O'BRIEN v. Mobil Oil Corp.

749 S.W.2d 457, 1988 Mo. App. LEXIS 622, 1988 WL 40994

• Court: Missouri Court of Appeals
• Decided: May 3, 1988
• Docket: 53266, 53327
• Status: Published

Opinions

PUDLOWSKI, Judge.

In this action for false arrest, the jury returned a verdict in favor of the plaintiff, Eugene O’Brien, and against both defendants, Mobil Oil Corporation and Winfred R. Collins. By its verdict, the jury awarded the plaintiff no actual damages and $2,500 punitive damages against each of the defendants. The court refused to accept the verdict and inquired as to what action the parties desired the court to take in light of the inconsistent verdict. Plaintiff’s only request was that the jury be polled. Defendants asked for a judgment in their favor. The court subsequently discharged the jury. Post-trial motions were filed by the plaintiff for correction of the verdict or alternately for a new trial raising the issue of the inconsistency of the verdict. The trial court, relying upon Douglass v. Safire, 712 S.W.2d 373 (Mo. banc 1986), denied the motion. In addition, the court granted the defendants’ motion for a judgment notwithstanding the verdict.

The plaintiff contends that the trial court erred in failing to grant a new trial because the jury’s verdict was inconsistent and defectively contradictory in that the jury found that “the plaintiff was the victim of an arrest which was intentionally inspired without just cause or excuse and against his will but failed to award actual damages while awarding punitive damages.”¹ Plaintiff’s contention that the trial court erred in failing to grant his motion for a new trial, however, cannot be properly raised on appeal. The Supreme Court of Missouri has held: “[A] claim that a verdict is inconsistent to the point of being self-destructive must be presented to the trial court before the jury is discharged. Otherwise the claim of inconsistency will be held to have been waived.”² Id. at 374.

The verdict was inconsistent in that it provided for punitive damages without the required finding of actual damage. See Melville v. Cheryl Scott Real Estate Co., 664 S.W.2d 529 (Mo.App.1983). There can be no punitive damages without an award of actual damages. Id. The plaintiff did not request that the jury be returned for further deliberation to clear up the inconsistency in the verdict, but rather waited to raise the point in post-trial motions and on appeal. Without affording the trial court the opportunity to correct any inconsistency in the jury’s verdict, plaintiff’s claim of inconsistency has been waived. Douglass, 712 S.W.2d at 374.

In his brief, plaintiff attempts to distinguish the Douglass case by stating that, while the Douglass verdict was inconsistent, this verdict “was more than merely inconsistent or illogical but attained the level of being defective because it was contradictory in that it expressed opposite findings.” This type of verdict, however, appears to be precisely the type of verdict contemplated by the Douglass court when it decided: “We now hold that a claim that a verdict is inconsistent to the point of being self-destructive must be presented to the trial court before the jury is discharged.” Id. at 374 (emphasis added). It appears that the “self destructive” nature of the verdict is exactly what plaintiff is claiming in this case. This argument is without merit.

Plaintiff urges this court to follow a line of cases headed by Stroud v. Govreau, 495 S.W.2d 682 (Mo.App.1973), which apparently hold that a claim of error may be predicated upon an inconsistent verdict despite the fact that an appellant has made no request that the jury be returned. The Supreme Court of Missouri, however, has stated that such cases should no longer be followed. Douglass, 712 S.W.2d at 374. These cases do not, therefore, provide any support for plaintiff’s argument.

Because of the result we have reached, it is unnecessary to address the issues presented by respondents in their cross-appeal. The decision of the trial court denying appellant a new trial and granting a judgment notwithstanding the verdict for the defendants is therefore affirmed.

STEPHAN, P.J., concurs. SATZ, C.J., concurs in separate opinion.

1 . Although it was not an issue in this appeal, we direct the parties’ attention to our recent decision in Stewart v. K-Mart Corporation, 747 S.W.2d 205 (Mo.App.1988) (holding that actual malice is required for punitive damages in false arrest actions).

2 . During oral argument before this court, the appellant directed our attention to Wright v. Jasper’s Italian Restaurant, Inc., 672 F.Supp. 424 (W.D.Mo.1987) (holding that no actual damages need to be awarded by the jury to support an award of punitive damages in "direct injury torts” such as false arrest and citing Herberholt v. dePaul Community Health Center, 625 S.W.2d 617 (Mo. banc 1981)). Nonetheless, the opinion, which purports to be applying Missouri substantive law, is inapplicable to this case because our decision is based on the procedural rule of Douglass quoted above.