Dailey v. City of Columbia

• Decision Date: 19 November 1906
• Citation: 97 S.W. 954,122 Mo. App. 21
• Parties: DAILEY v. CITY OF COLUMBIA.
• Court: Missouri Court of Appeals

97 S.W. 954

122 Mo. App. 21

DAILEY v. CITY OF COLUMBIA.

Kansas City Court of Appeals. Missouri.

November 19, 1906.

Rehearing Denied December 3, 1906.

TRIAL—VERDICT—RESPONSIVENESS TO ISSUES.

Where, in an action against a city and others for damages to plaintiffs' property by reason of the change of the grade of an alley on which the property abutted, the court directed a verdict in favor of the individual defendants, and the verdict was "for plaintiff," and objection was made to the verdict on motion for a new trial, and in arrest of judgment, a judgment in favor of plaintiff and against the city, would be reversed on the city's appeal.

Appeal from Circuit Court, Boone County; A. H. Waller, Judge.

Action by James J. Dailey against the city of Columbia. From a judgment in favor of plaintiff, and against the city, it appeals. Reversed and remanded.

Rothwell, Gillespy & Conley, for appellant. Webster Gordon, for respondent.

ELLISON, J.

The action in this case is for damages alleged to have been done to plaintiff's property by the same work prosecuted by the city in an alley in the rear of Mr. McMillen's property, this plaintiff owning property on the same alley. What we said in reference to defendant having waived its motion to make plaintiff's petition more definite and certain by answering to the merits applies to this case. An examination of the authorities there cited will show the correctness of our ruling. It, however, appears that the plaintiffs not only sued the defendant city, but also included as joint defendants five individuals, charging all as guilty of the wrong which worked the injury alleged. At the close of the evidence, the trial court gave a peremptory instruction (to which plaintiffs took exception) directing the jury to find a verdict for the five individuals. The cause was then submitted to the jury by instructions. The jury returned a general verdict as follows: "We the jury, find for the plaintiff and assess the damages at $75.00." Passing by the point that the verdict was in the singular when there were two plaintiffs we are compelled to heed the objection as to the defendants. The case as stated and the issues as made up for trial were against all of the defendants. The case as made out by the evidence failed, in the view of the trial court, as against the individual defendants, and a peremptory instruction to find for them was given over the protest of the plaintiffs. The verdict should have disposed of the case as to those defendants. It has been many times ruled that it is fatal unless a verdict is responsive to or covers all the isues submitted. It may do this in a broad and general way in most instances, but in all cases it must in some way be responsive. Fenwick v. Logan, 1 Mo. 401; Easton v. Collier, 1 Mo. 421; Hickman v. Byrd, 1 Mo. 495; Parker's Adm'r v. Moore, 29 Mo. 218; Wood et al. v. McGuire et al., 17 Ga. 361, 63 Am. Dec. 246; Patterson v. United States, 2 Wheat. (U. S.) 221, 4 L. Ed. 224; Davidson v. Bond, 12 Ill. 84; Barbour v. White, 37 Ill. 171; Holmes v. Wood, 6 Mass. 1. In Wood et al. v. McGuire et al., supra, there was, as in this case, a peremptory instruction. The trial court, in that case, directed a verdict against one of the plaintiffs, which the jury either failed or refused to heed in the verdict rendered. That...