Douglass v. Safire

• Decision Date: 17 June 1986
• Docket Number: No. 67778,67778
• Citation: 712 S.W.2d 373
• Parties: Glenda Mae DOUGLASS (now Richey), Plaintiff-Respondent, v. George SAFIRE, Defendant/Third Party Plaintiff-Appellant, v. Michael RICHEY, Third Party Defendant-Respondent.
• Court: Missouri Supreme Court

Page 373

712 S.W.2d 373

Glenda Mae DOUGLASS (now Richey), Plaintiff-Respondent, v.George SAFIRE, Defendant/Third Party Plaintiff-Appellant, v.Michael RICHEY, Third Party Defendant-Respondent.

No. 67778.

Supreme Court of Missouri En Banc.

June 17, 1986.

James C. Johns, William J. Cason, Michael X. Edgett, Fred R. Bunch, Clinton, for defendant/third partyplaintiff-appellant.

Stanley Brian Cox, Sedalia, for plaintiff-respondent.

BLACKMAR, Judge.

Glenda Mae Douglass(now Richey) sued George Safire on account of injuries she sustained in a collision between his automobile and the motorcycle on which she was riding.Safire brought a third-party action against Michael Richey, the operator of the motorcycle, and now Glenda's husband.She then amended her complaint to seek a judgment against Michael.

The jury returned a verdict in favor of Glenda and against Safire and Michael, signed by nine jurors and reading as follows:

VERDICT A

Note: Complete this form by writing in the name required by your verdict.

On the claim of plaintiffGlenda MaeDouglas Richey against defendantGeorge Safirewe, the undersigned jurors, find in favor of:

/s/ Glenda MaeDouglas Richey

---------------------------------------------------

(PlaintiffGlenda Mae or (DefendantGeorge Safire)

Douglas Richey) Note: Complete the following paragraph only if the above finding is in favor of plaintiffGlenda MaeDouglass Richey.

We, the undersigned jurors, find the damages of plaintiffGlenda MaeDouglas Richey to be as follows:

For personal injuries $60,000.00 (stating the amount or, if none, write the word, 'none').

Note: Complete by writing in the percentage of fault you assess to each of those named below.If you believe any of those named below is not at fault, write in 'zero' for that percentage.The total of the percentages you assess must be 100%.

We, the undersigned jurors, assess the percentages of fault as follows:

Glenda Mae Douglas Richey    0%
                                           ----
                George Safire               85%
                                           ----
                Michael Richey              15%
                                           ----
                Total                      100%
                                           ----
                

On Safire's third party claim, a verdict signed by all 12 jurors was returned, in the following terms:

VERDICT B

Note: Complete this form by writing in the name required by your verdict.

On the claim of Third PartyPlaintiffGeorge Safire for property damage against Third Party DefendantMichael Richey, we, the undersigned jurors, find in favor of:

Michael Richey

Third PartyPlaintiffThird Party Defendant

George SafireMichael Richey

Note: Complete the following paragraphs only if the above finding is in favor of Third PartyPlaintiffGeorge Safire.

We, the undersigned jurors, find the total property damages of Third PartyPlaintiffGeorge Safire to be $__________ (stating the amount).

Note: Complete by writing in the percentage of fault you assess to each of those named below.If you believe any of those named below is not at fault, write in 'zero' for that percentage.The total of the percentages you assess must be 100%.

Third Party Plaintiff George Safire    ___%
                Third Party Defendant Michael
                  Richey                               ___%
                                                TOTAL  100%
                

There was no request that the jury be returned for further consideration.The verdicts were duly recorded and the court entered judgments on them.Defendant Safire appealed, raising a total of nine points.The Court of Appeals, Western District, reversed and remanded for new trial by a divided vote, considering only the point that the verdicts were inconsistent.We granted transfer and now retransfer the case under guidance of this opinion.

We now hold that 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 possible.

Safire cites cases in which it is apparently held that error may be predicated on an inconsistent verdict even though the appealing party made no request that the jury be returned.¹He would place the...