*1 pro- applicable for the 57.01(c) Rule are party answers from whom tection
interrogatories sought under this rule.” are 56.01(a), Rule V.A.M.R.
Civil prohibition preliminary rule interrogatories 1 permanent
made quashed interrogatory 6. No.
7 and STONE, Special
All judge, concur and
concurs.
DONNELLY, J., be- participating
cause not court when the member
cause was submitted. HALEY, Plaintiff-Respondent, Dee
Gerald COMPANY,
BYERS TRANSPORTATION Inc., and Deem, Kenneth De fendants-Appellants.
No. 50919.
Supreme Missouri, Court of
Division No. 2.
Sept. 13, 1965. Rehearing
Motion or Transfer to Court En Denied Banc Oct. 1965. *2 Blumer, Q. Wright,
Thaine Blumer & City, plaintiff-respondent. Kansas for Beamer, McKenzie, Williams, Jack Merrick, Stubbs, City, Beamer & Kansas Houlehan, Edward Houlehan & Water- J. man, City, defendants-appel- Kansas for lants.
FINCH, Judge. appeal a for Defendants from $20,000.00. Jurisdiction is conferred in- amount volved.
This out a case arises collision which 24, 1961, February occurred on at about U„S. A.M., 1:00 Highway point on 40 at á about three and one-half miles east of the city Odessa, limits of Missouri. At point the highway approximately feet wide and carried both east and west- bound traffic. The Hillcrest Service Station and Cafe located on the south side highway and was on the crest of hill. driveway easternmost into .the Hillcrest Station approximately 300 feet east the crest of the hill.
Shortly occurred, before the collision unit tractor-trailer of Southwest Lines, Barnett, driven one was headed up Transportation Aft- As Company, 40. he came Inc. Highway west speed commenced, Hillcrest, set- his er trial of that hill toward he reduced suit $80,- signalled indicator tlement was made with Southwest for with turn the Hillcrest dismissed her an to turn into 000.00 and show intention against Byers prejudice. drive- 35 to 40 feet from the Subse- Station. When without quently, plaintiff line and way, cross center filed a new suit he -started to *3 Inc., Byers Company, and Transportation into easternmost continued turn the to driver, is Deem, driveway Station. its and this Hillcrest Kenneth of Service Byers present appeal in was Meanwhile, of the case the tractor-trailer unit which the Transportation Company, Inc., sought driven In suit to taken. this latter Deem, primary (driv- following the South- recover on both was truck, least in Freight traveling ing at closer 300 feet violation west Lines than § rear, 1959, V.A.M.S., fail- to both and a according feet the doc- slow) humanitarian Deem and ure to and on the Barnett. sought Deem to recover trine. Defendant driving Dodge auto- Haley, Plaintiff personal injuries. on a counterclaim for mobile, traveling Highway east on was damage ten- instruction The measure of came highway. He in the of the south lane as by plaintiff given by dered and the the the hill as the over crest of Southwest as Instruction No. 9 was follows: Hillcrest Freight going onto the unit was right driveway. the car collided with His plaintiff on you “If find in favor the Freight rear dual of the Southwest wheels him such petition, you must award then wheel, trailer, shearing away right the front justly you fairly and sum as believe will Haley’s au- grille fender and of defendant you compensate damages as him for such doing damage some the tomobile and past in and sustained the believe marks impact, according to trailer. This future reasonably in certain to sustain the debris, apparently near the and occurred any, if negligence, a direct the result of driveway into edge east the easternmost of the defendants. side- Haley Hillcrest car then slid The your ver- arriving “In at the amount ways apparently highway, the down the dict, -you may take into consideration in the partly partly in north lane the and following: oc- -highway. south A collision lane of the -unit, curred tractor-trailer with the bodily “First, the the and extent of nature Byers tractor the left the front wheel of injuries: Haley car. colliding the with the left side of may regard you “In consider: injured badly Plaintiff injuries; the (a) The duration paraplegic result of the accident. He aas pain mental physical (b) the occur- memory testified he had no past in the anguish suffered speed the testimony rence. There reasonably certain plaintiff is and which car and trucks as the future; in to suffer approaching the Hill- they up came hill Station, and de- crest as to marks Service disability; (c) Plaintiff’s position of highway, bris on as to the collision, as to after the the vehicles “Second, earnings loss of distances, necessary stopping but it is not past; and has sustained in the disposition we to detail in -viewof the these “Third, impairment of appeal. make of this future, labor capacity to work reasonably certain plaintiff is brought originally Haley Plaintiff Lines and sustain. Freight against you sum,
“After jurors have determined such signed by nine who you $80,000 signed verdict, must deduct had plus which Southwest the -first one addi- paid plaintiff. juror. has In the tional Lines equal payment event such to or exceeds Judgment $20,000.00 in favor of and dam- on this second was entered verdict. age, your then verdict must be for defend- ants.” Defendants did file motions for a new They ‘joint asking trial. filed motion After the jury ap- had deliberated for judgment to set court, aside its and enter proximately hours, five it announced that it with the first accordance had reached a verdict. That verdict was as or, verdict which zero damages was for follows: alternative, enter in ac- “We, jury, find the issues in favor of cordance with defendants’ motions for di- *4 plaintiff the against and the defendants rected verdict. plaintiff’s petition and do assess What, then, of verdict the first returned damages dollars, at the sum of zero and we by jury the it found the in wherein issues plain- further find the issues in favor of the plaintiff favor damages assessed and his against and tiff the defendant Deem on de- at zero dollars? fendant Deem’s counterclaim.” This ver- signed dict was jurors. nine It is in a suit clear that for dam Following verdict, the reading the ages personal jury for the is to jury court asked the if this was their ver- verdict, general render a and where the dict, they replied and it that was. Plain- plaintiff, verdict is jury for the is the tiff’s counsel then advised the court that in recovery. assess the the Rules opinion his verdict,” this a legal was “not 71.06, V.A.M.R., 71.02 and and 510.230 §§ court, and the objections over the of de- 1959, and V.A.M.S. It also fendants, sent the back "jury to reconsider well in is established such a case if the that verdict,
its with this admonitioni jury gen returns a verdict which is not a verdict, plaintiff eral for or which finds but gentlemen, “Ladies and question a has recovery, fails to assess the amount of or here, been raised I properly, and think necessarily par in is defective some you should read Instruction No. again 9 in ticular, may the trial refuse to ac regard your verdict to the form of the cept may jury the verdict and direct the verdict, you so 1 suggest go back and con- retire and correct verdict or a new its find sider the regard Instruction 9 in No. to this Mo., Thorne, one. 350 Thorne v. S.W.2d case, instructions, and course, all of the 754, 757, and therein collected and cases you back, are to you consider. I must send time, cited. At the the courts same will sorry.” I’m liberally construe a verdict to ascertain the After jury intent, the jury’s inartfully expressed. had deliberated for an ad- even if period, ditional jury again Thorne, supra. advised it Thorne If such intention v. verdict, had reached ascertainable, a which was as fol- is includes and verdict Iowsj findings required, prop on the issues it Is a er should be verdict and entered “We, jury, in the issues favor of find circumstances it thereon. Under such plaintiff against and the defendants on would be error for trial court to refuse assess do accept verdict. damages $20,000.00, at the sum of and we respondent plain- position find the favor of further issues in It is the that the against tiff and finding the defendant Deem on for verdict the issues assessing damages counterclaim.” This his at zero dollars is in- Deem’s self-contradictory. The Freight consistent and re A Lines. Springfield, only inju- cent decision of the Court one entitled to satisfaction for Appeals in case accordingly jury of Boone v. Richard ries received and son, 68, Mo.App., in is cited against S.W.2d instructed to credit or deduct from support position. In that case the damages of that as determined total plaintiff sought recovery personal Plaintiff, in $80,000.00. for them the sum juries. The issues jury’s therefore, found the verdict to verdict entitled damages “at and assessed her damages amount as total exceeded the Appeals $80,000.00. the sum of 0.” The Court of sum of $ held verdict inconsistent and self-con tradictory for a new and remanded the case returned recited first verdict authority
trial. There are two lines of jury that the issues for re wherein cases such as the Boone case against defendants. This indicated both covery unliquidated amount for an that the found that defendants sought. and some state The Federal Courts guilty and Deem were jurisdictions ef treat such or con negligence directly caused that such and enter fect verdict for the defendant tributed of Southwest with conduct accordingly. Association plaintiff. may It injury Lines to cause Co., Railways U.S Western Riss be noted that in the same verdict 133; Royal .App.D.C. Indem 299 F.2d *5 found the issues for Township, nity Lake Co. v. Island 177 counterclaim, fur Deem on his defendant 408, Minn. 225 291. Others reach the N.W. jury con evidencing the fact that ther of v. same that in the case Boone result as of actionable decided the issue sidered and Richardson, supra. never This court has Having factual de made this negligence. precise question is not ruled that case, upon termination, duty for the called to do so in this it then became In not factual are the same. situations damages. Unlike to jury assess payment no of Boone case there had been however, not case, jury was the Boone pro plaintiff any kind or any to actual in damages as the total to fix told those spective apply defendant which would by these caused juries to have been found damages suffered. against whatever were Instead, they instructed were defendants. plaintiff injured of If a result de was as of total amount to determine the to re negligence she entitled fendant’s $80,- of sum damages deduct the and then if, as cover from defendant therefor that jury wrote verdict the 000.00. In their find, guilty of jury seemed to damages recover they assessed in not negligence. If Does that at zero dollars. able this ele jured one of the essential then three and self-con the verdict inconsistent make missing no ac ments and there was If we are so. do not think tradictory? have We and there should negligence tionable inconsistent, that the conclude verdict Schaefer v. to for defendant. been verdict per jury failed Mo., that the Biscoe must assume Accardi, [6]; we 315 S.W.2d and determin considering Kowalski, Mo., its task of Un form 290 S.W.2d [5]. recoverable damages of Ap ing of the amount the Court der such circumstances ignore must herein. We against defendants it could not resolve the peals that stated that jury concluded par possibility that the finding for either a definite verdict as their negligent, .that were be these defendants ty case should retried. and that the -with con or contributed negligence caused Lines cause duct already In case the n plaintiff’s total $80,000.00 by plaintiff, and that paid injury to the sum of had been $80,000.00 damages Rehearing therefrom amounted Motion ior On or or under these less. To assume conclude per- jury
circumstances that the failed to PER CURIAM. duty make the neces- form its and failed to sary finding damages is of fact as to not rehearing plain motion On justified. just logical It is to assume that opinion complains that the of the court tiff they plaintiff’s' did consider the extent of overlooked the assessment of court costs. damages that and concluded herein, clarity In the interest of we so do already the amount did not exceed the sum entry though even for de paid. liber- we construe verdict When fendants on which was intent, ally jury’s in order to ascertain the implied necessarily directed defendants that do, required we must conclude we are should have their costs thereon. Such a performed that the its function result is dictated § passed damages. There is on the issue V.A.M.S., provides that “if inconsistency no which dictates otherwise. any recover damages he shall re cover his costs.” It follows that It is true that the did not do judgment goes shall not recover costs when and, as instructed the last sentence hav nothing. him and he recovers paid ing already the amount suggests entry Plaintiff possibility equalled either or the amount exceeded in favor of for zero plaintiff’s damages, did not convert that Presumably pur dollars. this is for the That is not a verdict for the defendants. pose taxing plain costs favor of to make the verdict bad. The sufficient plaintiff, tiff. Under the statute hav necessary jury made the factual determina ing any damages, recovered cannot have respect tions with to actionable opinion indicates, damages. There were no costs. As the If the other factual issues to determine. jury finding herein to a amounted judg findings net effect of these was that *6 for the judg defendant and that is the ment should entered in favor of defend be ment to be entered. ants, The fail that was a matter of law. recite in its verdict ure to so Defendant Deem asserted a coun deficiency was not as to vitiate terclaim and favor That can verdict or make it inconsistent. Deem thereon. Costs entry judgment be in the on cared for in connection therewith are be assessed the verdict. against defendant Deem. re- The trial can allocate the costs in versed remanded direc- cause with opinion. accordance with this tions to enter for defendants on original opinion Our is modified as here- plaintiff’s petition in accordance with this set out. The motion for a re- opinion.
hearing of to transfer to the court en banc Judges All of the concur. is overruled.