Heitner v. Gill

973 S.W.2d 98, 1998 Mo. App. LEXIS 787, 1998 WL 213526
CourtMissouri Court of Appeals
DecidedApril 21, 1998
DocketNo. 21458
StatusPublished
Cited by7 cases

This text of 973 S.W.2d 98 (Heitner v. Gill) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Heitner v. Gill, 973 S.W.2d 98, 1998 Mo. App. LEXIS 787, 1998 WL 213526 (Mo. Ct. App. 1998).

Opinion

PARRISH, Presiding Judge.

Melissa Heitner (plaintiff) brought an action for personal injuries sustained in an automobile accident against Murphy Gill and Ann Allman (collectively referred to as defendants). The trial court entered judgment for defendants following a jury trial. This court remands with directions for the trial court to enter findings concerning its hearing on an allegation of juror nondisclosure.

Plaintiff was injured in an automobile accident that occurred March 4,1990. She was a passenger in a pickup truck driven by her then-husband, Scott Heitner. They were traveling north on Highway 71 in McDonald County.

Defendant Murphy Gill was also traveling north on Highway 71. His vehicle was following the Heitner vehicle. Both vehicles were traveling at a speed of about 40 miles per hour. They were separated by a distance of four to five car lengths.

The Heitners planned to meet plaintiffs sister at a convenience store at Anderson, Missouri. As they approached the store, the Heitner vehicle slowed. Mr. Gill saw the back end of the Heitner vehicle rise as if making a sudden stop. He saw no turn signal or brake lights. Mr. Gill applied his brakes and tried to swerve, but his vehicle collided with the Heitner pickup. The collision caused the pickup to roll onto its side into the southbound lane of traffic.

[101]*101Second, third-party defendant Scott Heitner, in any one or more of the respects submitted in Paragraph First, was thereby negligent, and Third, such negligence directly caused or directly contributed to cause damage to plaintiff Melissa Heitner.

[100]*100Defendant Ann Allman was operating a vehicle on Highway 71 southbound. She saw the Heitner vehicle stopped, or almost stopped, in the northbound lane. She testified that it looked as if the pickup were turning but there was no turn signal. She saw Mr. Gill’s vehicle approach the pickup rapidly from behind and saw the Heitner pickup pushed toward her on its side in her lane of traffic. Ms. Allman applied her brakes and veered to her right, but was unable to avoid a collision with the pickup. The force of the impact of the Allman vehicle with the pickup pushed the pickup back onto its wheels and into the convenience store parking lot.

An ambulance was called to the accident scene and plaintiff was taken to a hospital. She sustained a spinal cord injury, a collapsed lung and rib fractures. Surgery was performed on her arm and back. A physician who evaluated plaintiff for rehabilitation testified she was a T-10 paraplegic as a result of her injuries.

Plaintiff brought a negligence action against defendants seeking damages for personal injuries. Defendants brought separate third-party claims against Scott Heitner (third-party defendant) for indemnification or contribution in the event either defendant was found to be liable. Mr. Heitner filed no responsive pleading.

The trial court gave one “package” of jury instructions. It included separate verdict-directing instructions for plaintiffs claims against Mr. Gill and Ms. Allman, Instruction Nos. 6 and 7. The package had a single verdict-directing instruction on the issue of comparative fault with respect to defendants’ third-party claims against third-party defendant, Instruction No. II.1 A verdict form [101]*101was included in the package. It was returned, signed by nine jurors, completed as follows:

VERDICT
Note: Complete the following paragraph by filling in the blanks as required by your verdict. If you assess a percentage of fault to any of those listed below, write in a percentage not greater than 100%, otherwise write in “zero” next to that name. If you asses a percentage of fault to any of those listed below, the total of such percentages must be 100%.
On the claim of plaintiff Melissa Heitner for personal injury, we, the undersigned jurors, assess percentages of fault as follows:
Defendant Allman 0 % (zero to 100%)
Defendant Gill 0 % (zero to 100%)
Third party defendant Scott Heitner (zero to 100%) 100 %
TOTAL 100 % (zero to 100%)
Note: Complete the following paragraph if you assessed a percentage of fault to any defendant.
We, the undersigned jurors, find the total amount of plaintiffs damages to be $2,000,000.00 (stating the amount.)

[[Image here]]

The judgment recites that “the jury returned a verdict on a verdict form agreed to by plaintiff and defendants at the instruction conference”; that the verdict was signed by nine jurors assessing zero fault to each defendant “and 100% of the fault to third-party defendant Scott Heitner and assessing damages at $2,000,000.” It further states:

The verdict is accepted and judgment entered accordingly in favor of both defendants and against plaintiff and defendants are discharged from liability to plaintiff. The assessment of fault to third-party defendant Scott Heitner and the finding of damages is surplusage and not necessary to the general verdict since plaintiff had no pending claim against third-party defendant Scott Heitner and the third-party plaintiffs-defendants were found not to be at fault and therefore have no basis for a judgment over on their third-party petitions against the third-party defendant.

Plaintiff raises five allegations of trial court error. The first alleges error in not granting a new trial because of alleged intentional nondisclosure of information by a juror during voir dire. Three claims of trial court error are directed to closing arguments. The final allegation is that “[t]he trial court erred in setting aside the damage portion of the jury’s verdict, and in not setting aside the liability portion of the jury’s verdict.”

Point V is plaintiffs claim that the trial court erred in not setting aside the jury’s liability findings with respect to defendants and in setting aside the damage finding. It is without merit.

Defendants’ third-party actions were brought pursuant to Rule 52.11(a). Third-party defendant was not a party to the action brought by plaintiff — plaintiff did not sue Scott Heitner — but was a person who was or might have been liable to defendants for all or part of plaintiffs claim against them. However, the jury found no liability on the part of defendants.

Plaintiff did not prevail on her claim against defendants. The jury rendered a general verdict in favor of defendants on that claim. Since defendants were found not liable, the finding that plaintiff sustained damages from injuries not attributable to defendants was meaningless.2 The finding of [102]*102damages was not necessary to the general verdict that was rendered. The trial court rightly disregarded it as surplusage. Roberts v. Obremski 761 S.W.2d 291, 292 (Mo. App.1988).

Plaintiff also argues in Point V.that the verdict’s finding of no liability by defendants was inconsistent with the jury’s award of damages. Plaintiff asserts that this alleged inconsistency can only be resolved if the jury’s assessment of liability is set aside.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

China Worldbest Group Co. v. Empire Bank
373 S.W.3d 9 (Missouri Court of Appeals, 2012)
Braboy v. FEDERAL EXPRESS CORPORATION
238 S.W.3d 690 (Missouri Court of Appeals, 2007)
G & S Masonry, Inc. v. MJC Constructors, Inc.
164 S.W.3d 530 (Missouri Court of Appeals, 2005)
Fairbanks v. Weitzman
13 S.W.3d 313 (Missouri Court of Appeals, 2000)
Coats v. Hickman
11 S.W.3d 798 (Missouri Court of Appeals, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
973 S.W.2d 98, 1998 Mo. App. LEXIS 787, 1998 WL 213526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heitner-v-gill-moctapp-1998.