167 Mo. App. 563 | Mo. Ct. App. | 1912
Maxine Hughey, an infant, commenced this action-by her next friend -to recover damages for personal injuries she alleged were caused by negligence of the defendants, Hugo Eyssell, August Eyssell and Julia Kinney. Separate answers were filed by the several defendants. In the course of the trial plaintiff dismissed Julia Kinney from the .action and at the conclusion of plaintiff’s evidence the court
It will be seen from the foregoing that the jury refused to follow the instruction of the. court directing them to find a verdict in favor of Hugo Eyssell. On the contrary,, the verdict being general may be interpreted to be against both him and his co-defendant. How is it to be known that the jury did not intend that it should
It is a fundamental law that a verdict must dispose of all the issues and all the parties to a cause, and that not to do so is a fatal defect. Dailey v. City of Columbia, 122 Mo. App. 21. To the cases cited in support of that case we will add: Winkelman v. Maddox, 119 Mo. App. 658, 662; Miller v. Bryden, 34 Mo. App. 602, 608 ; Eichelmann v. Weiss, 7 Mo. App. 87, 89; Ferguson v. Thacher, 79 Mo. 511, 514; Jenkins v. Parkhill, 25 Ind. 473. In the first three of these cases, as in the case at bar, it was the defendant against whom the verdict'was rendered who objected to its sufficiency and appealed on account thereof. In Eichelmann v. Weiss, the court said: “The defendants, if liable, are jointly liable, and. subject to contribution; and those against whom judgment was rendered have a right to have the question determined whether Weiss is to bear any share of the burden; and being prejudiced by the error, may take advantage of it.” The same reasons were given in Schweickhardt v. St. Louis, 2 Mo. App. 571, 583.
The fact that the trial court instructed the jury to find for Hugo Eyssell does not aid the verdict. The same thing occurred in Wood v. McGuire, 17 Ga. 361, except there the instruction was to find against one of the plaintiffs and the jury failed or refused to do it. The trial court there, as here, concluded, as said in that case, that it “could work the verdict into form and make it serve.” But the Supreme Court said that could only be done where the jury have expressed their meaning in an informal manner, and not where there are substantial omissions. The court proceeded to say in that case that: ‘ ‘ The difficulty here is, not that the jury have expressed their meaning in an informal manner, but they have failed to express any'opinion at
We think the judgment must be reversed and the cause remanded.