Lindstrom v. The Kansas City Southern Railway Company
| Decision Date | 26 January 1920 |
| Citation | 218 S.W. 936,202 Mo.App. 399 |
| Parties | OLAF LINDSTROM, Appellant, v. THE KANSAS CITY SOUTHERN RAILWAY COMPANY, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Thos. B. Buckner, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Clay C Rogers, Virgil Yates and C. W. Prince for appellant.
Hugh Martin and Cyrus Crane for respondent.
Upon this verdict the court rendered a judgment in favor of the plaintiff and against the defendant in the sum of $ 500. On the 8th day of February, 1919, and at the same term defendant filed a motion for the judgment for defendant, claiming that the verdict was in favor of defendant; on February 10, 1919, and at the same term, defendant filed a motion in arrest of judgment; both of these motions were sustained, the motion in arrest of judgment first. The court thereupon rendered judgment on the verdict in favor of the defendant, and plaintiff has appealed.
It is well settled that when no actual damage is suffered no punitive damages can be allowed. [Hoagland v. Amusement Co., 170 Mo. 335, 70 S.W. 878; Mills v. Taylor, 85 Mo.App. 111; Adams v. Railroad, 149 Mo.App. 278.] It is, therefore, insisted by the defendant that as the jury found plaintiff sustained no actual damages the verdict was in effect a verdict for the defendant, and that the court properly corrected the judgment so as to comply with the verdict.
It is apparent to us that the verdict is neither for the plaintiff nor the defendant on the question of actual damages. The verdict recites that the jurors "find the issues for plaintiff." The jury were instructed that if,-- ". . . the defendant, by and through one of its guards, watchmen and detectives, then and there unlawfully, wilfully and maliciously, and without reasonable or probable cause therefor, touched, struck, beat and kicked this plaintiff, if you so find, then and there and thereby seriously injuring plaintiff, if you so find, . . . then your verdict must be for the plaintiff."
They were also instructed that if the jury found that plaintiff received no injuries their verdict must be for the defendant. Therefore, as the jury found the issues for plaintiff they necessarily found that he suffered at least nominal actual damages, but the jury after finding such facts turned around and found that plaintiff had received no actual damage. Clearly the verdict is contradictory and no judgment could have been rendered thereon. [Hoagland v. Amusement Co., supra, 345; Mills v. Taylor, supra, l. c. 116.] The court before receiving and recording the verdict should have sent the jury back with instruction to return a proper verdict, and upon his failing to do this, and after the jury was discharged, he should have granted a new trial. [Newton v. Railroad, 168 Mo.App. 199.]
It is claimed that as defendant did not file a motion for a new trial the court...
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