Garland v. National Super Markets, Inc.
| Decision Date | 20 August 1985 |
| Docket Number | 49179,Nos. 48995,s. 48995 |
| Citation | 696 S.W.2d 342 |
| Parties | Alberta GARLAND, Plaintiff-Appellant, v. NATIONAL SUPER MARKETS, INC., Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Mark I. Bronson, Joseph Bauer, St. Louis, for plaintiff-appellant.
Ann Hamilton, St. Louis, for defendant-respondent.
Plaintiff appeals from the entry of judgment in her favor in the sum of $1,500. We affirm.
Plaintiff was injured when she slipped and fell while shopping at defendant's grocery store. The facts are not material to the sole issue involved in this appeal.
The case was tried and submitted to the jury under comparative fault instructions and verdict forms. MAI 22.03, MAI 32.01(1), MAI 35.13. After deliberation, the jury returned to the courtroom with a verdict form signed by all twelve jurors finding in favor of plaintiff in the sum of $10,000 and assessing percentages of fault at 15% for plaintiff and 85% for defendant. The trial judge immediately ordered the jury to be polled. During this procedure, the following dialogue occurred:
After all of the jurors had been polled and before addressing the questions raised by these three jurors, the trial judge stated:
THE COURT: Ladies and gentlemen of the jury, your verdict will be received and recorded. The record will show that the jury has been polled and each of the jurors has acknowledged that it's her verdict or his verdict. Now, I can talk to you thereafter about what this means. This means that what the jury has by its verdict, has found that the total amount of injuries, total damages that she has sustained for personal injuries is ten thousand dollars, and that the percentages of fault as follows, is the plaintiff, fifteen percent; and the National Super Markets, eighty-five percent. So the Court then will have to enter a judgment in favor of plaintiff in the amount of ten thousand, less fifteen percent, is what it means.
In oral argument before this court, plaintiff's attorney admitted that upon this statement by the trial judge, the jurors all spoke up at once. "It was chaotic" was his candid description of the conduct of the jurors. The court reporter was able to transcribe the following:
With no further statement to the jury the court immediately ordered a bench conference with counsel. Thereafter, over the objection of plaintiff's attorney, the court ordered a re-polling of the jury, specifically requesting the jurors to answer whether or not they agreed to all three components of the verdict form they had signed. Nine of the twelve responded negatively. The court then sent the jurors to the jury room and had a new verdict form prepared and delivered to them. The jurors then returned the verdict form having filled out the blanks by finding in favor of plaintiff for $10,000.00 and assessing percentages of fault at 85% for plaintiff and 15% for defendant. This form was signed by nine jurors and upon a third polling of the jury, nine confirmed that this was their verdict. The trial court then entered judgment in favor of plaintiff for $1,500.
Plaintiff filed a post-trial motion entitled "motion for judgment entered pursuant to jury verdict," asking the court to enter judgment in the amount of $8,500. This motion was denied and plaintiff appeals.
Defendant challenges the sufficiency of plaintiff's post-trial motion, contending that it preserves nothing for appellate review. It is true that motions for new trial and for judgment notwithstanding the verdict are only authorized after trial motions under Missouri rules of civil procedure. Rule 78.07 and Rule 72.01(b); Hopkins v. North America Company, etc., 594 S.W.2d 310, 317 (Mo.App.1980); Elmore v. Whorton, 581 S.W.2d 950, 951 n. 1 (Mo.App.1979); Milner v. Texas Discount Gas Company, 559 S.W.2d 547, 550 (Mo.App.1977). If, however, as argued by plaintiff, the trial court had no alternative but to enter judgment in accordance with the first verdict form returned by the jury, the court's failure to do so and the entry of judgment based upon the second verdict form would be plain error requiring our consideration under Rule 84.13(b). Accordingly, we decline to rule this matter on purely procedural grounds and look to the merits of plaintiff's appeal.
The sole point asserted by plaintiff is that the court erred in failing to enter judgment based upon the original verdict form because the setting aside of this verdict was erroneously based upon impeachment of a verdict by the jurors. We disagree.
The fallacy of plaintiff's argument is that there was no verdict to impeach.
A verdict has been described as the '... definitive answer given by the jury to the court concerning the matters of fact committed to the jury for their deliberation and determination.' State v. Casey, 338 S.W.2d 888, 891 (Mo.1960). Webster's Third New International Dictionary defines 'definitive' to mean '... serving to supply a final answer....' A verdict is the final decision of a jury. Because the verdict must represent the final decision of the jury, the court and jury must establish that the jury intends that its decision be final. Therefore, before a jury decision is considered final and a 'verdict', it must be submitted to the court, accepted by it and assented to by the jury, and recorded by the court. Lummi Bay Packing Co. v. Kryder, 263 S.W. 543, 545 (Mo.App.1924). This procedure affords the jury ample opportunity to correct any misunderstanding, realize the finality of its decision and finally assent to a verdict.
State ex rel. Vogel v. Campbell, 505 S.W.2d 54, 56-57 (Mo. banc 1974).
Here the first "verdict" was not assented to by the jury and was never recorded by the court. That the paper signed by the jury does not become a verdict until these steps have been accomplished is emphasized by the Supreme Court in Vogel and in a companion case, State ex rel. Ford Motor Company v. Godfrey, 505 S.W.2d 59, 61 (Mo. banc 1974).
Here, plaintiff points to the words of the trial judge after the first polling of the jury, "Your verdict will be received and recorded," and argues, in effect, that these words dropped the curtain on the proceedings rendering all that occurred thereafter a nullity. Such an argument is based upon superficial appearances ignoring the absence of substantive reality underlying the surface. During the polling of the jury, the trial judge completely foreclosed the expressions of three jurors indicating doubts, questions and reservations about the form of the verdict. He demanded a "yes or no" answer, but promised Thus, the experienced and conscientious trial judge committed himself to proceeding in two steps--first, the obtaining of a "yes or no" answer regarding signatures on the verdict form, and second, exploration of the questions raised by some jurors. We are inclined to accept defendant's suggestion that his words amounted to no more than a perfunctory expression habitually used over the course of many years in order to signal the termination of the polling procedure. This conclusion finds support in...
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...must be submitted to the court, accepted by it and assented to by the jury, and recorded by the court. Garland v. National Super Markets, Inc., 696 S.W.2d 342, 344 (Mo.App.1985). No verdict exists until the above mentioned procedure has been fulfilled. State ex rel. Ford Motor Company v. Go......
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