State ex rel. Vogel v. Campbell

• Decision Date: 11 February 1974
• Docket Number: No. 58359,58359
• Citation: 505 S.W.2d 54
• Parties: STATE of Missouri ex rel. Jakob VOGEL, Relator, v. Honorable Robert Lee CAMPBELL, Judge of the Circuit Court of St. Louis County, Missouri, Respondent.
• Court: Missouri Supreme Court

Page 54

505 S.W.2d 54

STATE of Missouri ex rel. Jakob VOGEL, Relator, v. Honorable Robert Lee CAMPBELL, Judge of the Circuit Court of St. Louis County, Missouri, Respondent.

No. 58359.

Supreme Court of Missouri, En Banc.

Feb. 11, 1974.

Kroening & Kelly, Clayton, Missouri, Walter S. Berkman, Clayton, for relator.

Robert F. Ritter, Gray, Friedman & Ritter, St. Louis, for respondent.

DONNELLY, Chief Justice.

This is prohibition.

We transferred this case from the Missouri Court of Appeals, St. Louis District and decide the case the same as an original appeal (Mo.Const. Art. V, § 10, V.A.M.S.). We have heard the case, and agree with the result reached by the Court of Appeals. We are indebted to Judge Simeone for his opinion, a substantial portion of which we adopt without quotation marks.

Relator, Jakob Vogel, brought an action in the Circuit Court of St. Louis County against Gamble Construction Co., Inc., James Waller, Herman Shanker Realty & Development Co., Inc., and Herman Shanker individually to recover damages as a result of injuries sustained when Vogel's automobile skidded across a road and collided with a telephone pole, allegedly because of the negligence of defendants. The original petition alleged that Gamble was the general contractor engaged in the construction of a shopping center in Ballwin, Mo., that Waller was a subcontractor engaged in excavating, grading and constructing driveways, curbs and access lanes on the highway right-of-way. Vogel alleged that defendants, by excavations and storage of dirt in piles and the operation of trucks and other vehicles, caused large amounts of dirt and mud to accumulate on the road; when wet, this accumulation caused a slippery and dangerous condition for the passage of vehicles. Various allegations of negligence were made. Vogel Prayed for damages for personal injury and property.

In due time the cause was tried before respondent and a jury. Trial was held from January 17 to January 21, 1972. At the close of the evidence respondent directed a verdict in favor of defendant Waller.

The cause was submitted to the jury separately as to defendants Shanker and Gamble with the same verdict-directing instruction except as to the names of defendants.

At about 11:57 a.m. on January 21, 1972, the jury retired to deliberate. During the deliberations the jury forwarded various notes to respondent, the contents of which were not revealed to respective counsel, with the exception of the first. One note was received at 12:07 p.m., one at 2:55 p.m. and another at 4:35 p.m. Upon receiving this last note, respondent called the jury in and asked whether they currently stood at seven to five. The foreman replied 'That is correct.' He stated that there seemed to be a possibility they could reach a verdict. Respondent then requested the jury to return to the jury room. The jury deliberated all afternoon. At about 6:05 p.m. respondent received the last handwritten note which is in issue here. The note was signed by the foreman, Mr. Karbach, and read as follows: 'Need instruction if verdict is for plaintiff & against Gamble--What conditions are necessary? Our present vote is 12 in favor of exonerating Shanker and 8--4 in favor of exonerating Gamble. If the Gamble instructions could be clarified we may have a verdict. W. Karbach, Foreman.'

After receiving the note, respondent discussed the situation with counsel outside the hearing of the jury, but did not discuss or reveal how the vote stood or the substantive contents of the note. After some discussion among respondent and counsel regarding the proper procedure to be followed, the jury was recalled and respondent asked whether they still stood numerically as when they sent the last note. The foreman replied in the affirmative, and in response to a question whether they felt if they '. . . ate and came back here in one hour . . . do you feel you would still be deadlocked?', the foreman replied 'I believe so, yes.' Further discussion with counsel occurred. Then the following occurred in the presence of the jury, which respondent contends shows, coupled with the contents of the note, the jury rendered a verdict:

'THE COURT: Mr. Karbach, do you still stand 12 to 0 in favor of one defendant?

MR. KARBACH: Yes, sir, that is correct.

THE COURT: Do all of the jurors know the content of the last note that Mr. Karbach sent out to me?

MR. KARBACH: Yes, sir, they do.

THE COURT: Did you relate it to them?

A. MR. KARBACH: Yes, sir.

THE COURT: In view of the fact that you stand 12 to 0 in favor of one defendant, is there anyone (sic) of the 12 jurors who does not stand 12 to 0 for the one defendant, in accordance with the note, the note Mr. Karbach sent out?

I take it by your silence, that all of you--although I won't say the words reached a verdict--all of you have agreed on exonerating one defendant. Is that correct, Mr. Karbach?

MR. KARBACH: That is correct, sir.

THE COURT: At this time, I have no alternative except to declare a mistrial in the case. Does any attorney want anything further on the record, at this time? Mr. Kelly?'

Mr. Ritter, attorney for defendants Shanker, requested the jury be polled, but respondent denied this request. Respondent then excused the jury. After dismissal of the jury, respondent informed counsel of the contents of the notes, including the last one in issue.

On January 26, 1972, counsel for defendants Shanker filed a motion to enter judgment in their favor in accordance with the jury's verdict, and an alternative motion for entry of judgment in their favor in accordance with their motion for directed verdict filed at the close of all the evidence. The motion was heard on February 18, 1972, and respondent overruled the motion for judgment in accordance with the motion for directed verdict, but sustained the motion to enter judgment in accordance with the jury's verdict. Judgment was then entered in favor of defendants Shanker and 'held in abeyance pending determination of Plaintiff's cause of action against Defendant Gamble Construction Co., Inc.'

Relator requested respondent to delay entering his order and judgment so that counsel could apply for a writ of prohibition, and was granted until 5:00 p.m. of the same date to do so. On February 22, 1972, relator filed his petition for a writ of prohibition in the St. Louis District of the Court of Appeals, and after receiving suggestions, that Court issued its provisional writ on March 23, 1972.

The primary issue in this case is whether that was a 'verdict' of the jury rendered under these facts in favor of defendants Shanker. We hold there was not and make the provisional rule of the St. Louis District of the Court of Appeals absolute.

A verdict has been described as the '. . . definitive answer given by the jury to the court concerning the matters of fact committed to the jury for their deliberation and determination.' State v. Casey, 338 S.W.2d 888, 891 (Mo.1960). Webster's Third New International Dictionary defines 'definitive' to mean '. . . serving to supply a final answer . . .' A verdict is the final decision of a jury. Because the verdict must represent the final decision of the jury, the court and jury must establish that the jury intends that its decision be final. Therefore, before a jury decision is considered final and a 'verdict', it must be submitted to the court, accepted by it and assented to by the jury, and recorded by the court. Lummi Boy Packing Co. v. Kryder, 263 S.W. 543, 545 (Mo.App.1924). This procedure affords the jury ample opportunity to correct any misunderstanding, realize the finality of its decision and finally assent to a verdict.

We agree that at some time in its deliberations in this case the jury reached a tentative decision that defendants Shanker were not liable. However, this conclusion is not sufficient to sustain respondent's position. 'In the first place, the fallacy is in assuming that the . . . paper brought in was a verdict. In one sense it may have been, if we mean that it was, at that moment, the answer and finding of the jury; but it did not become a verdict on which a judgment could be rendered, for it was never received and recorded.' Lummi Boy Packing Co. v. Kryder, supra. Respondent relies upon a number of decisions to urge us to reach the conclusion that the note and subsequent interrogation constituted a verdict in favor of defendants Shanker. Shuff v. Kansas City, 221 Mo.App. 505, 282 S.W. 128 (1926); Holmes v. Braidwood, 82 Mo. 610 (1884); Peckham v. Lindell Glass Co., 7...