Sullivan v. KSD/KSD-TV, KSD-TV

• Decision Date: 15 November 1983
• Docket Number: KSD-TV,No. 46609,46609
• Citation: 661 S.W.2d 49
• Parties: James H. SULLIVAN, Plaintiff-Appellant, v. KSD/, and G. Chris Condon, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 49

661 S.W.2d 49

James H. SULLIVAN, Plaintiff-Appellant, v. KSD/KSD-TV, and G. Chris Condon, Defendants-Respondents.

No. 46609.

Missouri Court of Appeals,

Eastern District,

Division Three.

Nov. 15, 1983.

Edward P. McSweeney, St. Louis, for plaintiff-appellant.

Robert B. Hoemeke, St. Louis, for defendants-respondents.

KAROHL, Presiding Judge.

Plaintiff, James H. Sullivan, an employee of the City of St. Louis and property owner in St. Francois County, sued G. Chris Condon, a newscaster, and Condon's employer, KSD/KSD-TV, Inc., in six counts. Four of the counts were submitted to the jury: ¹ Count I, intrusion upon seclusion invasion of privacy against both defendants; Counts II and V, false light invasion of privacy against defendant KSD/KSD-TV, only; and Count IV, trespass against both defendants. The jury returned verdicts in favor of KSD/KSD-TV on Counts II and V. The jury found in favor of the plaintiff on Count I and awarded $5000.00 actual and "none" punitive damages. The jury also found in favor of plaintiff on Count IV, trespass, but awarded "0" actual and "none" punitive damages. Plaintiff requests a new trial on Counts I and IV only, claiming that the trespass verdict is contradictory and therefore a nullity because no damages were awarded, and that the trial court erred in excluding evidence of net worth of the corporate defendant relevant to the jury's consideration of punitive damages on Counts I and IV. Judgment affirmed.

We first address plaintiff's attack on the award of no damages on Count IV, trespass. The jury returned a verdict in favor of plaintiff on this count but awarded defendant "0" actual damages and entered "none" as the punitive damages awarded. The following instructions tendered by plaintiff were submitted to the jury on Count IV:

Instruction No. 7

Your verdict must be for plaintiff and against defendants if you believe: Defendant Condon intentionally entered onto plaintiff's property without lawful authority. [not MAI]

Instruction No. 9

If you find in favor of plaintiff, then you must award plaintiff such sum as you believe will fairly and justly compensate plaintiff for any damages you believe he sustained as a direct result of defendant Condon's entry onto plaintiff's land. [MAI 4.01]

Instruction No. 10

If you find the issues in favor of plaintiff, and if you believe the conduct of defendant Condon as submitted in Instruction No. 7 was willful, wanton, or malicious, then in addition to any damages to which you find plaintiff entitled under Instruction No. 9, you may award plaintiff an additional amount as punitive damages in such sum as you believe will serve to punish defendants and to deter them and others from like conduct.

If punitive damages are assessed, the amounts assessed against each defendant may be the same or they may be different.

The term "malicious" as used in this Instruction does not mean hatred, spite, or ill will, as commonly understood, but means the doing of a wrongful act intentionally without just cause or excuse. [MAI 10.01, 10.03, 16.01]

Plaintiff contends that the trespass verdict of the jury, finding for plaintiff but awarding no damages, was self-contradictory and therefore void. In support of his argument plaintiff cites Boone v. Richardson, 388 S.W.2d 68 (Mo.App.1965), a negligence case. Boone stands for the proposition that in a negligence case where the jury finds in favor of the plaintiff and awards no damages, the verdict is so contradictory as to be a nullity. In such case, the verdict directing instruction requires the jury to find both negligence by defendant and resulting damages to plaintiff. See MAI 17.01, 17.02; Pietrowski v. Mykins, 498 S.W.2d 572, 579 (Mo.App.1973). Because nominal damages are available in trespass actions, however, Hyre v. Becker, 18 S.W.2d 137, 140 (Mo.App.1929), a plaintiff's verdict directing instruction in such action need not include a finding of resulting damages to survive the test of sufficiency. See Aubuchon v. LaPlant, 435 S.W.2d 648, 652 (Mo.1968). All that was necessary under the trespass verdict director submitted in this case as Instruction No. 7 was a finding of intentional unauthorized entry upon plaintiff's land, and the jury so found. Instruction No. 9 required the jury to consider the damage, if any, to plaintiff's real estate, i.e., actual damages, and it found "0." The jury found a technical trespass but no damage. We find no inherent contradiction in the verdict. See Patison v. Campbell, 337 S.W.2d 72, 75-76 (Mo.1960) (jury verdict in wrongful death action for the plaintiff where no actual damages were awarded found not to be contradictory).

Although plaintiff correctly asserts that one prevailing on a trespass count is generally entitled to at least nominal damages, Hyre v. Becker, 18 S.W.2d at 140, "[i]n civil cases the court is not required to instruct upon any proposition of law arising in a case unless requested." Dailey v. Stout, 353 S.W.2d 833, 835 (Mo.App.1962). Although Dailey was a pre-MAI trespass case there are no MAI verdict directing or damage instructions specifically for trespass. Here, the plaintiff not only did not request a damage instruction requiring the jury to find at least nominal damages, all the instructions offered by the plaintiff were...