Rakestraw v. Norris, 8995

• Decision Date: 07 July 1971
• Docket Number: No. 8995,8995
• Citation: 469 S.W.2d 759
• Parties: Ellen RAKESTRAW and Otis Rakestraw, Plaintiffs-Respondents, v. Wilbur O. NORRIS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 759

469 S.W.2d 759

Ellen RAKESTRAW and Otis Rakestraw, Plaintiffs-Respondents, v. Wilbur O. NORRIS, Defendant-Appellant.

No. 8995.

Springfield Court of Appeals, Missouri.

July 7, 1971.

Rehearing Denied July 29, 1971.

E. C. Curtis, Farrington, Curtis & Strong, Springfield, for defendant-appellant.

Harold L. Henry, West Plains, for plaintiffs-respondents.

HOGAN, Judge.

This is an action for damages arising out of a collision between two automobiles. Plaintiffs, husband and wife, filed their petition in two counts. In the first count, plaintiff Ellen Rakestraw sought judgment for $15,000 for personal injuries sustained in the accident. In the second count, plaintiff Otis Rakestraw sought damages in the sum of $7,500 for loss of services and consortium. Other defendants were joined and cross-claims were filed, but the cross-claims were dismissed before trial by stipulation and eventually plaintiffs' claims were submitted solely against defendant Norris. No order was made for the separate trial of any claim pursuant to Rule 82.06, V.A.M.R.; the record shows quite clearly that both causes of action were tried and submitted, and that the jury was instructed to return separate verdicts on both counts. Nevertheless, the jury found the issues for plaintiff Ellen Rakestraw and against defendant Norris, awarding her the sum of $8,000 as damages, but made no finding and returned no verdict whatever concerning the claim of plaintiff Otis. The trial court entered judgment upon the first count. Defendant Norris filed a motion for new trial, which was denied. Plaintiff Otis filed a timely motion for new trial upon the ground that the jury failed to return a verdict on his claim for loss of consortium, but no order disposing The issue has not been raised by either party, but it is nevertheless our duty to determine whether or not a final, appealable judgment has been entered in the case. Dudeck v. Ellis, Mo., 376 S.W.2d 197, 204(1); Pizzo v. Pizzo, 365 Mo. 1224, 1227, 295 S.W.2d 377, 379(1). The general rule is that to be final and appealable, a judgment must dispose of all parties and all issues in the case and leave nothing for future determination, unless the trial court has ordered a separate trial of any claim or issue, or has specifically designated the particular judgment as a final judgment for the purposes of appeal. State ex rel. Schweitzer v. Greene, Mo., 438 S.W.2d 229, 231(3); Dudeck v. Ellis, supra, 376 S.W.2d at 204(3); Bays v. Lueth, Mo., 323 S.W.2d 236, 237(1, 2). If no final, appealable judgment has been entered by the trial court, the appeal is premature and must be dismissed. Dudeck v. Ellis, supra, 376 S.W.2d at 204(3); Deeds v. Foster, Mo., 235 S.W.2d 262, 265(2).

of that motion appears of record, even though defendant's notice of appeal refers to an order granting Otis a new trial.

In this case, two plaintiffs joined separate and distinct claims in a single petition, as authorized by the permissive joinder provisions of Rule 52.05(a), V.A.M.R. Substantively, however, plaintiff Otis had no interest in plaintiff Ellen's claim for personal injuries, and she had none in his claim for loss of consortium, and the two causes of action were not merged but remained separate as if they had been sued on separately. A verdict on Count One (for Ellen's personal injuries) would be neither a direct nor indirect adjudication of the issues presented by the count for loss of consortium, De Vito v. Hoffman, 91 U.S.App.D.C. 263, 199 F.2d 468, 470(6, 7); Robben v. Peters, Mo.App., 427 S.W.2d 753, 756--757(2--6), and consequently, separate findings were required on each count, as indeed the jury was properly instructed here by approved instruction No. 36.07. When the jury failed to find a verdict on Count Two, the trial court might have required it to retire again and make such a finding, and perhaps might even have recalled it for that purpose after it had been discharged, see Thorne v. Thorne, Mo., 350 S.W.2d 754, 757(4--6), but neither of those things was done. What plaintiff did, and properly so, was to call the trial court's attention to the jury's failure to dispose of Count Two by motion for new trial, since that motion is now, by force of Rule 81.01, V.A.M.R., an appropriate motion in which to call attention to the jury's failure to dispose of all the issues in the case. Rule 81.01, V.A.M.R.; Owens v. Hannibal & St. Joseph R. Co., 58 Mo. 386, 394; Boudreau v. Myers, Mo.App., 54 S.W.2d 998. 999(4). Since some finding by the jury was a requisite to the entry of any valid judgment, Thorne v. Thorne, supra, 350 S.W.2d at 757(1) (2); Spangler-Bowers v. Benton, 229 Mo.App. 919, 927, 83 S.W.2d 170, 175(2--4); Proctor v. Garman, 203 Mo.App. 106, 108--109, 218 S.W. 910, 911(1), the trial court, on plaintiff Otis' motion, should have set aside the judgment entered (which disposed only of Count One) and held the verdict in abeyance pending resubmission, or other disposition, of Count Two. Swan v. Stuart,...