Thorne v. Thorne

• Decision Date: 13 November 1961
• Docket Number: No. 2,No. 48752,48752,2
• Citation: 350 S.W.2d 754
• Parties: Frank THORNE, Jr., respondent, v. Virgil Dean THORNE and Willis E. Baker, doing business as Baker Truck Lines, Appellants
• Court: Missouri Supreme Court

Page 754

350 S.W.2d 754

Frank THORNE, Jr., respondent, v. Virgil Dean THORNE and Willis E. Baker, doing business as Baker Truck Lines, Appellants.

No. 48752.

Supreme Court of Missouri, Division No. 2.

Nov. 13, 1961.

Robert L. Jackson, Kansas City, for appellants.

John J. Gardner, Olathe, Kan., Thomas A. Sweeny, Kansas City, for respondent, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.

EAGER, Presiding Judge.

The present suit is one for personal injuries. The trial court entered judgment in favor of plaintiff and against both defendants for $31,750 'for personal injuries' and $1,000 'as property damage,' upon the purported verdict of a jury. The legal sufficiency of that verdict is the principal question raised here. A very brief statement of the facts will suffice.

Plaintiff, accompanied by a passenger, was driving his Ford pickup truck west along the north half of Guinotte Avenue in Kansas City at about 4:45 on the afternoon of April 9, 1959; he had slowed almost to a stop, or perhaps had stopped, in order to make a left turn into the driveway of a filling station on the south side of the street; he was in the inside lane of the north half of the four-lane street, waiting for the oncoming traffic to clear. He testified that his left turn signal was operating and had been so operating for nearly half a block, and that his stop was gradual. Defendant Thorne, driving a tractor trailer unit with a sixteen-ton load behind plaintiff and in the same direction, ran into the rear of plaintiff's vehicle and knocked it across the center line of the street into a head-on collision with an oncoming car. It is conceded that the defendant Thorne was acting as an agent for the other defendant. The identity of the surnames of plaintiff and the individual defendant is purely coincidental. Defendants were charged with negligence in sundry respects, including negligent lookout, negligent speed and a negligent failure to stop, slow or swerve so as to avoid the collision. Defendants do not claim here that plaintiff failed to make a submissible case. Contributory negligence was an issue at the trial, but that question is in no way involved here.

Plaintiff suffered very severe injuries, consisting principally of fractures of the upper jew, facial bones on both sides and across the nose, with a fracture line running into the base of the skull. The operative treatment was extensive and caused much discomfort and personal inconvenience. Plaintiff, at trial, testified to certain remaining serious effects, but his general recovery was regarded as good. We shall not need to develop this phase further.

The jury was instructed very fully on the issues of negligence pro and con, and on the matter of damages. No objections are made here to any of the instructions. The jury was also given an instruction (No. 11) containing several forms of verdict; all of those in plaintiff's favor began with the words: 'We, the jury find the issues for plaintiff * * *'; and they concluded with the words: 'and do assess his damages at $_____.' The forms so given distinguished between damages for personal injuries and property loss and permitted separate assessments for either or both. This instruction further told the jury that its verdict 'should be written on a separate paper, and not on one of these instructions.' After deliberating, the jury returned to the court a sheet of paper containing the following words and figures: 'Persnal injuris $31,750.00 Damages $1000.00.' Below this writing appeared the signatures of ten jurors. When the court received this paper it read the quoted words and figures aloud, asking the foreman whether the first amount was $31,750; the foreman replied that it was 'seven hundred.' At that point the following further colloquy ensued: 'The Court: '---- $750.00. Damages $1,000.00.' Do you mean by 'damages' property damage? The Foreman: Yes. The Court: I am going to write in here in the presence of the jury 'property damage', then have counsel look at it. This is signed by ten jurors, is that correct, Mr. Foreman? The Foreman: Yes, sir. The Court: Now, is that the verdict of the ten who signed this verdict? (Jurors indicate affirmatively.)' The court wrote the word 'property' on this paper, before the word 'damages.' Following the above the transcript notes--'Jury Excused.' There is nothing in the record to indicate that counsel for either party had seen the paper up to this point.

Thereupon a colloquy ensued between court and counsel, and at that point counsel for defendants moved that the purported verdict be stricken and a mistrial declared, for the reasons: that on its face it was improper, that the jury had not followed the court's instructions, that it had not 'found the issues' for plaintiff and against the defendants, that it had made no finding with regard to the negligence of the defendants' or plaintiff's contributory negligence, that the paper 'is an estimate generally of some sort' and that it did not constitute a verdict of the jury. As a matter of clarity, we note here that these objections were fairly preserved in defendants' motion for a new trial, about which no question is raised.

At this point the court stated to counsel that the foreman had signed his name on the first verdict form on Instruction No. 11. That particular form contained separate specific findings of the issues for plaintiff on his claims for personal injuries and property damages, with blank spaces for the assessment of an amount as damages on each. No signature appears on the typed Instruction as contained in our record nor is there any other reproduction of the form in the record, but, of course, we take the court's statement to be true. There ensued some further colloquy, the court indicating that it felt that it was clear that the 'verdict' amounted to a finding for plaintiff on both 'personal and property damage,' and that 'the Court could have corrected the form of the verdict here in the presence of counsel and the jury or could have sent the jury back to the jury room to rewrite the verdict.' At the conclusion of this presentation the court overruled defendants' motion to strike and for a mistrial. No effort was made to call the jury back or to correct the 'verdict' further; and judgment was entered as already indicated. At the hearing on defendants' after- trial motion for judgment or, in the alternative, for a new trial, plaintiff's counsel presented as exhibits affidavits from all the jurors. In substance, these merely recited that all twelve jurors had decided and 'found the issues for the plaintiff,' but that only ten could agree on the amounts stated. The after-trial motion was overruled and this appeal duly taken.

We have been cited to no case involving a situation like this one, nor have we found any in our own research. We note first, therefore, the principles generally held applicable where defective verdicts have been presented. A verdict is the sole basis of the judgment to be entered in a jury case and if it is not sufficient to sustain the judgment, the latter is void. Spangler-Bowers v. Benton, 229 Mo.App. 919, 82 S.W.2d 170, 175; Newdiger v. Kansas City, Mo.App., 106 S.W.2d 51, 52, aff. 342 Mo. 252, 114 S.W.2d 1047; Singleton v. Kansas City Baseball & Exhibition Co., 172 Mo.App. 299, 157 S.W. 964; Proctor v. Garman, 203 Mo.App. 106, 218 S.W. 910. The verdict must be responsive to all the material issues, and it should find the issues for or against the respective parties. Lummi Bay Packing Co. v. Kryder, Mo.App., 263 S.W. 543; Albrecht v. Piper, Mo.App., 164 S.W.2d 105; Singleton, supra; Proctor, supra; Newdiger, supra. Mere surplusage in a verdict has often been disregarded. Kimberlin v. Roberts, 341 Mo. 267, 107 S.W.2d 24, 27; State ex rel. St. Louis Public Service Co. v. Becker, 334 Mo. 115, 66 S.W.2d 141, 144; McMonigal v. North Kansas City Development Co., 233 Mo.App. 1040, 129 S.W.2d 75. It has been stated that the courts will construe a verdict liberally in an effort to ascertain the jury's intent. 53 Am.Jur., Trial, Sec. 1052, p. 716. And, of course, the court considers a verdict to see if it can find a reasonably clear intent expressed therein, though perhaps inartfully expressed. State v. Russell, Mo., 265 S.W.2d 379, 44 A.L.R.2d 617; Shuff v. Kansas City, 221 Mo.App. 505, 282 S.W. 128; 89 C.J.S. Trial Sec. 496, pp. 157-158.

Section 510.230 RSMo 1959, V.A.M.R. and Rule 71.02 of this court, V.A.M.R. provide that in 'every issue for the recovery of money only, * * * the jury shall render a general verdict.' Essentially, a general verdict is a finding or pronouncement by the jury on all the issues submitted to it, including, of course, the issue of damages, if appropriate. Will v. Hughes et al., 172 Kan. 45, 238 P.2d 478, 484; Gilmore v. Mulvihill et al., 109 Mont. 601, 98 P.2d 335. And see Home Trust Co. v. Josephson, Banc, 339 Mo. 170, 95 S.W.2d 1148, 1155, 105 A.L.R. 1063. After the reception of a verdict and the discharge of the jury, the court may correct or amend it in mere matters of form, but never in matters of substance. McIlvain v. Kavorinos, 358 Mo. 1153, 219 S.W.2d 349; State ex rel. St. Louis Public Service Co. v. Becker, 334 Mo. 115, 66 S.W.2d 141, 144; Powell v. Bierman, Mo.App., 22 S.W.2d 854; Boudreau v. Myers et al., Mo.App., 54 S.W.2d 998. And the court may always require the jury to retire again to correct its verdict or to find a new one, in case of defects or insufficiency. Singleton v. Kansas City Baseball & Exhibition Co., 172 Mo.App. 299, 157 S.W. 964; Blackman v. Botsch, Mo.App., 281 S.W.2d 532; Lindstrom v. Kansas City Southern Ry. Co., 202 Mo.App. 399, 218 S.W. 936, 937; Turley v. National Ammonia Co., Mo.App., 299 S.W. 53. It has also been held that the trial court could properly require the jury to correct its verdict in open court. Buttron v. Bridell, 228 Mo. 622, 129 S.W. 12; Christopher v. White, 42 Mo.App. 428. Indeed, verdicts have been...