This is mandamus.
The facts of the case, as they appear in the majority opinion of the St. Louis District of the Court of Appeals, from which we transferred this case, are set forth below without quotation marks.
This proceeding arises out of an action for personal injuries filed by David A. Cryts and Rosalie Cryts, his wife, against Robert J. Uttendorfer, his wife, and the Ford Motor Company. MFA Mutual Insurance Company intervened.
The injuries to David Cryts were alleged to have been incurred on June 3, 1967, when the automobiles belonging to Cryts and Uttendorfer collided. The amended petition for injuries to David and loss of consortium by his wife alleged negligent operation by Uttendorfer, and negligent design of the Cryts’ Ford automobile, which caused or contributed to cause the injuries to David Cryts.
Trial of the cause commenced May 8, 1972, before respondent and a jury. On May 11 the cause was submitted to the jury. Before arguments and the giving of the instructions respondent and all attorneys reviewed the instructions, including the verdict forms. Counsel agreed to the submission of eight different verdict forms, two of which would be used in returning a verdict. Following the instructions and arguments, the cause was submitted at approximately 3:00 p. m. on May 11, 1972. After a note was sent to respondent concerning some pictures and a trooper’s report, and an inquiry concerning a personal matter relating to one juror, the jury was excused until the next morning.
On May 12, after the jury had been deliberating for about one and one-half *60hours, the jury forwarded an unsigned note to respondent. The note read as follows :
“We the jury find no evidence that defendant Ford is in any way liable. Further we have reached a point whereby we cannot find, in face of the evidence, for or against the defendant Ut-tendorfer or for or against the plaintiff Cryts. How do we proceed ?”
Respondent read this communication to the attorneys. Ford’s attorney suggested to respondent that he direct the jury to write out their verdict in the form they desire it to be as to Ford, and also suggested that the jury advise the court regarding its ability to reach a verdict regarding Utten-dorfer. “ . . . I think the fact that they are hung as to one defendant does not bar them from finding a verdict that absolves the other defendant.” Counsel for Cryts objected and argued that there must be a verdict “in the entire case.”
Later respondent advised counsel that he would give a “hammer instruction.” Counsel for Cryts objected but his objection was overruled. Counsel for relator Ford reserved the right to request respondent to accept a verdict in favor of Ford in the event the jury was unable to agree on a verdict regarding Uttendorfer. The jury was then returned to the court room. Respondent addressed the foreman and the following occurred:
“THE COURT: ... Mr. Foreman, . . . tell me how you stand numerically as to a verdict on the forms that were .submitted to you at the close of this case, .
THE FOREMAN: Seven and five, your Honor.
THE COURT: Now, let me ask you this further question: If given further time to deliberate this case do you feel that there would be a reasonable grounds [sic] for belief that this jury could come to a verdict in this case?
THE FOREMAN: In my judgment, your Honor, we could not.
THE COURT: Do you feel that under no set of circumstances that the Court might later do or now do that you could not reach a verdict ?
THE FOREMAN: In my judgment we could not, your Honor.”
Respondent then gave the “hammer instruction.”
The jury returned at about noon. Then respondent indicated to counsel that if the jury had not arrived at a verdict by 1:00 p. m., and did not feel they could arrive at a verdict if given more time, he would declare a mistrial. Relator’s counsel renewed his request to respondent to advise the jury to write out its verdict on the issue of Ford’s responsibility, and enter an interlocutory judgment as to Ford to be held in abeyance until verdict and judgment were rendered as to Uttendorfer. While the attorneys and respondent were in conference the jury buzzed again and sent another note which read “We the jury still cannot find for or against either the defendant or the plaintiff.” Respondent advised counsel for relator that he would not advise the jury in accordance with relator’s request and stated “I think this has to be a full jury verdict and not a piece-meal jury verdict.” Relator requested a poll. The jury was returned and respondent addressed the jurors:
“THE COURT: Ladies and gentlemen of the jury, I understand that you have not arrived at a verdict, is that correct?
JUROR NO. 9 . . . That’s right.”
Thereupon respondent declared a mistrial, and at relator’s request, the jury was polled over the objection of counsel for Cryts. Respondent stated:
“ . . . . Now, I am going to have the clerk poll each individual juror to see if the statement, ‘We the jury find *61no evidence that defendant Ford is in any way liable’ is, in fact, each individual juror’s conclusion with reference to the evidence and the instructions of the Court in this case . . . ”
The clerk asked each juror “Is the statement, ‘We the jury find no evidence that defendant Ford is in any way liable’ your statement?” Each juror replied that it was.
On May 23, 1972, relator moved to enter judgment in favor of Ford Motor Company based upon the “verdict” of the jury in view of the note and the poll. Relator also requested that the judgment be interlocutory and held in abeyance until the issues regarding Uttendorfer could be determined. After argument the motion was overruled. Relator sought mandamus in the St. Louis District of the Court of Appeals and an alternative writ issued.
In the companion case decided this date, State ex rel. Vogel v. Campbell, Mo., SOS S.W.2d 54, we considered the element of finality requisite for a verdict. Suffice it to say that a verdict implies that it is the final decision of the jury.
Under the facts in this case we cannot say that the jury intended its decision to be final. Counsel for the parties have not directed us to any decision, and our own research has failed to reveal any authority which holds that an unsigned note to the judge constitutes the final decision of the jury. Furthermore, during the whole process before a mistrial was declared, upon interrogation by respondent after the note was forwarded, the expressions of the jury indicate they had not come to a final decision in this case. Even after the giving of the hammer instruction, after which the jury continued its deliberations, the jury was asked by respondent “I understand that you have not arrived at a verdict, is that correct?”, and Juror No. 9 answered “That’s right.” While it may be that these remarks were intended to apply to Utten-dorfer, the facts remain that the trial court did not receive or accept anything as the verdict. Under these facts, the expression of intent by the jury did not rise to the status of a verdict, and, for this reason above, the alternative writ must be quashed.
We transferred this case, and the Vogel case, in order to attempt to resolve the problem posed when a civil suit is brought against multiple defendants, the case goes to the jury, and the members of the jury, after deliberation, then indicate to the trial court that they have decided for (or against) one defendant but are unable to agree as to the other defendant or defendants.
In Schweickhardt v. City of St. Louis, 2 Mo.App. 571, 584 (1876), plaintiff sued to recover damages for injuries sustained as a result of falling into an excavation. The case was submitted to the jury against defendants, the City of St. Louis, Brown, Allen, Schneider, and Stone. The jury returned a verdict against the City of St. Louis, Brown, Allen and Schneider. Nothing was said in the verdict of Stone. The Court reversed and remanded for new trial and said:
“ . . . It is far from being immaterial whether, when several are sued as jointly liable for a tort, there is a verdict in favor of one or more, while as to the rest the verdict and judgment are for the plaintiff. Moreover, as the several defendants, if jointly liable, are subject to contribution, those against whom the verdict is given are interested in having as many assistants in bearing the burden as possible. The jury here left it undetermined whether Stone was liable to any share of this burden. The court thereupon undertook to declare that he was not liable; and, without pausing to inquire whether such a judgment, if not reversed, would be a bar to an action for contribution, the other defendants are plainly damnified by being subjected to an execution, in advance of any determination of their relations to Stone, as to the amount they are thus compelled to pay.”
*62The majority opinion (written by Simeone, J.) of the Court of Appeals, while recognizing apparent deviations from the Schweickhardt holding (e. g., Lavignon v. Dietzel, 34 S.W.2d 92 (Mo.1931); State ex rel. Cunningham v. Haid, 328 Mo. 208, 40 S.W.2d 1048 (1931) ; Newdiger v. Kansas City, 342 Mo. 252, 114 S.W.2d 1047 (1937)), concluded that none of those cases expressly repudiated the Schweickhardt decision, and held that a verdict which does not dispose of all parties may not be received. The opinion said:
“Relator urges that in this time of congested dockets, litigation delay and the tendency of modern courts to look at substance rather than being bound by form, a determination that the jury cannot render a verdict for one defendant without disposing of the other makes a mockery uf the law. Relator urges that we should use this petition as ‘a vehicle to tell the courts and the bar that substance holds sway over form.’
“But we are dealing with more than form. We are dealing with the substantive law of joint liability, with the preciseness and orderliness of the law relating to verdicts, judgments and appeals. We are dealing with the practical problems of expediting a complete disposition of a cause so that all issues and all parties may have their day in court and have the litigation terminated once for all. In the long run judicial haste may well result in judicial waste.”
Judge McMillian filed a dissenting opinion, and stated his position as follows:
“ . . . I believe that reason and policy dictate that a jury may render a definite and clear verdict in favor of one defendant without disposing of the other defendant, and that it is wholly unfair to require the defendant who is found not liable by the jury to retry his cause only because the jury was unable to agree as to the other defendant. What possible substantive reason can there be for a formal rule which requires the jury to dispose of all parties defendant before the court can accept a verdict in favor of one? Following the general principle that all the parties and all the issues must be disposed of does not satisfy me. General rules do not solve specific cases.”
Judge Smith filed a concurring opinion, and stated his position as follows:
“I concur, but wish to express my dissatisfaction' with the present state of the law in precluding a court from accepting a verdict as to one party where the jury is unable to agree as to another party. I think it unfortunate that a litigant who has succeeded in convincing a jury of the validity of his position must convince another jury of the same thing simply because the other litigants can’t convince the jury either way.
“The practical problems of the administration of justice may require such result. The problems are complicated by the many different ways in which they arise, the extent of third party and cross party pleadings, the needs for final judgments before appeal, the rights of contribution between joint tort-feasors, the restrictions that damages against joint tort-feasors be the same, and other considerations. But it appears to me a fruitful area for further study with a view toward possible revision of the rules to allow partial verdicts.”
The position espoused by Judge McMillian is taken in criminal trials in Missouri and in the Federal courts. Rule 27.-01(b), V.A.M.R.; Fed.R.Crim.P. 31(b); United States v. Cotter, 60 F.2d 689 (2d Cir. 1932); and Com. v. Wood, 12 Mass. 313 (1815). Rule 27.01(b) reads as follows :
“(b) If there are two or more defendants the jury at any time during their deliberations may return a verdict or verdicts with respect to a defendant or defendants as to whom all of their number has agreed; if all of their number cannot agree with respect to all or any *63of the defendants, those as to whom no agreement is reached may be tried by another jury. In every case where the jury fails to reach a unanimous verdict as to the guilt or innocence of a defendant, the court shall declare a mistrial as to such defendant, who may be tried by another jury.”
We are of the opinion that the proposal to allow “partial verdicts” deserves the attention of the Bench and Bar. However, we share Judge Smith’s reluctance to adopt any position by decision without having the benefit of an in-depth study and consideration of its possible side-effects. We believe a change, if there is to be one, should be by rule of this Court. We urge the appropriate committees of the Bar to study the matter and make recommendations to this Court. These recommendations will then be referred to our Committee on Rules and will then be considered by this Court.
The alternative writ heretofore issued by the St. Louis District of the Court of Appeals is ordered quashed.
SEILER, MORGAN, HOLMAN, BARDGETT and HENLEY, JJ., concur. FINCH, J., concurs in result in separate concurring opinion filed.