(concurring in result).
I agree with the conclusion of the principal opinion that the expression of an intention by the jury with reference to defendant Ford Motor Company did not rise to the status of a verdict and that as a consequence the alternative writ of mandamus heretofore issued by the St. Louis District of the Missouri Court of Appeals should be quashed. However, it is my view that we cannot decide this case without resolving the issue of whether it is possible in a case such as this for the jury to return a verdict for or against one defendant and at the same time fail to agree on a verdict as to another defendant.
Necessarily, the first issue presented by this case is whether such a result is possible. If not, that ends the matter and there is no occasion to consider the sufficiency of the verdict. If, on the other hand, it is permissible to have a verdict for or against one defendant but a “hung jury” as to other defendants, it then becomes proper to consider and pass upon whether what occurred in this instance was sufficient to constitute a verdict in favor of Ford.
Put another way, appellate courts of Missouri consider and decide questions presented which are within the realm of the possible — actual rather than theoretical questions. For example, suit is brought and after service a defendant attacks the validity of that service and also pleads that the petition fails to state a cause of action. The threshold question is whether the defendant is even in court. Only after deciding that question in the affirmative would the court reach and decide whether a cause of action was stated. The court does not first take up and pass upon the question of whether the petition would be sufficient to state a cause of action if there were a defendant properly served and then, if that matter is decided in the affirmative, proceed to the question of whether the defendant is in court in the .first place.
Another example would be a suit against the State of Missouri for injuries from a tort allegedly committed by a state employee. A court would not resolve the question of whether a cause of action was stated (or proved if evidence was heard) and then take up the question of whether the doctrine of governmental immunity relieves the defendant of liability. Rather, the court would resolve the latter question first and only reach the issue of whether a cause of action is stated or proved if the state can be liable for tort in the first place.
In this case, the threshold question presented is whether there is such a thing in civil cases as a valid verdict for or against one joint tort-feasor defendant *64when that jury is unable to agree upon a verdict either for or against the other defendant or defendants. As the principal opinion points out, we transferred this case and the case of State ex rel. Vogel v. Campbell, 505 S.W.2d 54 (Mo. banc 1974), for the purpose of resolving this very issue. I believe we should and must do so in order to decide this case. Only if we decide that issue in the affirmative do we have occasion to reach the question of whether the expression by the jury was sufficient to constitute a verdict in favor of Ford.
In my. judgment, our answer should be in the affirmative. As the principal opinion points out, we permit such a result in criminal cases. Rule 27.01(b), V.A.M.R. It is logical to do so in civil cases. An analogy is to be found in cases in which a jury returns a verdict against two or more defendants and then on appeal the court concludes that one defendant presents no justification for a new trial but another one does. In such a situation, this court has reversed and remanded the case with directions to the trial court to hold in abeyance the verdict as to the one defendant not entitled to a new trial while the defendant who is to receive a new trial has the case retried on the issue of liability only. Hoelzel v. Chicago, R. I. & P. R. Co., 337 Mo. 61, 85 S.W.2d 126 (Mo.1935); McCombs v. Ellsberry, 337 Mo. 491, 85 S.W.2d 135 (Mo.1935); Wolfe v. Harms, 413 S.W.2d 204 (Mo. 1967).1 There is no essential difference from what occurred in the foregoing cases and what would be the situation if the jury returns a verdict as to one defendant (whether it be for him or whether it be a verdict for plaintiff and against that defendant) but is unable to agree on a verdict as to the other defendant or defendants. As in the cases cited above, the verdict as to the one defendant is held in abeyance pending retrial as to liability of the other defendants. An appeal can be taken after there has been a determination as to the other defendants.
As Judge McMillian of the Missouri Court of Appeals, St. Louis District, remarked in his dissenting opinion in that court, “[I]t is wholly unfair to require the defendant who is found not liable by the jury to retry his cause [as to that defendant] only because the jury was unable to agree as to the other defendant.” Likewise, if in this case the jury had returned a verdict for plaintiffs for $50,000.00 against Ford but had reported an inability to agree on liability as to the other defendants, it would have been unfair to require plaintiffs to retry their case as against Ford.
I do not consider that requirements for final judgment prior to appeal, for contribution by joint tort-feasors, for damages against tort-feasors to be the same, or for other such matters present unsurmountable obstacles to allowing what I propose. Holding the verdict in abeyance pending retrial as to other defendants, as was done in the Hoelzel, McCombs and Wolfe cases, takes care of these matters. If other procedural requirements are desirable or necessary, they can be provided by rule. The problems presented by not permitting verdicts as to some defendants and requiring retrial of the whole case, even though the jury has agreed on a verdict as to some defendants, far outweigh those involved in procedurally handling verdicts as to some defendants pending retrial as to others.2
*65I would hold that a verdict in favor of (or against) Ford and a “hung jury” as to other defendants was possible and permissible. Having done so, I would then conclude, as does the principal opinion, that the jury did not return a verdict with respect to Ford in this case.
It would be appropriate to request our permanent committee on rules, with the help of the bench and bar, to give attention to this matter and to propose a procedural rule with reference thereto.
. A different result obtains if the verdict is excessive. Wolfe v. Harms, supra and cases cited therein. In such instance the case is reversed and remanded with the verdict as to liability of one defendant held in abeyance pending retrial on tlie issue of damages only as to that defendant and on liability and damages as to the other defendant or defendants. •
. Another example of the problems created by a contrary holding can be illustrated as follows : Plaintiff sues A and B for personal injuries. The trial court directs a verdict in favor of A and the jury then returns a verdict in favor of plaintiff against B. B appeals therefrom and plaintiff appeals with reference to the directed verdict in favor of A. On appeal, the verdict against B is up*65held but a new trial is directed with reference to the claim against A.
Since there can be only one final judgment in the case, there are two possible options available to the appellate court. One is to direct that the verdict against B be held in abeyance pending a retrial of the claim against defendant A on liability only. After that retrial, a single judgment could be entered against both A and B if plaintiff obtains a verdict against A. The judgment would be against B only if A is successful on the retrial.
The second alternative would be to grant a new trial as to both defendants even though the court had found that no basis existed for setting aside the original verdict against B.
If the conclusion is reached that a verdict which does not dispose of all parties is not permissible, then it necessarily follows, I submit, that the second alternative listed above would be mandatory. This is not a desirable or proper solution.