Skadal v. Brown, 48457

• Decision Date: 13 November 1961
• Docket Number: No. 48457,No. 1,48457,1
• Citation: Skadal v. Brown, 351 S.W.2d 684 (Mo. 1961)
• Parties: Chris E. SKADAL, Plaintiff-Respondent, v. Melvin Francis BROWN, Defendant-Appellant
• Court: Missouri Supreme Court

Page 684

351 S.W.2d 684

Chris E. SKADAL, Plaintiff-Respondent, v. Melvin Francis BROWN, Defendant-Appellant.

No. 48457.

Supreme Court of Missouri, Division No. 1.

Nov. 13, 1961.

Motion for Rehearing or Modification or for Transfer to

Court en Banc Denied Dec. 11, 1961.

Robert L. Jackson, Kansas City, for appellant.

Sanders & Niewald, Kansas City, by Lewis W. Sanders, Kansas City, Sevier & Turnage, Liberty, by Robert F. Sevier, Liberty, Sebree, Shook, Hardy & Ottman, Kansas City, by David H. Clark, Kansas City, for respondent.

HOUSER, Commissioner.

Chris E. Skadal brought suit against Melvin Francis Brown for personal injuries (Count I) and property damage (Count II). Defendant filed a counterclaim for property damage. A trial jury found the issues for plaintiff and against defendant on Count I and awarded plaintiff $28,000 damages; for defendant and against plaintiff on Count II; and for plaintiff and against defendant on defendant's counterclaim.

On this appeal from the judgment entered below defendant makes these points: The verdict is internally inconsistent; the verdict is contrary to Instruction No. 1; Instructions Nos. 1 and 14 are in conflict; the verdict is excessive, violates the rule of uniformity, and is so excessive as to evidence bias and prejudice by the jury.

This litigation arose out of a nighttime collision on Highway 69 north of Kansas City. Plaintiff, driving a tractor-trailer combination, transporting a cargo for one Millard, was forced to stop because of fuel trouble. Plaintiff says he came to a stop completely off the highway and on the shoulder. Plaintiff owned the tractor; Millard owned the trailer. Plaintiff set out reflectors to warn passing traffic. Defendant was driving a tractor-trailer unit in the same direction plaintiff had been traveling. As defendant approached, plaintiff was standing in the center of the right-hand lane, waving a flashlight in an attempt to warn defendant. Defendant did not slow down, and at a certain point plaintiff, determining that defendant was not going to stop, stepped or ran off the highway onto the shoulder, and stood up against his cab to let defendant pass. Instead of clearing plaintiff's equipment the right front of defendant's tractor struck the left rear of Millard's trailer. According to plaintiff, the collision threw him onto the highway in front of his tractor; inflicted personal injuries upon him and damaged his tractor. Defendant testified that he did not see the reflectors, or plaintiff, or the trailer until defendant was within 50 to 75 feet; that defendant immediately swerved to the left to miss the truck, saw plaintiff on the highway and swerved back to the right to avoid striking plaintiff, and his tractor then struck the Millard trailer, which was parked in such a position that it occupied a considerable portion of the highway.

Instruction No. 1 submitted plaintiff's case to the jury on defendant's failure to keep a careful and vigilant lookout ahead and to see the lights and warnings given by plaintiff, under a direction that if the jury found that such failure constituted negligence 'and directly caused injuries to plaintiff and damages to his tractor, then your verdict shall be for the plaintiff on Counts I and II of plaintiff's petition and against the defendant on defendant's counterclaim.'

Instruction No. 3 directed an allowance to plaintiff of the difference between the reasonable market value of the tractor immediately before and immediately after the collision, if the jury should 'find the issues in favor of plaintiff and that his tractor was damaged as a direct result of the facts recited in Instruction number one.'

Instruction No. 9 directed a verdict for defendant and against plaintiff on defendant's counterclaim upon a finding that plaintiff parked his tractor-trailer wholly or partly on the right-hand side of the traveled portion of the pavement so as to block the movement of traffic; that there were no lights or warning devices on the equipment and that this constituted negligence causing the collision.

Instruction No. 14, which prescribed the various possible forms of verdict, included the following form which the jury used:

'We, the jury, find the issues for the plaintiff on Count I of plaintiff's petition and assess plaintiff's damages in the sum of $_____ and for the defendant on Count II of plaintiff's petition and for plaintiff on defendant's counterclaim.

________.'

Foreman

The defendant first asserts that the verdict is internally inconsistent in that the jury could not logically find for plaintiff on Count I of the petition while at the same time finding for defendant on Count II; that if the jury believed plaintiff's version of the accident plaintiff was entitled to and should have recovered on both counts of the petition but that if the jury disbelieved plaintiff's story, plaintiff should have lost on both counts. Defendant points to plaintiff's counsel's argument to the jury that Instruction No. 1 'envisions an award to [plaintiff] on both his personal injuries and the property damages and if you don't feel that he is entitled to both of those, then don't give him a cent because I do not personally see how you could find that he was entitled to personal injuries and not entitled to the property damages.' Defendant argues that 'despite all logic, in the face of plaintiff's own closing argument, and in the teeth of Instruction No. 1, the jury found for plaintiff on Count I but against him on Count II,' and that this verdict cannot stand because it is inconsistent, illogical and self-contradictory.

Defendant cites Blackman v. Botsch, Mo.App., 281 S.W.2d 532, a negligence action in which a verdict for plaintiff on the petition and for defendant on the counterclaim was held inconsistent and self-destroying; Ruth v. McPherson, 150 Mo.App. 694, 131 S.W. 474, in which a verdict for plaintiff-physician for professional services rendered and for defendant-patient on a counterclaim for malpractice was held unreconcilable and inconsistent with itself; Smoot v. Riebel, Mo.App., 274 S.W. 522, in which a verdict for plaintiff on plaintiff's petition for the value of a foxhound killed by defendant, and also for defendant on defendant's counterclaim for injury to his stock, inflicted by the dog, was not permitted to stand, as inconsistent; Ferd Bauer Engineering & Contracting Co. v. Artic Ice and Storage Co., 186 Mo.App. 664, 172 S.W. 417, in which a verdict for plaintiff-contractor in a suit on a building contract and for defendant-owner on his counterclaim for damages from delay and defects in the building was held contradictory; Law v. City of St. Louis, 292 Mo. 384, 239 S.W. 124, where an injured person sued both the city and a street railway company for personal injuries; both defendants defended on the ground of contributory negligence; and a verdict for the city and against the street railway company was held inconsistent; Ruehling v. Pickwick-Greyhound Lines, 337 Mo. 196, 85 S.W.2d 602, and Stevens v. D. M. Oberman Mfg. Co., 229 Mo.App. 627, 79 S.W.2d 516, suits brought against both employer and employee on the theory of respondeat superior, wherein verdicts returned in favor of the employee but against the employer were deemed inconsistent; and cases such as Lanning v. Trenton & Mercer County Traction Corp., 130 A. 444, 3 N.J.Misc. 1006, where a wife sued for personal injuries and the husband in a separate count sued for loss of services or medical expenses, and the jury found in favor of one spouse but against the other. Such verdicts were set aside as internally inconsistent. However correct these decisions were under their factual situations, they have no application. here.

This verdict is not necessarily inconsistent. Whether it is inconsistent depends in this case upon the evidence offered to sustain Counts I and II. Redmond v. Jones, Ky.App., 249 S.W.2d 535, 536. While the same proof on the issues of negligence, contributory negligence and causation would be required to sustain each of the two counts, different proof in other respects would be required to authorize the jury to award pecuniary damages under both counts. The burden of proof was upon plaintiff to establish by a preponderance of the evidence under Count I that he sustained personal injuries, the nature and extent of the injuries inflicted, and the special items of damage, and under Count II to establish that his tractor was damaged, the nature and extent of the damages sustained, and the pecuniary loss suffered. Apparently plaintiff satisfied the jury on Count I, but failed on Count II to establish to the satisfaction of the jury that his tractor actually was damaged, or the extent of the damage or the pecuniary loss sustained. It was the function of the jury to pass upon the credibility of plaintiff's testimony that the tractor was damaged and as to its reasonable market value before and after the collision, and to determine the weight and value to be accorded his testimony. Dempsey v. Horton, 337 Mo. 379, 84 S.W.2d 621, 623, 624. Although plaintiff's testimony was uncontradicted, this did not entitle plaintiff to have it accepted as true. Thomson v. Butler, 347 Mo. 269, 147 S.W.2d 437, 439. The jury was privileged to accept or reject plaintiff's testimony with respect to property damage, either in whole or in part, even...