Mahan v. General Gas Co.

634 S.W.2d 561, 1982 Mo. App. LEXIS 2951
CourtMissouri Court of Appeals
DecidedMay 21, 1982
DocketNo. 12340
StatusPublished
Cited by1 cases

This text of 634 S.W.2d 561 (Mahan v. General Gas Co.) 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
Mahan v. General Gas Co., 634 S.W.2d 561, 1982 Mo. App. LEXIS 2951 (Mo. Ct. App. 1982).

Opinion

PREWITT, Presiding Judge.

Plaintiff contends that the trial court erred in entering a judgment in favor of defendant based on a jury verdict which found in favor of plaintiff but assessed his damages at “$ 0 ”. Pursuant to Rule 81.13(a), the parties filed an agreed statement which included the following:

“(a) This is a personal injury action arising from a rear-end vehicular collision wherein a truck owned by Defendant struck the left rear of a car operated by Plaintiff as Plaintiff was making a left turn on Highway 5 immediately North of Lebanon, Missouri.
(b) Plaintiff’s car was pushed forward by the impact, after which, Plaintiff proceeded North on Highway 5 a short distance made a left turn and returned back to a point on a side street and stopped where Defendant’s driver had parked his truck.
(c) Plaintiff had no visible injuries at the scene and stated he thought he was okay.
(d) Plaintiff’s car had damage on the left rear; Plaintiff testified the frame of the front seat was bent as a result of the accident, and that his insurance adjuster had stated it would take $50.00 to fix it.
(e) Plaintiff was going to a job interview at the time of the accident. After the accident, Plaintiff went to the job interview and received the job as a salesman on a delivery route.
(f) Plaintiff testified that he started work at his new job, but almost immediately developed back pain which caused him to seek medical attention and resulted in Plaintiff missing several days work.
(g) Plaintiff testified regarding his alleged injuries, present complaints and that he had been treated by his family physician, a chiropractor and an orthopedic specialist for his alleged injuries.
(h) Plaintiff’s orthopedic specialist, Dr. Harvey Michael of Springfield, Missouri, testified that in his opinion, Plaintiff had sustained a permanent injury as a result of the accident in the form of soft tissue injury and a narrow disc space or degenerative disc disease. There was no other medical witness on behalf of Plaintiff.
(i) Defendant’s medical expert, also an orthopedic specialist, Dr. Charles Ash, of Springfield, Missouri, testified he had examined Plaintiff and in his opinion, the disc space was normal, there was no degenerative disc disease present in Plaintiff and no objective evidence of any personal or permanent injury.
(j) The orthopedic specialists disagreed with each other as to whether an impact from the rear could cause the injuries complained of by Plaintiff.
(k) There was no evidence presented concerning medical expenses or lost wages.
(7) There was no evidence presented concerning joint tortfeasors.
(m) Plaintiff’s counsel stipulated at the close of all the evidence that Plaintiff was not making a claim for property damage.
(n) At the close of all the evidence, it was agreed by counsel for both parties that no evidence had been presented concerning medical expenses or lost wages and the Trial Court then granted a directed verdict in favor of Defendant and against Plaintiff as to any claims for lost wages or medical expenses.
(o) Plaintiff’s verdict directing instruction was based on MAI 17.16. A copy of [563]*563said instruction is included in the legal file and incorporated herein by reference.
(p) Plaintiff’s damage instruction was based on MAI 4.01. A copy of said instruction is included in the legal file and incorporated herein by reference.
(q) The Trial Court gave no instruction to the jury concerning the absence of a claim for property damage or the directed verdict in favor of Defendant as to claims for lost wages and medical expenses.
(r) The jury was advised by counsel during closing argument that in regard to the damage instruction, Plaintiff was not claiming for medical expenses, lost wages or damage to his car and these matters should not be considered in regard to their computation of damages for which Plaintiff should be compensated. The jury was further advised to consider only whether or not Plaintiff should be compensated for personal injury.
(s) The jury was provided a verdict form based on MAI 36.01 (tendered by Plaintiff) and returned their verdict on said form.”

Plaintiff’s claim was submitted to the jury by Instruction Number 5 which stated:

“Your verdict must be for plaintiff if you believe:
First, defendant’s vehicle came into collision with the rear of plaintiff’s automobile, and
Second, defendant was thereby negligent, and
Third, as a direct result of such collision, plaintiff sustained damage unless you believe plaintiff is not entitled to recover by reason of Instruction Number 6 .”

Instruction 6 was a contributory negligence instruction tendered by defendants.

Plaintiff contends that the verdict was inconsistent and that a judgment could not be entered on it. He relies upon Boone v. Richardson, 388 S.W.2d 68 (Mo.App.1965) and other cases following it; Allen v. Andrews, 599 S.W.2d 262 (Mo.App.1980); Porter v. Mallet, 596 S.W.2d 451 (Mo.App.1980); Pietrowski v. Mykins, 498 S.W.2d 572 (Mo. App.1973); Stroud v. Govreau, 495 S.W.2d 682 (Mo.App.1973); Kennedy v. Tallent, 492 S.W.2d 33 (Mo.App.1973).

In contending that the jury’s verdict was consistent with the facts before them, defendant relies primarily on Haley v. Byers Transportation Company, 394 S.W.2d 412 (Mo.1965). There was no evidence of a joint tort-feasor or of a settlement in the present case as in Haley, but respondent emphasizes that “there was evidence of the existence of damages for which the jury was not to compensate plaintiff, i.e., property damage, medical expenses and lost wages.” Respondent also contends that Boone should no longer be followed and we should follow the cases that treat a verdict in favor of the plaintiff and assessing “$0” damages as a verdict for defendant. See Haley v. Byers Transportation Company, supra, 394 S.W.2d at 416; Annot., 49 A.L.R.2d 1328 (1956).

A verdict should be considered in light of the record to see if the court can ascertain the jury’s intent, even when the verdict is inartfully expressed. Boone v. Richardson, supra, 388 S.W.2d at 76.

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Bluebook (online)
634 S.W.2d 561, 1982 Mo. App. LEXIS 2951, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mahan-v-general-gas-co-moctapp-1982.