Liggett v. Torregrossa

• Decision Date: 02 February 1982
• Docket Number: Nos. 42201,42263 and 42300,42202,s. 42201
• Citation: 628 S.W.2d 927
• Parties: Nelson C. LIGGETT, Defendant-Appellant, v. Sherry TORREGROSSA, Plaintiff-Respondent. RIGHTER TRUCKING COMPANY, Defendant-Appellant, v. August V. TORREGROSSA and Sherry Torregrossa, Plaintiffs-Respondents. August V. TORREGROSSA and Sherry Torregrossa, Plaintiffs-Appellants, v. Nelson C. LIGGETT and Righter Trucking Company, Defendants-Respondents. August V. TORREGROSSA and Sherry Torregrossa, Plaintiffs-Appellants, v. RIGHTER TRUCKING COMPANY, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 927

628 S.W.2d 927

Nelson C. LIGGETT, Defendant-Appellant, v. Sherry TORREGROSSA, Plaintiff-Respondent.

RIGHTER TRUCKING COMPANY, Defendant-Appellant, v. August V. TORREGROSSA and Sherry Torregrossa,

Plaintiffs-Respondents.

August V. TORREGROSSA and Sherry Torregrossa, Plaintiffs-Appellants, v. Nelson C. LIGGETT and Righter Trucking Company,

Defendants-Respondents.

August V. TORREGROSSA and Sherry Torregrossa, Plaintiffs-Appellants, v. RIGHTER TRUCKING COMPANY, Defendant-Respondent.

Nos. 42201, 42202, 42263 and 42300.

Missouri Court of Appeals, Eastern District, Division Four.

Feb. 2, 1982.

Mark G. Arnold, Husch, Eppenberger, Donohue, Elson & Cornfeld, Charles E. Merrill, St. Louis, for defendant-appellant.

Melvin Heller, Jay Burns, Clayton, Richard Wuestling, St. Louis, for plaintiff-respondent.

SMITH, Presiding Judge.

These appeals arise from an action for personal injuries caused by an accident on I-70 in the City of St. Louis. Some exposition of the facts is required to understand the matters before us on appeal.

Defendant Mosley was driving on an overpass on I-70 over Buchanan Street, when he lost control of his vehicle and collided with the guardrail on the overpass. It was raining and the road was slick. Mosley testified he had a blow out which combined with the wet pavement to cause the loss of control. Plaintiff, Gus Torregrossa, in a car following Mosley, avoided the Mosley vehicle but his automobile was struck by fiberglass material from the Mosley vehicle. Torregrossa then pulled his automobile to the right side of the road and stopped. His vehicle was stopped either on the overpass or on the shoulder beyond the overpass. This fact was disputed. He left his car and went back to the location of the Mosley vehicle. A short time after the original accident, a tractor-trailer, owned by defendant Righter Trucking Company, and driven by its admitted employee and agent, Liggett, arrived at the scene. The truck was unable to stop and struck the Mosley car, ¹ then the Torregrossa car, and came to rest on the left side of the westbound highway protruding over or through the guardrail separating that portion of the highway from the eastbound lanes. When he became aware of the approaching tractor-trailer, Torregrossa was, by his evidence, standing with Mosley and Mosley's companion on a narrow concrete sidewalk next to the right guardrail. The tractor-trailer came within inches of the position of Torregrossa, Mosley and Mosley's companion. In some manner Torregrossa ended up hanging by his hands from the guardrail over Buchanan Street, 25 feet below. Mosley and another unidentified man pulled Torregrossa back up to the highway. Torregrossa was not struck by the truck and sustained rather minor physical injuries, but there was evidence he sustained serious emotional and psychological injury. The evidence was sufficient to justify a finding that Torregrossa went over the guardrail in an attempt to avoid being struck by the tractor-trailer.

Torregrossa sued Mosley, Righter and Liggett for personal injuries and property damage sustained in the accident. Righter's liability was alleged solely upon the actions of its agent, Liggett. Torregrossa's wife, Sherry, joined in the suit seeking damages for loss of consortium. Righter filed a counterclaim against Torregrossa and a cross-claim against Mosley for damage to the truck, towing charges and loss of use. Torregrossa filed a claim for contribution against Mosley on Righter's counterclaim. The trial court sustained Mosley's motion for directed verdict at the conclusion of the plaintiffs' case and Righter dismissed its cross-claim against Mosley. The trial court sustained Torregrossa's motion for directed verdict on Righter's counter-claim at the conclusion of all the evidence.

The jury returned the following handwritten verdicts:

"We, the jury, find the issues in favor of the plaintiff August V. Torregrossa and against defendant Righter Trucking Co. Inc. and we assess plaintiff's damages as follows:

For personal injuries $34,000

For property damage 1,000

And we further find the issues in favor of the defendant none." (underlining in original)

"We, the jury, find the issues in favor of both defendants, and against plaintiff Sherry Torregrossa."

During summation plaintiffs' counsel on two occasions erroneously suggested that the jury could return its verdicts against the employer (Righter) but need not find against the employee (Liggett). Goedecke v. Bi-State Development Agency, 412 S.W.2d 189 (Mo.App.1967) l.c. 191. After the verdicts were returned and before the jury was discharged, plaintiffs' attorney sought to confirm "the clear intent of the Jury" that the verdict was against only the employer and not against the employee. The court then inquired of each of the ten jurors who signed the verdict in favor of Torregrossa whether they were "holding Righter Trucking Company liable and not the driver." ² All responded affirmatively.

Torregrossa filed a motion for new trial against Mosley, Righter and Liggett on the question of liability only. Sherry Torregrossa sought a new trial against Mosley, Righter and Liggett on all issues. Righter sought a judgment in accordance with its motion for directed verdict, for a new trial on all issues as to Torregrossa's claim, and for a new trial on its counter-claim. The trial court granted Righter a new trial on Torregrossa's suit on all issues on the basis of "an inconsistent verdict;" granted Sherry Torregrossa a new trial against Righter and Liggett on the grounds the verdict against her was "inconsistent"; denied Torregrossa's motion for new trial on his claim against Mosley; denied Righter's motions for judgment against Torregrossa on Torregrossa's claim and for a new trial on its counterclaim, and denied, by failing to rule within 90 days, Sherry Torregrossa's motion for new trial against Mosley and Torregrossa's motion for new trial against Liggett.

This spawned four appeals:

(1) Liggett from the order granting Sherry Torregrossa a new trial against him (2) Righter from the denial of its motion for judgment against Torregrossa, the grant of a new trial to Sherry Torregrossa, and the denial of a new trial on its counterclaim;

(3) Both Torregrossas from the order granting Righter a new trial on all issues;

(4) Both Torregrossas from the order granting Righter a new trial as to each of them and the order denying a new trial as to Torregrossa against Liggett. (This last appeal was taken out of time by leave of this court pursuant to Rule 81.07). ³

We consolidated all appeals.

The first worm out of the can must be the status of the jury verdict as to Torregrossa. In Thorne v. Thorne, 350 S.W.2d 754 (Mo.1961) the court set out the general principles applicable to defective verdicts:

"A verdict is the sole basis of the judgment to be entered in a jury case and if it is not sufficient to sustain the judgment, the latter is void .... The verdict must be responsive to all the material issues, and it should find the issues for or against the respective parties .... Mere surplusage in a verdict has often been disregarded .... It has been stated that the courts will construe a verdict liberally in an effort to ascertain the jury's intent .... And, of course, the court considers a verdict to see if it can find a reasonably clear intent expressed therein, though...