Lee v. Knight, 36849

• Court: Missouri Court of Appeals
• Writing for the Court: ALDEN A. STOCKARD; SMITH, C.J., and NORWIN D. HOUSER
• Citation: Lee v. Knight, 538 S.W.2d 345 (Mo. App. 1976)
• Decision Date: 11 May 1976
• Docket Number: No. 36849,36849
• Parties: Dorothy LEE and Edward Lee, Plaintiffs, v. Joseph KNIGHT, Jr., Defendant-Respondent, Alice Coleman, n/k/a Alice Mabry, Defendant, Cross-Claimant-Appellant. . Louis District, Division Four

Page 345

538 S.W.2d 345

Dorothy LEE and Edward Lee, Plaintiffs, v. Joseph KNIGHT, Jr., Defendant-Respondent Alice Coleman, n/k/a Alice Mabry, Defendant, Cross-Claimant-Appellant.

No. 36849.

Missouri Court of Appeals, St. Louis District, Division Four.

May 11, 1976.

Jack Gallego, Troy, Mo., for appellant.

Kortenhof & Ely, Frank E. Strzelec, St. Louis, for respondent.

Glennon T. Moran, St. Louis, for plaintiffs.

ALDEN A. STOCKARD, Special Judge.

Plaintiff Dorothy Lee was a passenger in an automobile operated by defendant Alice Coleman, subsequently remarried and hereinafter referred to as Alice Mabry, which was involved in a collision with an automobile operated by defendant Joseph Knight, Jr. She brought suit against the operator of each automobile for personal injuries, and in a separate count her husband sought damages for loss of consortium. Defendant Mabry filed a cross-claim against defendant Knight in which she sought damages for personal injuries sustained in the same collision. Before the trial of the Lees' causes of action, by agreement of all the parties, the cross-claim was severed and a separate trial was ordered.

Plaintiffs' case was submitted to the jury on the issue of primary negligence on the part of defendant Mabry in failing to keep a careful lookout, and on the part of defendant Knight in failing to yield the right of way. A verdict was returned against each defendant, and judgment was entered thereon.

Thereafter trial was had on defendant Mabry's cross-claim, and the case was submitted to the jury on the issue of the failure of defendant Knight to keep a careful lookout, or in driving at an excessive speed, or in failing to yield the right of way. Defendant Knight submitted contributory negligence on the part of cross-claimant Mabry in failing to keep a careful lookout. The jury returned a verdict in favor of cross-claimant Mabry, and judgment was entered thereon. Thereafter defendant Knight filed a motion for 'judgment in accordance with motion for directed verdict,' and assigned as a reason therefore that cross-claimant Mabry was 'conclusively negligent as a matter of law by reason of the verdict returned in this case in the claim of Dorothy and Edward Lee against Alice (Mabry) and Joseph Knight, Jr., in that, in this case, a jury deciding the Lee claim held that both (Mabry) and Knight were negligent,' and that that 'verdict acts as a final determination of the negligence of the parties, becomes the law of the case, and is res adjudicata on the issue of Alice (Mabry's) negligence.' The trial court sustained this motion and entered judgment for defendant Knight. Cross-claimant Mabry has appealed. We reverse with directions.

We consider the issue presented on this appeal to be governed by Page v. Hamilton, 329 S.W.2d 758 (Mo.1959). There the plaintiff obtained a judgment against joint tortfeasors based on humanitarian negligence. As to defendant Crowe the negligence submitted was the failure to slacken the speed of his automobile and to swerve to the right. Defendant Crowe filed a cross-claim against defendant Hamilton, and plaintiff's cause and the cross-claim were tried together. Cross-claimant Crowe submitted primary negligence on the part of Hamilton in that he failed to drive his automobile as close to the right side of the highway as possible, and Hamilton submitted contributory negligence on the part of Crowe in that he could have seen Hamilton's automobile enter the travel lane in time thereafter to have avoided the collision by slackening speed and swerving his automobile to the right. The jury returned a verdict in favor of plaintiff and against both defendants in plaintiff's case, and in favor of cross-claimant Crowe and against defendant Hamilton on the cross-claim. The trial court held the verdict to be inconsistent because the negligent act which the jury was required to find in order to return a verdict for plaintiff against defendant Crowe consisted of the identical contributory negligence submitted with respect to Crowe's cross-claim against Hamilton. The verdicts of plaintiff for Crowe as to liability were set aside and a new trial ordered. On appeal the Missouri Supreme Court said: 'Absent the filing of a cross-claim the right of the defendant inter sese would not have been adjudicated because ordinarily a judgment in favor of a plaintiff does not determine the relative rights or liabilities of codefendants unless their hostile or conflicting claims are actually brought into issue by pleadings and are litigated and determined.' The court further commented: 'This points up one of the perplexing questions of the case; that is, whether a result, legally acceptable when achieved by different verdicts in separate trials on the same set of facts, becomes erroneous because of inconsistency when accomplished by a general verdict in a single trial of separate causes of action joined in the same suit * * *.' (Italics added.) The court also stated: 'If the same general verdicts had been returned in separate trials of plaintiff's action and defendant Crowe's cross-claim under instructions before us (that is, those instructions which were given), there could not be any legal inconsistency; that is, no inconsistency justifying setting either or both of the verdicts aside.' This above result is in accord with the majority rule as set forth in an annotation entitled 'Judgment in Action Against Codefendants for Injury or Death of Person, or for Damage to Property, As Res Judicata in Subsequent Action Between Codefendants as to their Liability Inter Se.' 24 A.L.R.3d 318. See particularly § 10(a) of that annotation.

Respondent Knight relies primarily on McGuire v. Southwestern Greyhound Lines, Inc., 291 S.W.2d 621 (Mo.App.1...