Opinion
No. WD 51100.
Opinion Filed: February 20, 1996.
APPEAL FROM THE CIRCUIT COURT OF ADAIR COUNTY, THE HONORABLE BRUCE NORMILE, JUDGE.
Before Ellis, P.J.; Ulrich, J. and Laura Denvir Stith, J.
Plaintiffs-Respondents Alva and Doris Martin brought this action for personal injuries, property damage, and loss of consortium resulting from an automobile accident caused by Defendant-Appellant Mary Ann Singleton. The jury assessed 50% of the fault to Mr. Martin and 50% of the fault to Ms. Singleton, and awarded total damages of $13,800 for Mr. Martin's personal injuries and $4,200 for property damage to Mr. and Mrs. Martin's pickup. It awarded no damages for loss of consortium. The trial court granted Mr. and Mrs. Martin's motion for a new trial as to damages for personal injuries and loss of consortium only, holding that the amount of damages awarded was so low as to be against the weight of the evidence. The trial court denied the Martins' alternative motion for additur.
Ms. Singleton appeals the grant of a new trial as to damages on three grounds: (1) it was an abuse of discretion to award a new trial as to Mr. Martin's personal injury damages in the absence of a finding of jury misconduct or bias and without first giving Ms. Singleton the option of additur; (2) Mrs. Martin was not entitled to a new trial on loss of consortium damages since the jury found she had suffered no loss of consortium, and that constitutes a finding of no liability, not just no damages; and (3) the trial court erred in failing to reduce the $4,200 for property damage to their pickup truck where, as here, they owned it as tenants by the entirety and Mr. Martin was 50% at fault.
For the reasons stated below, we affirm in all respects.
I. FACTUAL AND PROCEDURAL BACKGROUND
This suit arose out of a motor vehicle accident which occurred in October, 1993, between Defendant-Appellant Mary Ann Singleton and Plaintiff-Respondent Alva Martin.
Mr. Martin was 48 years old at the time of trial. Since 1972 he has been self-employed as a general contractor. He engages in plumbing, electrical and carpentry work, but his specialty is concrete work. Prior to the accident, Mr. Martin had some back problems, particularly in the neck, top ribs and low back areas. Mr. Martin was diagnosed by Dr. Furman, a chiropractor, as having a right "sacroiliac subluxation," which means that the point at which the spine connects with the pelvis is slightly misaligned. Dr. Furman's prognosis in 1992 was that Mr. Martin had a chronic back problem which could cause periodic problems.
At approximately 8:00 a.m. on October 28, 1993, Mr. Martin was driving his 1983 Ford 4-wheel pickup truck in a southerly direction on Missouri Highway 149 on the way to a concrete job. The residence of Mr. and Mrs. Amidei is located on the west side of Highway 149. The driveway intersects with Highway 149 just over the crest of a hill.
As Mr. Martin crested the hilltop at a speed of about 55 m.p.h. he saw a passenger car driven by Ms. Singleton in the Amidei driveway. Ms. Singleton did not see Mr. Martin and, despite his approach, she pulled out of the driveway and turned south on Highway 149. Mr. Martin hit his brakes and veered to the east across the center line of Highway 149 hoping Ms. Singleton would see him and stop. Ms. Singleton pulled out across the center line, however. To avoid Ms. Singleton, Mr. Martin then pulled back to his right and entered the ditch on the west side of the road. Mr. Martin's pickup struck the Amidei's mailbox and went through a fence before it flipped onto its side and then on its top, approximately 20 to 25 feet from the roadway. No contact occurred between Mr. Martin's pickup and the car driven by Ms. Singleton.
Immediately following the accident, Mr. Martin had "severe pain" in his lower back. Mr. Martin's pickup was towed to the repair shop and his wife, Doris, drove Mr. Martin to the concrete job. Mr. Martin stayed at this job for a couple of hours. He did not do any manual labor, but only supervised the work.
Mr. Martin then went to Dr. Moots' office. Mr. Martin was diagnosed as having a bruised kidney and a lumber ligamentous strain. He was given some medication for his sore back, shoulder and neck. Dr. Moots told Mr. Martin to take it easy for a few days and to come and see him in a week to ten days.
Mr. Martin returned to Dr. Moots on November 8, 1993, complaining of pain in his back and sides. Mr. Martin's back was x-rayed. A few days later, Dr. Moots called Mr. Martin and said "your back is broke." More specifically, Mr. Martin was diagnosed as have a fracture of the second lumbar vertebra ("L2") and was referred to Dr. Lyons, an orthopedic surgeon.
Dr. Lyons diagnosed Mr. Martin as having a 10 to 12 percent compression fracture of the anterior and middle columns of the L2 vertebra, with point tenderness over the lateral side of the L2-L3 interspace. Dr. Lyons prescribed both steroid and pain medication and a back brace. Mr. Martin was told that he probably would not be able to return to work until the following April. Even at that point, he would not be able to do any strenuous work.
Mr. Martin returned to Dr. Lyons in December, 1993, and in January and February, 1994. Mr. Martin's condition improved during this period of time. In February, 1994, Mr. Martin was discharged and told to follow-up on an as-needed basis.
Mr. Martin returned to light carpentry work in early April, 1994. Mr. Martin gradually reached the point where he could perform his former work duties, but only for shorter periods of time and not without pain in his back and sides.
Mr. Martin did not visit another doctor until March, 1995, when he saw Dr. Browning, an orthopedic surgeon, at the request of his attorney. At that point in time, Mr. Martin was still complaining of bilateral pain in the flank area of his back while walking and lifting.
Dr. Browning found that Mr. Martin had decreased sensation over his S-1 dermatome — an area on the outside of his leg that extends down to the ankle — which indicated some damage to the first sacral nerve. Mr. Martin also had tenderness and spasm of the lumbar spine, although he had a normal range of motion on the lower extremities.
Dr. Browning opined that the accident caused a compression fracture of the second vertebra, which had a 25 to 30 percent loss in height at that time, and injury to the interspinous ligament, the capsular ligaments around the facets, the anterior longitudinal ligament and possibly stretched the posterior longitudinal ligament. In addition, the injury to the vertebra was causing the disc between L1 and L2 to begin to degenerate, a condition which would continue. Mr. Martin was also developing traumatic arthritis.
Dr. Browning opined that Mr. Martin would continue to experience pain and that these areas could be aggravated much more easily than they could have been prior to the accident. The deformity and scar tissue on the ligaments are permanent conditions. Mr. Martin is also at a greater risk of rupture or herniation of the discs in this area due to the accident.
Mr. and Mrs. Martin filed suit against Ms. Singleton for damages arising from the automobile accident. Mr. Martin sought damages for his personal injuries. Mrs. Martin sought damages for loss of consortium, and both Plaintiffs sought damages for the pickup that was owned by Plaintiffs as tenants by the entirety.
Mr. Martin presented evidence that his medical bills totaled $1,273.73. He also claimed total lost earnings in the amount of $4,456.98, for missed work from October, 1993, until April, 1994, and sought damages for the disability, pain and suffering resulting from his injuries. Both Mr. and Mrs. Martin also claimed property damages for the loss of their pickup truck in the amount of $4,200.
The jury returned a verdict in the amount of $13,800 in favor of Mr. Martin on his personal injuries claim, and found damage to the pickup in the amount of $4,200. The jury assessed 50% of the fault against Ms. Singleton and 50% of the fault against Mr. Martin. The jury returned a verdict against Mrs. Martin on her loss of consortium claim.
Plaintiffs filed a motion seeking additur as to the damages awarded for the personal injury and loss of consortium claims. Plaintiffs requested the trial court to increase Mr. Martin's damages to $90,000 and Mrs. Martin's damages to $10,000. In the alternative, Plaintiffs requested a new trial as to damages on the personal injury and loss of consortium claims on the grounds that the jury's verdict was against the weight of the evidence.
The trial court denied Plaintiffs' request for additur, but found that the verdicts on the personal injury and loss of consortium claims were against the weight of the evidence, stating that:
The Court does not find any passion, prejudice or misconduct on the part of the jury, but does find that the jury made an honest mistake in weighing the evidence as to the nature and extent of Plaintiff Alva W. Martin's injuries and as to Plaintiff Doris Martin's damages and in fixing the damages on both Count I and Count II.
The trial court thus ordered a new trial on the issue of damages as to these claims.
As to the property damage award, prior to the entry of judgment the trial court received suggestions from both parties as to whether the amount awarded should be reduced by Mr. Martin's percentage of fault. After reviewing these suggestions, the trial court entered judgment for the Martins in the total amount of $4,200. It also ordered that no new trial would be awarded as to property damages.
Ms. Singleton appeals from the judgment of the trial court granting Plaintiffs' motion for new trial as to damages.
II. THE TRIAL COURT DID NOT ERR IN GRANTING A NEW TRIAL AS TO MR. MARTIN'S DAMAGES FOR PERSONAL INJURIES EVEN THOUGH IT DID NOT FIND BIAS OR PREJUDICE ON THE PART OF THE JURY AND DID NOT GIVE DEFENDANT THE OPTION OF ADDITUR
Under Point I, Ms. Singleton contends that the trial court erred in granting a new trial as to Mr. Martin's damages for personal injuries because: (1) the evidence did not support the finding that damages were so inadequate as to be against the weight of the evidence; (2) the trial court did not have the discretion to grant a new trial as to damages only absent a finding of bias or prejudice on the part of the jury; and (3) the trial court did not have the discretion to grant a new trial as to damages only without first giving Ms. Singleton the option of additur.
A. The Trial Court Did Not Abuse Its Discretion in Holding that the Verdict Was So Inadequate as to be Against the Weight of the Evidence.
Rule 78.02 gives the trial court the authority and discretion to grant "[o]nly one new trial . . . on the ground that the verdict is against the weight of the evidence." Rule 78.02; Pitman v. State Farm Mut. Auto. Ins. Co. , 714 S.W.2d 230, 231 (Mo.App. 1986). The discretion of the trial court to grant a new trial on this ground is "virtually unfettered." Pitman , 714 S.W.2d at 231. As explained in Robertson v. Cameron Mut. Ins. Co. , 855 S.W.2d 442 (Mo.App. 1993):
The standard of review to be applied by the appellate court is limited to a determination of whether there is substantial evidence sufficient to support a verdict in the moving party's favor. In the granting of a new trial, no abuse of discretion will be found if the record discloses substantial evidence to support a verdict for the party awarded the new trial.
Id. at 446 (citations omitted). See also Union Elec. Co. v. McNulty , 344 S.W.2d 37, 39 (Mo. 1961); Ray v. Gabbard , 886 S.W.2d 696, 697-98 (Mo.App. 1994). In reviewing the record on appeal this Court considers the "relevant evidence from a standpoint favorable to the trial court's ruling . . .". Underwood v. Brockmeyer , 318 S.W.2d 192, 194 (Mo. 1958).
Ms. Singleton contends that there was not substantial evidence on which the trial court could have concluded that the damages verdict was against the weight of the evidence. In particular, Ms. Singleton contends that Mr. Martin's damage award was adequate in light of the fact that the jury could have believed that Mr. Martin's preexisting back condition was responsible for many of the problems which he attempted to attribute to the accident.
While Mr. Martin did go to a chiropractor prior to the accident, he also often worked 12 hour days at physical labor and considered himself a healthy person. He had perfected a trade as a general contractor during the 20 years prior to the accident, a profession which necessarily involves some vigorous physical activities.
Following the accident, Mr. Martin was examined and treated by three different doctors, including two orthopedic surgeons. The uncontradicted medical evidence was that Mr. Martin had sustained a compression fracture of the second lumbar vertebra in which a portion of the vertebra was broken off — in other words, a broken back. Medication was administered to treat the pain and a back brace was prescribed. As a result of the accident, Mr. Martin suffered a permanent loss in the height of the vertebra of between 25 to 30 percent, permanent scar tissue from the stretched ligaments, the higher risk of future rupture or herniation of the disc in this area, and the permanent development of traumatic arthritis that will become more painful as time progresses.
Due to his medical condition, Mr. Martin missed approximately five months of work following the accident. While he was capable of resuming his prior work duties, the amount of hours he can now work is limited. He also has pain after he works which necessitates laying on the hard floor or on a waterbed to relieve the pain. Mr. Martin continued to suffer pain when walking and numbness down his legs after the accident.
Mr. Martin claimed $1,273.73 for medical expenses and $4,456.98 for lost earnings. When this amount is subtracted from the total verdict, it results in an award of $8,069.29 for Mr. Martin's past, present and future injury, disability, pain and suffering. Based on the evidence viewed in the light most favorable to Mr. Martin as the moving party, we find that there was substantial evidence from which the trial court could have concluded that the damages verdict was so inadequate as to be against the weight of the evidence. See Underwood , 318 S.W.2d at 194-95.
B. The Trial Court did not Err in Granting a New Trial on the Basis that the Verdict was Against the Weight of the Evidence, Even in the Absence of a Finding of Jury Misconduct, Bias or Prejudice.
Ms. Singleton nevertheless contends that the trial court did not have discretion to grant a new trial on the basis that the amount of damages was against the weight of the evidence, in the absence of a finding by the trial court of jury misconduct, bias or prejudice. In support, she cites the holdings in cases such as Elfrink v. Burlington N. R. Co. , 845 S.W.2d 607 (Mo.App. 1992):
A claim that the verdict amount is not supported by the evidence does not entitle a defendant to a new trial because the jury is not guilty of misconduct, but instead made a simple mistake in weighing the evidence . . . . In such cases remittitur is the relief granted to prevent injustice.
Id. at 614.
Ms. Singleton fails to note, however, that the cases she cites concern only the standard of review applied by this Court when reviewing a trial court's refusal to grant a new trial on the basis of an excessive or inadequate award. As explained in Koehler v. Burlington N. Inc. , 573 S.W.2d 938, 945 (Mo.App. 1978), in these circumstances, in the absence of jury misconduct, bias or prejudice an appellate court will not second guess a trial court's refusal to grant a new trial on the basis of the weight of the evidence. In such a case, the appellate court's only options are to affirm, or to order (where the verdict is too high) remittitur, for "[a] new trial is not required, because the jury is guilty of no misconduct. It simply has made an honest mistake in weighing the evidence." Id.
In other words, Ms. Singleton's cases simply limit the power of the appellate court in situations in which the trial judge hasrefused to grant a new trial. Those cases have no application to a situation such as that before this Court, in which the issue isthe power of the trial court to grant a new trial on damages in the first instance solely on the basis of the weight of the evidence in the absence of any evidence of jury misconduct, bias or prejudice.
The rule to apply in the instant situation is well set out in Underwood v. Brockmeyer , 318 S.W.2d 192 (Mo. 1958). As in this case, the trial court in Underwood granted plaintiff's motion for a new trial on the issue of damages only on the basis that the verdict of the jury was "inadequate and against the weight of the evidence." Id. at 193. There, as here, defendant contended on appeal that there was insufficient evidence to support a larger verdict and that a new trial on the issue of damages had to be based upon juror misconduct. Id.
Underwood rejected this argument, stating:
we do not agree with the premise that a new trial as to all issues on the ground that the damages are excessive may be granted only where bias and prejudice appear.
Id. at 195. Rather, Underwood explained:
it may be pertinent to say that when the trial court grants a new trial on the ground of excessiveness or on the ground of inadequacy, it is equivalent to granting a new trial on the ground that the verdict is against the weight of the evidence.
Id. (citations omitted). Of course, as noted earlier, it is well-settled that a trial court has almost unlimited discretion to grant a new trial on the basis that the verdict is against the weight of the evidence. Rule 78.02; Pitman , 714 S.W.2d at 231.
C. The Trial Court was not Required to Grant Ms. Singleton the Option of Additur Prior to Granting a New Trial on Damages.
Ms. Singleton also contends that, even if the trial court had the authority to grant Plaintiffs a new trial as to damages only, it was required to also give Ms. Singleton the option of agreeing to additur in lieu of a new trial. Again, we disagree.
The modern right to additur is not based on the common law, but on Section 537.068, RSMo Supp. 1993. First enacted in 1987, that section states:
A court may enter a remittitur order if, after reviewing the evidence in support of the jury's verdict, the court finds that the jury's verdict is excessive because the amount of the verdict exceeds fair and reasonable compensation for plaintiff's injuries and damages. A court may increase the size of a jury's award if the court finds that the jury's verdict is inadequate because the amount of the verdict is less than fair and reasonable compensation for plaintiff's injuries and damages.
§ 537.068 (emphasis added). Nothing in the statute appears to require that additur be offered as an alternative to any grant of a new trial. On the contrary, the statute simply says that the court may — not must — increase the size of the jury's award if the verdict is inadequate.
We think Ms. Singleton's argument must arise from a failure to distinguish between a trial court's decision to grant additur and a trial court's decision to deny additur. Recent cases have recognized that, if the trial court grants a motion for additur, then the trial court must give the opposing party the option of either accepting the additur or rejecting it and having a new trial. Tucci v. Moore , 875 S.W.2d 115, 116 (Mo. banc 1994).
Ms. Singleton would turn the rule on its head, and have us rule that if the trial court grants a new trial, then it must give the opposing party the option of accepting additur. She cites no authority for this proposition, and we have found none. That is not surprising, for such a rule would be in conflict with the rule discussed above that the trial court has virtually unfettered discretion to grant one new trial on the basis that the verdict was against the weight of the evidence. Pitman , 714 S.W.2d at 231. In fact, in Pitman itself, the trial court awarded a new trial on damages only, without mentioning the option of additur, and this Court affirmed. Id. Bishop v. Cummines , 870 S.W.2d 922 (Mo.App. 1994), more explicitly recognized the power of the court to order a new trial even if additur is denied. It held that, where both additur and a new trial are requested:
The court could have sustained the plaintiffs motion for new trial because the damages were inadequate. Instead the court chose to avoid the delay and expense of a new trial and increased the jury award to a figure equal to the proven losses. By doing this, the court satisfied the plaintiffs claimed error of an inadequate damage award. In the process, the defendant should have been given the option of accepting the additur, thereby eliminating plaintiffs claimed error of the inadequacy of the verdict. The alternative would have been for the trial court to grant plaintiffs motion for new trial.
Id. at 925 n. 2. (emphasis added).
The Missouri Supreme Court just reaffirmed this approach in Massman Constr. Co. v. Mo. Hwy. Transp. Comm'n , No. 78085 (Mo. banc January 23, 1996). In that case, plaintiff filed only a motion for additur and did not request a new trial in the event additur was denied. The trial court denied additur, but granted a new trial despite the absence of a request for a new trial.
The Supreme Court reversed. It stated that the trial court could not deny additur but grant a new trial where a separate request for a new trial had not been made. It therefore remanded to the trial court with directions that the court's only options were to: (1) deny additur and enter judgment on the verdict; or (2) grant additur, which the defendant could accept or reject in favor of a new trial. The trial court could not simply order a new trial by itself, for this was not requested. Id. at 6-7.
In so holding, Massman implicitly recognized that where a new trial is separately requested, then the trial court has the discretion to grant it where, as here, it believes the verdict was against the weight of the evidence. This makes sense, for the mere fact that Plaintiffs below happened to also ask the trial court to consider additur should not in any way take from the trial judge his or her discretion to grant a separate request for a new trial on the basis that the verdict was against the weight of the evidence. For these reasons, this point is denied.
III. THE TRIAL COURT DID NOT ERR IN GRANTING A NEW TRIAL AS TO MRS. MARTIN'S LOSS OF CONSORTIUM DAMAGES
Under Point II, Ms. Singleton contends the trial court erred in granting a new trial as to damages on Mrs. Martin's loss of consortium claim because Mrs. Martin did not make a submissible case. Ms. Singleton also contends that Mrs. Martin's motion only asked for a new trial as to damages. Ms. Singleton argues that the jury found that Mrs. Martin did not sustain any injury, and thus that if a new trial is granted it must be on liability also. Otherwise, she says, "[s]ince the court ordered a new trial on damages only, the result would be to have a new determination of the damage amount when the jury in effect found that she was not damaged, which means that defendant had no liability to Mrs. Martin."
Ms. Singleton also contends that a new trial was not a proper remedy in that the trial judge found no jury misconduct and Ms. Singleton was not first offered the option to consent to additur. These last two points are the same claims that Ms. Singleton made under Point I as to Mr. Martin and are denied for the same reasons as stated above, supra, § II.
A. The Trial Court Properly Granted a New Trial as to Loss of Consortium Damages.
The Missouri Supreme Court addressed a similar issue in Barlow v. Thornhill , 537 S.W.2d 412 (Mo. banc 1976), a case for personal injuries arising out of two successive rear-end collisions. Plaintiff filed claims against the drivers of the automobiles for personal injury, and his wife filed claims against the same defendants for loss of consortium. The jury returned a verdict in favor of plaintiff for personal injuries but against his wife for loss of consortium. The trial court granted a new trial for the wife on the loss of consortium claim as to both liability and damages. Id. at 416-17.
The wife appealed, contending that a new trial should have been granted as to damages only. The Missouri Supreme Court agreed. It held that a new trial should be granted just as to damages only where "there were no errors affecting the negligence liability portion of the cases." Id. at 423. In so holding, Barlow explained that "[t]he evidence showed [husband] sustained substantial disabling injuries and the testimony concerning loss of services and consortium was uncontradicted." Id. In such a case, Barlow explained, "where a verdict is rendered in favor of one spouse in a personal injury action, a verdict against the other spouse in a jointly-tried . . . action for loss of consortium would be set aside because of its inconsistency, and a new trial granted." Id. (citations omitted). Thus, Barlow held, in effect, that liability must follow if the fact of some loss of services is uncontradicted. In such a situation, only the amount of damages is truly in question and only that issue need be retried.
Barlow is directly applicable here. The trial court below did not err in granting a new trial as to damages and not liability, because, as in Barlow , there were no alleged errors affecting the negligence liability portion of the case. Moreover, on the facts of this case, its cannot be argued that Mrs. Martin suffered no damages at all as a result of the injury to her husband. To the contrary, both Mr. and Mrs. Martin testified how this injury had affected his day to day life. The evidence showed that Mr. Martin sustained a substantial injury which necessitated several doctor's visits, medication, and a back brace. It is uncontested that he missed approximately five months of work as a result of this injury. While Mr. Martin resumed work, he has done so at a diminished capacity. Mrs. Martin testified that after Mr. Martin puts in long hours he is disabled the next day and he "can't do anything. He hurts, he stays at home, he lays on the bed, he lays on the floor, he paces back and forth." In addition to similar testimony, Mr. Martin related an incident where his back hurt so bad during a short driving trip with his wife that he "crawled in the back seat and laid down, threw up, and [his wife] drove home. And I was in a lot of pain."
This distinguishes Lear v. Norfolk W. R. Co. , 815 S.W.2d 12 (Mo.App. 1991), heavily relied on by Ms. Singleton. In that case the defendant contested whether the plaintiff's spouse had actually suffered any losses arising out of the plaintiff's injuries. Where the evidence on this issue is contested, then damages for loss of consortium can never be automatic, and a new trial must be granted on both liability and damages. As just noted, the instant case is quite different, for the fact that some burden was put on Mrs. Martin by her husband's injuries was evident.
In this type of case, this Court places "primary reliance on the jury and, next, on the trial judge, who has the authority to grant a new trial if of the opinion that the verdict is manifestly against the weight of the evidence." Lenhard v. Davis , 841 S.W.2d 295, 297 (Mo.App. 1992). Based on the evidence presented, it was not error for the trial court to find that some loss of consortium could not be contested and to grant a new trial on the issue of Mrs. Martin's damages only.
B. The Order of the Trial Court was Sufficiently Specific.
Lastly, Ms. Singleton contends that the order of the trial court granting Mrs. Martin a new trial did not comply with the specificity requirements of Rules 78.03 and 84.05(d), because it "does not delineate whether the new trial is granted on the issue of whether Mrs. Martin `did' or `did not' sustain damages, or whether the $0 amount of damages found by the jury was against the weight of the evidence, or both." Rather, the order simply states, "the court finds . . . that the verdict on Count II [loss of consortium] on the issue of damages is against the weight of the evidence."
It is true, as Ms. Singleton notes, that Rule 78.03 requires every order granting a new trial to specify the ground or grounds on which the new trial is granted. Rule 84.05(d) further provides that "[i]f the trial court grants a new trial without specifying the discretionary grounds, it shall never be presumed that a new trial was granted on any discretionary grounds."
As noted in McDowell v. Kawaski Motors Corp. , 799 S.W.2d 854 (Mo.App. 1990), however, this rule does not apply where, as here, the order specifies that a new trial is granted on the basis that the verdict is against the weight of the evidence. Rather:
If a trial court decides to employ the authority granted under Rule 78.02 it may order a new trial reciting that the verdict is against the weight of the evidence and do so with virtual certainty that the ruling is immune from appellate interference. . . .
If in this case, the trial court had in fact concluded that the verdict for appellants was against the weight of the evidence, it need only have entered its order so stating and the cause of controversy in this appeal would have been eliminated.
Id. at 859 (emphasis added).
The trial court's order below thus was not required to be more specific. This point is denied.
IV. THE TRIAL COURT DID NOT ERR IN REFUSING TO REDUCE DAMAGES FOR PROPERTY OWNED AS TENANTS BY THE ENTIRETY BY THE PERCENT OF HUSBAND'S FAULT
As her final point on appeal, Ms. Singleton contends that the trial court erred by not reducing the property damage award to Mr. and Mrs. Martin for the loss of their truck by the amount of Mr. Martin's comparative fault. Ms. Singleton contends that Mr. Martin's negligence should be imputed to Mrs. Martin to reduce the amount that she can recover as an owner of the pickup based on the fact that the pickup is owned by Mr. and Mrs. Martin as tenants by the entirety.
A. Mere Co-Ownership of Property is not a Basis Upon Which Negligence can be Imputed.
The Missouri Supreme Court held in Stover v. Patrick , 459 S.W.2d 393 (Mo.banc. 1970), that negligence should not be imputed merely on the basis of co-ownership of property. In Stover , the husband and wife brought suit for personal injuries against the defendant as the result of an automobile accident. Husband, the driver, and wife, the passenger, owned the car as joint tenants. Defendant argued that the husband's negligence should be imputed to the wife to preclude her recovery.
At that time, Missouri followed the law of contributory negligence by which any negligence on the part of the party claiming injury completely barred his/her recovery. This law was changed in Gustafson v. Benda , 661 S.W.2d 11 (Mo. banc 1983), in which the court adopted comparative fault in Missouri. This change, however, does not effect this analysis.
Stover first noted that the only basis upon which the husband's negligence could be imputed to his wife was the fact of their joint ownership of the car. Id. at 398. In overruling a line of cases which had previously imputed liability on this basis, the Supreme Court held:
[C]o-ownership of an automobile does not give a realistic right of control over its movement to a passenger-owner and that absent evidence of other facts which establish a basis for imposing liability on the passenger-wife for acts of her driver-husband, the negligence of the latter should not be imputed to the former, merely because of joint ownership of the vehicle.
Id. at 401 (emphasis added).
Following Stover , other Missouri courts have similarly refused to impute liability based merely on the fact of co-ownership of property. For example, while Stover was an action for personal injuries, its reasoning was applied in Poetz v. Klamberg , 781 S.W.2d 253 (Mo.App. 1989), a property damage case. In Poetz , the father and daughter owned a vehicle as tenants in common. The daughter was in a car accident while driving the vehicle for which she was found partly at fault. The father sued the driver of the other car to recover property damage to the vehicle.
Defendant argued that the liability of the daughter should be imputed to the father in his action to recover damages for the car based merely on the fact of co-ownership of the car. Poetz rejected this argument, explaining that "[t]he negligence of an operator of an automobile cannot be imputed to another owner in absence of presence or control of the non-negligent owner." Id. at 256. Poetz held that recovery would thus be governed by the usual rule that "[w]hen two tort-feasors acting independently combine to cause a single injury to another that person may recover for the entirety of the injury from any one or all of the tort feasors." Id. at 256-57. Thus, plaintiff could choose to recover for all of his property loss from the defendant rather than from his daughter even though she was also a tort-feasor. Poetz did, however, limit plaintiff's recovery to 50% of the value of the car on the basis that, as a tenant in common with his daughter, his interest in the car was presumptively 50% in the absence of evidence of a different division of ownership percentages between them. Id. at 257.
B. The Fact that the Property is Owned as Tenants by the Entirety Does not Create a Basis for Imputing Negligence of a Co-Owner.
While Poetz would appear to govern this case and prohibit imputation of Mr. Martin's negligence to Mrs. Martin, Ms. Singleton contends otherwise. She contends that because Mr. and Mrs. Martin own the pickup truck as tenants by the entirety rather than as tenants in common, Mr. Martin's negligence can be imputed to her.
We disagree. First, as just noted, the Supreme Court in Stover clearly held that liability cannot be imputed based merely on co-ownership of property. This holding was not limited to claims for personal injuries and its reasoning has subsequently been applied to claims for property damages. See, e.g., Poetz , 781 S.W.2d at 256-57. Thus, if the Martins were unmarried but owned the pickup truck as tenants in common, Mr. Martin's negligence could not be imputed to Mrs. Martin.
Ms. Singleton notes that Holt v. Myers , 494 S.W.2d 430, 444 (Mo.App. 1973), distinguishes Stover as dealing only with imputation of negligence when personal injury is claimed. Holt then holds that the negligence of the spouse can be imputed as to property damage. Holt recognizes the rule that negligence may not be imputed based solely on the husband-wife relationship, but says that it is not doing that; it is simply imputing negligence based on ownership by the entirety. We think this distinction to be one of semantics at best, however, since only husband and wife can own property by the entirety. In any event, Holt was decided by the St. Louis District of the Court of Appeals, and so is not binding on this Court. We chose to follow the rationale of Stover, Poetz , and similar cases.
The only basis Ms. Singleton gives not to apply this rule to the Martins' claims in this case is that the Martins are in fact married and so own the pickup truck by the entirety. However, the estate of tenancy by the entirety can only exist between a husband and wife and is based on the husband-wife relationship. State ex rel. State Highway Comm'n v. Morganstein , 649 S.W.2d 485, 488 (Mo.App. 1983). To hold that the mere existence of this relationship provides a basis to impute negligence would thus be contrary to well-established law that the negligence of one spouse cannot be imputed to the other merely based on the spousal relationship. Dickey v. Nations , 479 S.W.2d 208, 210 n. 2 (Mo.App. 1972).
We are aware of nothing about the essential characteristics of a tenancy by the entirety that calls for a different result. The mere fact that two persons are married does not give one any more legal control over the other than if they were not married. Thus, the reasoning of Stover and of Poetz is equally applicable to married persons who hold property by a tenancy by the entirety. The negligence of Mr. Martin cannot be imputed to Mrs. Martin.
C. Mrs. Martin is Entitled to Recover 100% of the Property Damages Awarded.
Defendant has not raised the separate issue addressed in Poetz as to whether, in the absence of imputation of fault, Mrs. Martin can be considered to have an interest in the whole of the truck and recover for all of its loss of value, or whether she should recover only for 50% of its value, as occurred in Poetz , since she was only a co-owner of the truck. We think that this issue is affected by the fact that the Martins are tenants by the entirety, however, and we therefore briefly address it to avoid any confusion which might otherwise arise on the issue.
As just noted, in Poetz, supra , the father was a tenant in common with his daughter, and presumptively owned only a 50% share in their car. By contrast, where tenancy is by the entirety each spouse owns an indivisible interest in the whole, that is, the entirety, of the estate. Morganstein , 649 S.W.2d at 488. For this reason, courts have held that property owned by husband and wife as tenants by the entirety cannot be subject to a lien, levied upon, or sold to satisfy the debt of one of the spouses. See, e.g., Wry v. Wade , 814 S.W.2d 655, 659 (Mo.App. 1991) (cannot create a lien); Edgar v. Ruma , 823 S.W.2d 59, 61 (Mo.App. 1991) (cannot execute on property held as tenants by the entirety). Each spouse has an interest in the whole which cannot be diminished by the action against one spouse.
This means that Mrs. Martin's interest in the pickup truck reached the entirety of the truck. That in turn means that the entire amount of damage to the truck constituted damage to her interest in the truck, for she had an indivisible interest in the whole of the truck. We conclude that she was thus entitled to recover 100% of the damages awarded for the loss of the truck.
In so concluding, we are guided by the principles set out in the Missouri Supreme Court's recent decision in Teeter v. Missouri Highway Transp. Comm'n , 891 S.W.2d 817 (Mo. banc 1995), in holding that comparative fault could not be imputed from the tort-feasor to his co-beneficiaries in a wrongful death action.
Teeter was an action by a husband and wife seeking recovery for the wrongful death of their daughter. The daughter was killed in a car wreck which occurred while the mother-wife was driving the car in which the daughter was a passenger. The jury assessed 90% of the fault for the death of the daughter to the wife. The issue before the court was whether comparative fault applied to reduce the award in the wrongful death case in proportion to the fault of one of the beneficiaries. Id. at 819.
Teeter held that the wrongful death benefit would not be reduced due to the fault of one of the beneficiaries. Teeter explained that:
wrongful death actions are indivisible — only one action may be brought against any one defendant for the death of any one person. Any recovery in a wrongful death action is for the benefit of those who sue or are entitled to sue and of whom the court has notice. The individual interest of the beneficiaries becomes separable only after the indivisible cause of action becomes merged in a judgment.
Id. at 819-20 (citations omitted). Teeter thus held that reducing the indivisible award based on the negligence of one of the beneficiaries would be inconsistent with the nature of the wrongful death cause of action because "it is impossible to reduce a defendant's liability to one of several claimants prior to judgment because no claimant has an individual interest." Id. at 820. Rather than comparative fault, the remedy of the defendant was to make a separate claim for contribution against plaintiff. Id. at 820-21.
This reasoning applies in this case as well. Here, as in Teeter , Mrs. Martin as a tenant by the entirety has an indivisible interest in the entire pickup. Morganstein , 649 S.W.2d at 488. As such, as in Teeter , it is impossible to reduce the defendant's liability as to one of the claimants based on that claimant's fault because that claimant does not have an individual interest in only part of the property.
For this reason, the fact that Mr. and Mrs. Martin owned the pickup truck as tenants by the entirety is not a ground upon which comparative fault should be imposed, but rather, as in Teeter , is the reason that the property cannot be subject to comparative fault.
This does not provide a windfall to the Martins. In this regard, Teeter again provides guidance. The Court there held that the defendant could recover the portion of the damages attributable to the tort-feasor/beneficiary by filing a cross-claim or third party claim against that tort-feasor. Similarly, here, if Ms. Singleton wished Mr. Martin's fault to be taken into account in regard to the property damages, she could have brought a contribution claim against Mr. Martin individually for 50% of Mrs. Martin's property damages claim.
For these reasons, this Court holds that the trial court did not err in refusing to reduce the amount of damages recovered for the pickup truck on the basis of Mr. Martin's negligence.
The judgment is affirmed and the case is remanded for a new trial on the issue of damages for loss of consortium and personal injury only.
ALL CONCUR.