Jenkins v. McShane, 9689

Decision Date29 July 1976
Docket NumberNo. 9689,9689
Citation539 S.W.2d 752
PartiesCarlos JENKINS and Bobby D. Van Stavern, Plaintiffs-Respondents, v. Larry McSHANE and Dona McShane, Defendants-Appellants.
CourtMissouri Court of Appeals

Gerald H. Lowther, J. Douglas Cassity, Robert W. Freeman, Lowther, Cassity, Ferguson, Carnahan & Freeman, Springfield, for defendants-appellants.

John A. Honssinger, Low & Honssinger, Lebanon, for plaintiffs-respondents.

Before STONE, P.J., and HOGAN and FLANIGAN, JJ.

STONE, Presiding Judge.

This appeal arises in a suit on a promissory note in the principal sum of $22,500 (with interest from date at seven percent per annum and a reasonable attorney's fee if placed in the hands of an attorney for collection) given by defendants to plaintiffs on April 15, 1969, in a transaction involving the sale of two used automatic car wash systems to defendants. By their answer, defendants admitted execution of the note and appropriate demand for payment. However, alleging a fraud had been worked on them in that the age and condition of the car wash equipment had been materially misrepresented, defendants denied the validity of the note. The pleadings and testimony indicate that only some $1,500 in interest, and nothing on principal, had been paid to plaintiffs under the terms of the note. At the time of trial, a sum in excess of $29,000 allegedly was due and owing on that instrument.

After trial to a jury, and due deliberation, a unanimous verdict was returned in the following form:

'We, the jury, find the issues in favor of the plaintiffs and assess their damages at $ no principal, and $ no interest, and $1,000 attorneys fee, being the total sum of $1,000.'

During an ensuing colloquy between court and counsel, the correctness and consistency of the verdict were discussed. At that time, counsel for defendants argued that the verdict was 'impossible' and the jury should be sent 'back out' to prepare and 'return another verdict.' On the other hand, counsel for plaintiffs urged acceptance of the verdict 'as it is presented' and declared '(i)t is in proper form.' Commenting that 'I don't think I can do anything but to (sic) accept their verdict,' the court proceeded to do so and discharged the jury. Apparently regarding the verdict as a general finding for plaintiffs, the court subsequently sustained plaintiffs' timely motion for new trial but limited the new trial to the sole issue of damages.

No ground or grounds on which the new trial was granted or so limited were stated of record as then required by Rule 78.01, V.A.M.S. (now Rule 78.03). Although defendants did not require plaintiffs to prepare the original brief on appeal as they might have done under Rule 84.05(b), nevertheless under that rule the burden of overcoming the presumption of error in granting the motion for new trial shifted to and here rests upon plaintiffs. Curtis v. Curtis, 491 S.W.2d 29, 32--33(3) (Mo.App.1973). In this connection, see Artstein v. Pallo, 388 S.W.2d 877, 880(1) (Mo.banc 1965), where as here defendant had appealed from an order granting to plaintiff a new trial on the issue of damages only.

Plaintiffs undertake to carry their burden by pointing to their scanty motion for new trial and the 'obvious' truth of the reasons stated therein. 1 The correctness of the court's action is grounded, by plaintiffs' argument, on the unsupported assertion that an award of an attorney's fee must be accompanied by a finding of some amount due and owing on the note, a proposition which 'requires no citation of authority.' This, coupled with the purported general finding for plaintiffs, is offered as ample support for the order now placed before us for review. On the other hand, defendants now press us to leave the verdict, and the judgment entered thereon, undisturbed. Neither side attends the fundamental conflict between that portion of the verdict which found the issues in favor of plaintiffs and that portion which found nothing, either principal or interest, due on the note.

In Boone v. Richardson, 388 S.W.2d 68, 76--77(17) (Mo.App.1965), this court, in a situation strongly analogous to that presented on the present appeal, observed that the trial court apparently had construed the jury's verdict as a general finding for plaintiff since a new trial was granted on the issue of damages only:

'(U)pon careful consideration, it is our view that the verdict returned is not merely equivocal or uncertain; the jury's finding of the issues for the plaintiff flatly contradicts its finding that the plaintiff suffered no damages whatever. To take either the first clause ('we * * * find the issues in favor of the plaintiff and against the defendant') or the second ('and assess plaintiff's damages at the sum of $0') as the true judgment of the jury is to disregard the balance of the sentence. The verdict cannot be fairly resolved into a definite finding for either party, and therefore it will not support the entry of any judgment. (Citing numerous cases)'

In a situation such as that under consideration, the parties are entitled to an unconditional verdict (Boone v. Richardson, supra, 388 S.W.2d 76(14)), and primarily it is the responsibility of the court to require correction of a defective verdict by the jury. Thorne v. Thorne, 350 S.W.2d 754, 759 (Mo.1961); Stroud v. Govreau, 495 S.W.2d 682, 684--685(3) (Mo.App.1973). No entry of judgment on a null verdict is possible. MFA Cooperative Ass'n of Ash Grove v. Elliott, 479 S.W.2d 129, 133(2) (Mo.App.1972); Boone v. Richardson, supra, 388 S.W.2d at 76--77(12, 16). The defect in the present verdict is not merely one of form as opposed to substance. E.g., Bunch v. Crader, 369 S.W.2d 768, 775 (Mo.App.1963). Neither is the jury's intent so clear that 'all that is needed are slight changes in form to accord with the jury's conclusion actually reached.' Haas Baking Co. v. Luzio, 512 S.W.2d 428, 430(3) (Mo.App.1974).

In the present case, the jury could have found the issues generally for plaintiffs only as authorized by their verdict-directing instruction 3, which required, inter alia, findings that defendants 'received good and valuable consideration' for the note in suit and 'that the note is due and unpaid.' Upon a finding of the issues submitted in instruction 3, plaintiffs' instruction 4 mandated an award to them of 'such sums as damages as you believe plaintiffs are owed by defendants by the terms of the note . . ..' Manifestly, the aberrant, anomalous verdict returned by the jury was impermissible under the court's instructions and, in returning that verdict, the jury patently ignored not only the stated instructional requirements for a plaintiffs' verdict but also the instructional directions concerning the amount to be awarded to plaintiffs in the event of a verdict for them.

Although we cannot escape the conclusion that the verdict could have no proper legal standing whatever, we are met by defendants' argument that 'plaintiff (sic) waived any defect in the verdict or error in the trial when plaintiff (sic) failed to make timely objection to the form of the jury verdict as rendered and to the verdict being accepted by the court . . ..' However, failure to preserve complaint by timely and...

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6 cases
  • Bank of Kirksville v. Small, 69148
    • United States
    • Missouri Supreme Court
    • December 15, 1987
    ...from the face of the verdict or which incorporate two or more contradictory findings. 2 An example is found in Jenkins v. McShane, 539 S.W.2d 752 (Mo.App.1976) where the jury found for plaintiffs on their suit to enforce a promissory note but awarded damages in the amount of zero dollars an......
  • Todd v. St. Ann's School Music Service, Inc.
    • United States
    • Missouri Court of Appeals
    • July 17, 1979
    ...to require the jury to return a verdict on each claim submitted, Thorne v. Thorne, 350 S.W.2d 754 (Mo.1961); See Jenkins v. McShane, 539 S.W.2d 752, 754 (Mo.App.1976); and, although counsel's inaction may waive defects in verdicts which have minor irregularities or ambiguities, e. g., Bunch......
  • Buus v. Stocker Oil Co.
    • United States
    • Missouri Court of Appeals
    • November 24, 1981
    ...to the form of a verdict came too late when it was asserted for the first time in the motion for new trial. They include Jenkins v. McShane, 539 S.W.2d 752 (Mo.App.1976); Scott v. Allstate Ins. Co., 537 S.W.2d 838 (Mo.App.1976); Cobb v. Cosby, 416 S.W.2d 222 (Mo.App.1967); Bunch v. Crader, ......
  • Campbell v. Kelley
    • United States
    • Missouri Supreme Court
    • November 18, 1986
    ...dissenting opinion of DONNELLY, J. DONNELLY, Judge, dissenting. I would reverse and remand for trial of all issues. Jenkins v. McShane, 539 S.W.2d 752 (Mo.App.1976). I respectfully ...
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