Thorn v. Cross
| Decision Date | 15 April 1947 |
| Docket Number | No. 27169.,27169. |
| Citation | 201 S.W.2d 492 |
| Parties | THORN et al. v. CROSS. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Pike County; Theodore Bruere, Judge.
"Not to be reported in State Reports."
Action by John L. Thorn, Vera Thorn and William G. Thorn, by his next friend, John L. Thorn, against Richard Cross for personal injuries and property damages sustained in automobile collision. From a judgment for John L. Thorn for $2,400, for Vera L. Thorn for $200 and for William G. Thorn for $100, the defendant appeals.
Judgment reversed and cause remanded for new trial.
J. H. Haley, Jr., of St. Louis, and J. H. Haley, of Bowling Green, for appellant.
James D. Clemens, of Bowling Green, for respondents.
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 prosecuted 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:
Defendant contends that where several causes of action are united in the same petition, a verdict must be found and damages awarded on each count separately. In support of this contention defendant cites two cases. The first case, Shuck v. Pfenninghausen, 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 is sufficient, and that when the finding is a general one it will raise the presumption that all the issues have been duly considered by the jury. Stout v. Calver, 6 Mo. 254, 35 Am.Dec. 438.
The new General Code for Civil Procedure, Laws Mo.1943, Sec. 111, p. 386, Mo.R.S.A. § 847.111, provides:
In the case at bar the jury found for each of the plaintiffs separately and awarded to each a specific sum of damages. It was not necessary that this suit be brought in separate counts, as were the cases cited by defendant. This action was properly brought under Section 16(a), Laws Mo. 1943, pp. 360, 361, Mo.R.S.A. § 847.16(a), which provides:
As to plaintiff John L. Thorn, the issues were: (1) Defendant's liability to said plaintiff for the direct result of defendant's negligence; and (2) the amount of the damages therefor. The verdict determined both said issues. It was not necessary for the verdict to specify in separate items the various kinds of damage suffered by plaintiff John L. Thorn. All of his damages grew out of defendant's negligence in the one occurrence, and it was clearly the intention of the jury, by awarding said plaintiff a lump sum of damages, to cover all the items thereof. We rule this point against defendant.
We now proceed to consider defendant's Point II. After the trial had been concluded and the verdict of the jury rendered, on June 28, 1946, defendant thereafter, on July 8, 1946, filed his motion for a new trial, in which, among other grounds, he alleged that the verdict of the jury was not based upon the evidence adduced in open court and the instructions of the court, but upon the "clandestine, unscrupulous, unfair and false information given by Juror Sam Wells to his fellow jurors during the trial and in the privacy of the jury room during the deliberation of the jury." Said motion for a new trial further alleged that: "After the trial was over and the jury disbanded, Juror Wells boastfully and pompously stated to defendant's attorney, J. H. Haley, that he (Juror Wells) knew defendant's evidence was all untrue because he (Juror Wells) was drinking with defendant on the night of the accident and that defendant had confided to him (Juror Wells) that he (defendant) was drunk and had carelessly run into plaintiffs' automobile, and that he (Juror Wells) saw defendant on the morning following the accident and that defendant was still drunk, and that he (Juror Wells) bought a bottle of whisky for defendant to sober up on; that when the jury was apprised of Juror Wells' `personal knowledge' of the facts of the case, as aforesaid, that Guthrie, as foreman of the jury, did the rest; all of which would explain the reason for the quick verdict for plaintiffs."
Attached to said motion for a new trial were the affidavits of W. B. McPike and Tom R. Turpin. The affidavit of McPike is as follows: "W. B. McPike, of lawful age, being duly sworn, upon his oath, states that he was present on the late afternoon of June 28, 1946, and heard Sam Wells tell John Haley that there was nothing strange about the quickness in which the jury reached a verdict in the case in which he had been a juror because he (Wells) had been drinking with Cross, (the defendant in the case) the night of the accident and that Cross was drunk and told him (Wells) that he (Cross) was drunk at the time of the collision and had carelessly run his car onto the highway...
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