Young By and Through Young v. Davis, No. 14322

• Court: Missouri Court of Appeals
• Writing for the Court: MAUS; PREWITT, P.J., and FLANIGAN; HOGAN; HOGAN
• Citation: 726 S.W.2d 836
• Parties: Dawn YOUNG, A Minor, By and Through Her Next Friend, Terry YOUNG, and Terry Young and Mary Beth Young, His Wife, Plaintiffs-Respondents, v. Lee DAVIS, Defendant-Appellant, and Bobby Brewer, Defendant-Third Party Plaintiff-Appellant, and William Frank Watson, III, Third Party Defendant.
• Docket Number: No. 14322
• Decision Date: 11 March 1987

Page 836

726 S.W.2d 836 Dawn YOUNG, A Minor, By and Through Her Next Friend, Terry
YOUNG, and Terry Young and Mary Beth Young, His
Wife, Plaintiffs-Respondents,
v.
Lee DAVIS, Defendant-Appellant,
and
Bobby Brewer, Defendant-Third Party Plaintiff-Appellant,
and
William Frank Watson, III, Third Party Defendant. No. 14322. Missouri Court of Appeals,
Southern District,
Division Two. March 11, 1987.

Ronald D. White, Rolla, Joseph W. Rigler, Joplin, and J. Max Price, Price & Beger, Salem, for defendants-appellants.

Don M. Henry and David H. Dunlap, West Plains, for plaintiffs-respondents.

MAUS, Judge.

This appeal presents a unique situation. The appellants' principal point is that "[t]he Court of Appeals does not have jurisdiction to hear this matter on appeal since there is no final judgment of the trial court which disposes of all of the parties and all of the issues." Nonetheless, they urge this court not to merely dismiss the appeal. They urge the court to reverse the judgment of the trial court and remand the case for a new trial. The respondents contend the judgment is final and should be affirmed.

Page 837

The case has the following factual background. Dawn Young was riding as a passenger on a motorcycle driven by William Frank Watson, III, in a southerly direction on a blacktop rural road. Bobby Brewer was driving a van in a northerly direction on that road. The van was owned by Lee Davis. Brewer started to make a left turn into the driveway to the Davis home. That home was located on the west side of the blacktop road. While making the turn, Brewer saw the approaching motorcycle after it crested a hill north of the driveway. Brewer stopped the van, leaving several feet of blacktop between the front and rear of the van and the ditches. Watson was unable to stop or avoid the van. The motorcycle collided with the right side of the van.

The appeal has the following procedural background. In one count of the petition, Dawn Young sued Brewer and Davis for personal injuries. In another count of that petition, Terry Young and Mary Young, parents of Dawn Young, asserted a derivative claim against Brewer and Davis. Brewer filed a Third Party Petition for contribution against Watson. Watson filed a counterclaim for personal injuries against Brewer.

Watson failed to appear for trial. His attorney was permitted to withdraw. At the conclusion of the evidence, the jury was instructed upon the two counts of the petition. The jury was given forms of verdict upon those two counts. No instructions were tendered or given submitting the Brewer claim against Watson. No instructions were tendered or given submitting the Watson counterclaim. There were no forms of verdict pertaining to those claims. The jury returned a verdict for Dawn Young for $65,000 against Brewer and Davis. It returned a verdict for Terry Young and Mary Young for $16,000 against Brewer and Davis. In each verdict the jury apportioned fault as follows: Dawn Young--0%; Watson--75%; and Brewer--25%.

The trial court entered a judgment in accordance with those verdicts. The defendants-appellants Brewer and Davis filed a motion for a new trial. Among other things, that motion alleged the trial court erred in "not giving a form of verdict so that the jury could find issues against Third Party Defendant, William Frank Watson, III. Although no verdict form was tendered by Defendant, Lee Davis, or Defendant and Third Party Plaintiff, Bobby Brewer, the Court erred in not giving a verdict form such as set forth in MAI 36.16." That motion was heard and taken under advisement. The trial court entered an amended judgment. That amended judgment granted a remittitur of $140.45 on the judgment in favor of Terry Young and Mary Young. It also awarded Brewer and Davis a judgment against Watson for 75% of the judgment against them.

As stated, the appellants' principal point is that there is no final judgment. They do present two supportive points. The first is that the trial court erred in failing to instruct the jury as to all issues and all parties. They cite no authority to establish that to be the duty of the trial court. The lack of foundation for that point is demonstrated in that portion of this opinion dealing with the appellants' principal point.

The second supportive point is that the original judgment was not supported by a jury verdict disposing of all issues as to all parties and is void. They cite cases such as Thorne v. Thorne, 350 S.W.2d 754 (Mo.1961). Those cases deal with verdicts that cannot be construed or found to dispose of the issues submitted to the jury. "The general rule is that the verdict must be responsive to all the material issues submitted and should find the issues for or against the respective parties." MFA Cooperative Ass'n of Ash Grove v. Elliott, 479 S.W.2d...