Reed v. Sale Memorial Hosp. and Clinic
| Decision Date | 18 November 1987 |
| Docket Number | No. 15045,15045 |
| Citation | 741 S.W.2d 819 |
| Parties | Joyce REED, Plaintiff-Appellant, v. SALE MEMORIAL HOSPITAL AND CLINIC, a partnership composed of P.B. Anderson, Richard Betz, Robert F. Betz, G.W. Blankenship, J.R. Carter, W.D. Dabbs, Roy E. Kenney, H.C. Lentz, and B.C. Olive, et al., Defendants-Respondents. |
| Court | Missouri Court of Appeals |
L.H. Buehner, Buehner & Buehner, Joplin, for plaintiff-appellant.
John R. Sims, Ruyle & Sims, Ron Mitchell, Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, for defendants-respondents.
Plaintiff Joyce Reed brought this action against defendants who are nine physicians doing business, as a partnership, under the firm name of Sale Memorial Hospital and Clinic. The petition alleged that plaintiff was wrongfully discharged from her employment by defendants, in violation of § 287.780 1 of the Workers' Compensation Law which prohibits an employer from discharging any employee for exercising any of his rights under that Law and gives a civil action for damages to an employee so discharged. The petition sought actual and punitive damages. The amount of punitive damages sought from defendant Blankenship exceeded the amount of punitive damages sought from the other defendants.
The jury's verdict, signed by nine jurors, awarded plaintiff $20,000 for actual damages against all defendants but denied punitive damages with respect to each defendant. Plaintiff appeals.
In general plaintiff contends that the submission to the jury of the verdict form, MAI 36.12 (1980 Rev.), had the effect of depriving her of a fair trial and of depriving her of her right to trial by jury. Plaintiff does not claim that the trial court erred in any of its actions or rulings. Indeed the general tenor of plaintiff's brief is that the trial court did what it was required to do and that it had no option to do otherwise. The record does not contain, prior to the filing of plaintiff's motion for new trial, any complaint by plaintiff with regard to the verdict form or any request by plaintiff that the trial court take any step or make any ruling with respect to the verdict form. On this appeal, as in her motion for new trial, plaintiff seeks to challenge MAI 36.12 (1980 Rev.) itself, the verdict form.
Among the instructions given to the jury was Instruction 8, MAI 2.04 (1981 Rev.), which reads as follows:
This appeal arises out of an incident which occurred after the case was submitted to the jury. It was so submitted at approximately 1:15 p.m. At approximately 4:15 p.m. the trial court received from the jury a note, marked Exhibit A, which reads as follows:
"EXHIBIT A
Can we decide on plaintiff vs. defendant separate?
Can we decide on actual damages separate?
Can we decide on each punitive damages separate?
Because all issues being decided as one issue rather than 3 separate issues, we do not agree."
The court responded to the note by giving Instruction 9 which reads:
Approximately 30 minutes later the jury returned Verdict A, a printed form, based on MAI 36.12 (1980 Rev.), the underlined portions of which had been filled in by the jury and which was signed by nine jurors. Verdict A reads:
"VERDICT A
Note: Complete this form by writing in the names required by your verdict.
On the claim of plaintiff Joyce Reed for discharge against defendants G. W. Blankenship, H. C. Lentz, P. B. Anderson, Richard Betz, Robert F. Betz, J. R. Carter, W. D. Dabbs, Roy E. Kenney, and G. C. Olive, we, the undersigned jurors, ifnd in favor of:
Roy E. Kenney and G. C. Olive)
Note: Complete the following paragraph only if the above finding is in favor of plaintiff Joyce Reed.
We, the undersigned jurors, assess the damages of plaintiff Joyce Reed as follows:
For actual damages $20,000.00 (Twenty Thousand Dollars)
( the amount).
For punitive damages against defendant G. W. Blankenship
$ None ( the amount or, if none, write the word 'none.')
For punitive damages against defendant H. C. Lentz
$ None ( the amount or, if none, write the word 'none.')
For punitive damages against defendant P. B. Anderson
$ None ( the amount or, if none, write the word 'none.')
For punitive damages against defendant Richard Betz
$ None ( the amount or, if none, write the word 'none.')
For punitive damages against defendant Robert F. Betz
$ None ( the amount or, if none, write the word 'none.')
For punitive damages against defendant J. R. Carter
$ None ( the amount or, if none, write the word 'none.')
For punitive damages against defendant W. D. Dabbs
$ None ( the amount or, if none, write the word 'none.')
For punitive damages against defendant Roy E. Kenney
$ None ( the amount or, if none, write the word 'none.')
For punitive damages against defendant G. C. Olive
$ None ( the amount or, if none, write the word 'none.')
Note: All jurors who agree to the above findings must sign below.
/s/ Marietta Banta /s/ Edward E. Jeffreys
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/s/ Retha Jones /s/ Lonnie Hagins
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/s/ Jeanie Hughey /s/ Ruth Wilkins
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/s/ Betty Ringenberg
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/s/ Laura Vanhooser
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/s/Joan Clayton
-------------------- ----------------------
Rule 84.04 prescribes the contents of an appellant's brief. Rule 84.04(d) requires that the "Points Relied On" state briefly and concisely what actions or rulings of the court are sought to be reviewed "and wherein and why they are claimed to be erroneous." Plaintiff's point does not meet that requirement, as she candidly concedes. Under the unusual circumstances here this court, as it is authorized to do by Rule 84.08(a), excuses plaintiff's failure to comply with Rule 84.04(d).
Plaintiff's point is that she was deprived of a fair trial and of her constitutional right to a jury trial because the use of Verdict A, mandated by MAI 36.12 (1980 Rev.), confused the jury in regard to voting on the multiple findings required by Verdict A; that Instruction 9, "although the only additional instruction Rule 70.02(b) permitted the trial judge to give," did not respond to the jury's questions contained in Exhibit A; that Verdict A violated Article I, Section 22(a) of the Missouri Constitution because it required at least the same 9 members of the jury to agree to 11 different findings in order to return one verdict "when any 9 members of the jury should have been allowed to return a separate verdict for each finding even if they be a different 9 on each finding"; that Verdict A prohibited a juror from signing it if he did not agree to the findings on all of the issues and required a juror to agree to findings in which he did not join in order to participate in the verdict.
In other jurisdictions, where a verdict in a civil case may be returned by a majority but less than all of the jurors (frequently 9 or 10 jurors out of a jury of 12), the courts have dealt with the question of whether a valid verdict requires the assent of the same 9 (or, as the case may be, 10) jurors with respect to all issues or whether it is sufficient that any 9 jurors agree with respect to each of the issues. There is a conflict in authority on the question.
Against varying constitutional and statutory backgrounds, some jurisdictions have held that the identical jurors, in the required number, must agree upon all issues encompassed within the verdict and that there is no valid verdict otherwise. Baxter v. Tankersley, 416 S.W.2d 737 (Ky.App.1967); Klanseck v. Anderson Sales & Service, Inc., 136 Mich.App. 75, 356 N.W.2d 275 (1984); Ferguson v. Northern States Power Co., 307 Minn. 26, 239 N.W.2d 190 (1976); Plaster v. Akron Union Passenger Depot Co., 101 Ohio App. 27, 137 N.E.2d 624 (1955); Clark v. Strain, 212 Or. 357, 319 P.2d 940 (1958); McCauley v. Charter Oak Fire Ins. Co., 660 S.W.2d 863 (Tex.App.1983); Hupf v. State Farm Mutual Ins. Co., 12 Wis.2d 176, 107 N.W.2d 185 (1961). These jurisdictions follow what may be called the "same 9 rule."
On the other hand, other jurisdictions have held that the verdict is proper if the required number of jurors agree with respect to each issue, and that it is not necessary that the same jurors agree on all issues. McChristian v. Hooten, 245 Ark. 1045, 436 S.W.2d 844 (1969); Juarez v. Superior Court of Los Angeles Cty., 31 Cal.3d 759, 183 Cal.Rptr. 852, 647 P.2d 128 (1982); Tillman v. Thomas, 99 Idaho 569, 585 P.2d 1280 (1978); Ward v. Weekes, 107 N.J.Super. 351, 258 A.2d 379 (1969); Naumburg v. Wagner, 81 N.M. 242, 465 P.2d 521 (App.1970); Schabe v. Hampton Bays Union Free Sch. Dist., 103 A.D.2d 418, 480 N.Y.S.2d 328 (2 Dept.1984); Fields v. Volkswagen of America, Inc., 555 P.2d 48 (Okla.1976); Bullock v. Yakima Valley Transp. Co., 108 Wash. 413, 184 P. 641 (1920). These jurisdictions follow what may be called the "any 9 rule."
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