Roman v. King

• Decision Date: 02 December 1924
• Docket Number: No. 18215.,18215.
• Citation: 268 S.W. 414
• Parties: ROMAN v. KING.
• Court: Missouri Court of Appeals

268 S.W. 414

ROMAN v. KING.

No. 18215.

St. Louis Court of Appeals. Missouri.

December 2, 1924.

Rehearing Denied Jan. 3, 1925.

Appeal from St. Louis Circuit Court; Moses Hartmann, Judge.

"Not to be officially published."

Action by Katherine D. Roman against John C. King. Judgment for plaintiff, and defendant appeals. Affirmed conditionally.

Kinealy & Kinealy, of St. Louis, for appellant.

W. B. & Ford W. Thompson, of St. Louis, for respondent.

SUTTON, C.

This case was before our Supreme Court upon a former appeal. Roman v. King, 289 Mo. 641, 233 S. W. 161, 25 A. L. R. 1263. A previous suit arising out of the same transaction from which this action springs was heretofore under decision in this court on appeal. Roman v. King (Mo. App.) 202 S. W. 590. That suit was afterwards voluntarily dismissed by the plaintiff in the circuit court, and thereupon the present suit was instituted. It is an action to recover damages for personal injuries alleged to have been sustained by plaintiff while passing down the steps of a 2-story flat building, located at 3209 North Newstead avenue in the city of St. Louis. Plaintiff occupied the second story flat as a tenant under lease from the defendant who is the owner of the building. The first floor flat was occupied by another tenant under lease from defendant. There was a porch across the front of the building. The porch was approached by a flight of wooden steps. These steps and porch were used in common by the tenants of the building as a means of ingress and egress to and from their respective tenements.

The evidence tends to show that the tread of the second step from the bottom of the flight became loose and unfastened on account of the decayed condition of the carrier on which it rested, and that, while the plaintiff was passing down the steps in going from the upper flat to the front yard, the loose and unfastened tread slipped from under her foot, and she was thereby caused to fall from the steps, and thus sustained the injuries for which she sues.

At the conclusion of the trial, the jury, having retired to consider their verdict, returned into court and presented to the court the following verdict, signed by nine jurors:

"We, the jury in the above cause, find in favor of the plaintiff, on the issues herein joined, and assess her damages at the sum of $2,500 and attorneys' fees."

Whereupon the court orally instructed the jury that the verdict so returned and presented to the court could not be accepted as a verdict, and orally instructed the jury to return to their room and read the instructions and return a verdict in accordance with said instructions, and thereupon destroyed said tendered verdict, and furnished the jury with a blank form of verdict. Whereupon the jury again retired to their room, and thereafter on the same day returned the following verdict:

"We, the jury in the above cause, find in favor of the plaintiff, on the issues herein joined, and assess her damages at the sum of $5,000."

This verdict was signed by the same nine jurors who signed the verdict first returned and presented as aforesaid. It was accepted by the court, and judgment was given thereon accordingly for $5,000. From this judgment, the defendant appeals.

Defendant complains that the court committed reversible error in refusing to accept the verdict first returned by the jury, and In accepting the subsequent verdict returned by them and giving judgment thereon.

In Dozier v. Jerman, 30 Mo. 216, loc. cit. 221, the verdict returned by the jury was for " "$5,253, with interest from day of sale." The words, "with interest from day of sale," were held to be surplusage, and the Supreme Court on appeal entered judgment on the verdict for $5,253.

In Ranney v. Bader, 48 Mo. 539, the verdict was as follows: "We, the jury, find for the plaintiff, and assess his damages at $293, with 6 per cent. interest." The trial court rendered judgment upon this verdict for $293, saying nothing about the interest, treating that part of the verdict as surplusage. Concerning this our Supreme Court said:

"The correctness of this action of the court is manifest. * * * It is common to reject as surplusage any statement in a verdict that does not affect the real finding, and enter judgment upon such finding, and to do so has never been held to be error."

In Hancock v. Buckley, 18 Mo. App. 459, loc. cit. 461, the jury returned into court the following verdict: "We, the jury, find for the plaintiff $125.40, dividing entire costs equally between the parties." Judgment was entered for plaintiff on the verdict for $125.40, and for costs, treating that portion of the verdict relating to costs as surplusage and of no effect. In disposing of the defendant's objection to this action of the trial. court, the Kansas City Court of Appeals said:

"On the verdict returned into court in this case, the law required the court, without more, to treat so much of it as undertook to divide the costs between the litigants, as outside of the province of the jury, and, therefore, mere surplusage, to be rejected by the court in entering up judgment."

In Buttron v. Bridell, 228 Mo. 622, loc. cit. 631, 129 S. W. 12, 14, 15, the jury returned the following verdict:

"We, the jury in the above-entitled cause, find the issues herein joined in favor of the plaintiffs and assess their damages at the sum of $1,700, to be paid in equal amounts of $850 by defendants."

Thereupon the foreman of the jury in open court, by direction of the court, erased from the verdict the words, "to be paid in equal amounts of $850 by defendants," and the verdict as thus amended was accepted by the court and judgment entered thereon. Whereupon the Supreme Court, speaking through Justice Woodson, said:

"If the jury had the authority to assess one-half of the damages against each defendant, then it had by virtue of the same authority the power to assess nine-tenths or any other proportional part thereof against one of them and the remaining part against the other. The jury possesses no such power, and when it attempted to so do by adding to the verdict the words erased, it was acting beyond its authority. Those words had no legal force or effect whatever, and were mere surplusage; and the court properly had them stricken out."

In that case the Supreme Court expressly approved the ruling in the Hancock Case, supra.

In State ex rel. Webster v. Knight, 46 Mo. 83, the jury returned the following verdict: "We, the jury, find the verdict for defendants, they to pay the costs of this suit." The trial court refused to receive this verdict, and discharged the jury. Our Supreme Court, by its writ of mandamus, compelled the trial court to receive the verdict and give judgment thereon. In deciding the case, the Supreme Court said:

"The jury found for the defendant; the verdict was good and complete. The matter of costs was not in issue, and was not submitted to them. That part of their verdict, therefore, was merely void, and should have been disregarded as surplusage."

In State ex rel. Fuller v. Beall, 48 Neb. 817, 67 N. W. 868, the jury returned the following verdict:

"We, the jury in this case, duly impaneled and sworn, do find and say that there is nothing due either plaintiff or defendant, and the said plaintiff and defendant are entitled to bear proportionately the costs of this action."

The court refused to receive the verdict and discharged, the jury. The Supreme Court, granting its writ of mandamus to compel the trial court to receive and record the verdict, said:

"The rule appears to he that a verdict which responds to all of the issues submitted should not be rejected on account of immaterial findings or recommendations superadded by the jury. In the verdict here set out there is a distinct and explicit finding with respect to the cause of action alleged by each party, and the attempted apportionment of the costs may be rejected as surplusage. * * * Judge Thompson, in his work on Trials, section 2636, says: `If the verdict has been unanimously agreed upon by the jury, reduced to writing in due form, returned by the jury, and regularly presented to the court, and if for insufficient reasons the court refuses to receive and record the same, it may be compelled to do so by a mandamus sued out in a tribunal possessing superintending jurisdiction over it.' * * * The act of receiving and recording a verdict when returned by the jury is * * * essentially ministerial, not involving the exercise of any discretion on the part of the judge, and the duty in that regard may accordingly, in a proper case, be enforced by means of the writ of mandamus."

From the foregoing authorities it is clear that in the present case the action of the court in rejecting the verdict which the jury first returned into court and accepting its subsequent verdict was erroneous. The verdict first returned clearly evidenced a complete determination by the jury of the issues submitted to them. There could be no possible doubt as to its meaning. It unmistakably showed that the jury found that the plaintiff had been injured as the result of the negligence of the defendant, and that her damages, measured according to law as defined by the instructions of the court, amounted to $2,500. This finding, clearly and unmistakably set down in the verdict, was in no way affected or invalidated by the additional gratuitous finding relative to attorneys' fees. The finding of the jury for the recovery of attorneys' fees was outside the issues submitted to them, and beyond the power of either the jury or the court to grant. It was mere surplusage, and should have been disregarded by the court. We are not unmindful of the rule that when a jury returns into court an unintelligible, repugnant, or incomplete verdict, or one that does not fully and definitely respond to the issues submitted, they may be directed by the court to reconsider it and bring in a proper verdict. But that rule cannot be...