verdict for him on his counterclaim and that there was evidence introduced by the plaintiff which would sustain a verdict in her favor on said counterclaim.

No error is charged in the giving and refusal of instructions. In this respect we have noted that the plaintiff asked instructions based solely on her theory of her cause of action stated in the petition, and that the defendants asked instructions based solely on a defense to plaintiff's cause of action; in none of the instructions of either side was any mention made of the counterclaim, nor was there any instruction advising the jury as to the form of verdict they would render on their findings as to the two causes of action.

It is contended here that because the last verdict returned by the jury on which the judgment is based failed to include a finding for or against plaintiff on her cause of action contained in the petition, the judgment is erroneous and that under the authorities the error is reversible.

We do not agree with the plaintiff (appellant) in this contention, but hold that where it is apparent from the verdict and record presented in a given cause that the jury considered and passed on the issues raised on each cause of action stated by the pleadings, it is not reversible error for the jury to fail to make a specific finding on each cause of action. That this is the rule, laid down in the following cases, is beyond question: Nowell v. Mode, 132 Mo.App. 232, 111 S.W. 641; Plymouth Cordage Co. v. Yeargain, 87 Mo.App. 561; Sickles Saddlery Co. v. Bullock, 86 Mo.App. 89; Hackworth v. Zeitinger, 48 Mo.App. 32; Taylor v. Short, 38 Mo.App. 21; Lindsey v. Nagel, 157 Mo.App. 128, 137 S.W. 912.

It is held in the case last cited, reviewing a number of decisions, that under section 1993, Revised Statutes 1909, it is not necessary for the jury to make a specific finding on the counterclaim; and in that opinion the court approves the holding in Plymouth Cordage Co v. Yeargain, supra, wherein a judgment was rendered on defendant's counterclaim in his favor almost identical in form with the one rendered in our case.

Without analyzing the facts, in some of the cases cited by the appellant there is an apparent conflict of decision on this question.

In Winkelman v. Maddox, 119 Mo.App. 658, 95 S.W. 308, the St. Louis Court of Appeals held that a verdict which left out of account the defendant's counterclaim failed to respond to the pleadings and that a judgment rendered thereon must be reversed. In that case it will be noted that the plaintiff recovered and it was the defendant who was objecting because the jury did not determine the issue presented by him in his counterclaim. And there is no difference, in principle whether the jury fails to mention the plaintiff's cause of action where they find on defendant's counterclaim, or whether it fails to find on the counterclaim and find on plaintiff's cause of action, because each party as to the cause of action presented by him stands in precisely the same position. However, it is not apparent in that case what the counterclaim grew out of--that is, whether it is one that is permitted to be filed under...