Thorn v. Cross

• Citation: 201 S.W.2d 492
• Decision Date: 15 April 1947
• Docket Number: 27169
• Parties: THORN et al. v. CROSS
• Court: Court of Appeal of Missouri (US)

201 S.W.2d 492

THORN et al.
v.
CROSS

No. 27169

Court of Appeals of Missouri, St. Louis

April 15, 1947

'Not to be reported in State Reports.'

J. H. Haley, Jr., of St. Louis, and J. H. Haley, of Bowling Green, for appellant.

James D. Clemens, of Bowling Green, for respondents.

OPINION

McCULLEN [201 S.W.2d 493]

This suit was brought by respondents, as plaintiffs, against Adolph Boldt, Jr., and Richard Cross, as defendants, to recover damages for personal injuries alleged to have been sustained by the plaintiffs, and including damage to plaintiff John L. Thorn's automobile. After the suit was filed, but before trial, defendant Adolph Boldt, Jr., died, whereupon the cause was dismissed as to him and procecuted against defendant Richard Cross alone. A trial before the court and a jury resulted in a verdict and judgment in favor of the plaintiffs in the following sums: plaintiff John L. Thorn $ 2,400; plaintiff Vera L. Thorn $ 200; and plaintiff William G. Thorn $ 100. After an unavailing motion for a new trial, defendant Richard Cross appealed.

It appears that on November 17, 1945, plaintiffs were riding in an automobile in a northerly direction on U.S. Highway No. 61, in the City of Bowling Green, Pike County, Missouri, near the intersection of said highway with Main Street; that the car in which plaintiffs were riding was struck by an automobile operated by defendant Richard Cross which was moving in a westerly direction upon Main Street. The injuries and damage complained of by plaintiffs were alleged to have resulted from defendant's negligence in connection with said collision.

The only points made by defendant-appellant in this court are: (1) that the verdict was not responsive to the pleadings; and (2) that the verdict was not rendered under the evidence adduced in open court, but upon the fabricated prejudicial statement improperly made to the jury by Juror Wells.

As to defendant's Point I, namely, that the verdict was not responsive to the pleadings, the record shows that the verdict of the jury was as follows:

'We, the jury, find the issues in favor of the plaintiffs and against defendant Richard Cross and assess their damages as follows

Plaintiff John L. Thorn at the sum of $ 2400

Plaintiff Vera L. Thorn at the sum of $ 200

Plaintiff William G. Thorn at the sum of $ 100

(Signed) C. A. Guthrie, Foreman.'

Defendant contends that where several causes of action are united in the same petition, a verdict must be found and damages [201 S.W.2d 494] awarded on each count separately. In support of this contention defendant cites two cases. The first case, Shuck v. Pfenning-hausen, 101 Mo.App. 697, 74 S.W. 381, involved an action which was brought with two counts in the petition. The court merely applied the well settled rule that where several causes of action are united in a petition but are stated in separate counts there must be a finding on each count separately, and that a general verdict for plaintiff would be erroneous. The other case cited by defendant on this point, National Cash Register Co. v. Kay, 230 Mo.App. 1046, 93 S.W.2d 260, was an action by plaintiff therein against two defendants in which the defendants each separately answered and filed a counterclaim. The verdict of the jury made a finding for plaintiff against one defendant only, but did not dispose of plaintiff's cause as to the other defendant, yet found for plaintiff against each defendant on his separate counterclaim. The court properly held, in accordance with the well established rule, that a verdict must find all issues submitted either for or against the parties between whom the issues were raised, and the failure of the jury to so find constituted reversible error.

It will thus be observed that neither of the cases cited by defendant is in point with the case at bar. There was but one count in the petition in this case. The petition alleged that the injuries of all the plaintiffs named were directly caused by the negligence of defendant Boldt, Jr., or defendant Cross, or both defendants, in operating a motorcar at a high and dangerous rate of speed under the circumstances; failing to keep a lookout for persons and vehicles upon the highway; failing to have said motorcar under control, and negligently failing to stop said motorcar before entering the intersection mentioned. The petition then set forth the injuries sustained by each of the plaintiffs and prayed damages for John L. Thorn in the sum of $ 2,400, Vera L. Thorn in the sum of $ 1,000, and William G. Thorn in the sum of $ 500.

The verdict was responsive to the pleadings and determined all issues as to all the parties. Also, it was based upon the court's Instruction P-2 wherein the jury were told that if they found a verdict in favor of plaintiffs they should assess the damages, if any, of each of the plaintiffs at such sum as they found and believed from the evidence to be fair and reasonable compensation for the damages, injuries and disabilities, if any, which were the direct and natural result of the circumstances in question. Defendant made no objection to said instruction and will, of course, be deemed to have waived error. if any there was, in connection with the giving thereof.

It has been held that where there are several material issues, a general finding for the plaintiff assessing damages in sufficient, and that when the finding is a...