(concurring).
I concur in the premise of the principal opinion that the verdict of the jury is inconclusive and does not lend itself to transmutation into a judgment by judicial construction. I think it expedient, however, to allay the criticisms of the dissent which, I respectfully would show, are sinuous and elusive.
The principle opinion concludes that the verdict for actual damages is faulty as a finding on the balance due on the note because Sambol, against whom it was also returned, was not an obligor on that undertaking; and that the verdict for punitive damages is faulty because there is no jury return for actual damage for tort to which that finding can relate. These deficiencies, the opinion explains, result from a failure of the instructions.
The dissent renders judgment for the plaintiff on the amount of the note, interest and attorney fee by striking Sambol from the verdict as surplusage, renders judgment for punitive damages on the verdict of $75,-000 and renders judgment for $1.00 actual damage for conversion on the. premise that the punitive damage award implies a tort recovery in at least a nominal amount. This it does on two unacceptable assumptions. The first, “that it makes no difference whether the award of actual damages [$81,650 — the award on the note balance, interest and attorney fee] be considered to have been made for breach of contract or *875for commission of a tort”. The second, that an appellate court may weigh the evidence to arrive at the intent of the jury as a basis for entry of judgment.
As to the first, of course, it makes all the difference whether the $81,650 damages award was for the breach of the note; if so, the $75,000 punitive damages are not referable to that verdict because an award for breach of contract will not support punitive damages. Smith v. Piper, 423 S.W.2d 22 (Mo.App.1967). If not, and the award for $81,650 was returned for the conversion of the collateral, then the punitive damages verdict for $75,000 rests amply and the appeal is decided. There would then be no need to contrive a fictitious judgment on an implied verdict of $1.00 [or other nominal return] upon which to rest the punitive damages as the dissent goes on to do.
The dissent strays into error, as I have said, because, as a means to justify the return of punitive damages, it misapplies sound principles on the construction of verdicts. It assumes it to be an “established principle of Missouri law [that] the jury’s finding of punitive damages necessarily implies a finding by the jury that the plaintiffs had been the victims of the commission of a tort”. There is a rule which allows a court to construe a verdict which returns punitive damages without mention of actual damages as a judgment for both the punitive and at least nominal actual reparations, but only when the verdict is responsive to proper instructions and when the jury intention is not clouded by other uncertainty. The cases which the dissent cites, Adams v. St. Louis & S.F. Ry. Co., 149 Mo.App. 278, 130 S.W. 48 (1910) and the four others, all are submissions of a single tort theory under proper instructions, so that the express recitation of the verdicts that the jury had found the issues for plaintiff coupled with the return of punitive damages necessarily implied a finding for some actual damage. But that principle is a distance from the assumption of the dissent that “the jury’s finding of punitive damages necessarily implies” actual damage to the plaintiffs from the commission of a tort.
The basic rule, as the cases cited in the dissent show [Lindstrom v. Kansas City Southern Ry. Co., 202 Mo.App. 399, 218 S.W. 936[1] (1920); Adams, supra, l.c. 50], does not allow punitive damages in the absence of a verdict for actual damages. The exception expressed in Adams, supra, and the other cases which tempers this rule proceeds on the premise that the jury has expressly found the tort issue in favor of the plaintiff, that is to say, that plaintiff suffered some actual damage. Carnes v. Thompson, 48 S.W.2d 903, 905[5] (Mo.1932).
The dissent says that the return of verdict:
“We, the jury, find the issues in favor of plaintiffs and we find that plaintiffs are entitled to punitive damages against the following defendants: Ernest Mountjoy, Mary Mount joy, Riverside Concrete, Inc. and Frank Sambol, in the following amount: $75,000”
provides the express finding of a tort issue in favor of the plaintiff which implies a finding of at least minimum actual damage for plaintiffs to support the punitive damage award. Thus, the argument comes full circle: the verdict for punitive damages is construed to be both a determination of some tort issue in favor of the plaintiffs and thus a basis for entry of judgment of actual damages. The question arises: how can anyone tell? The cases which allow such an inference, as was shown, deal with submissions of a single recovery. The pleadings allege a miscellany of counts, including recoveries on accounting for breach of contract, conspiracy among some of the defendants for conversion of the security, conspiracy among all the defendants to defraud the plaintiffs, and conspiracy among yet other defendants to alienate and convert the security. The evidence went beyond the pleadings and the submissions for the plaintiffs were enlarged to conform to the pleadings. Thus, the instructions included one submission on the note, another *876submission on the guaranty and loan agreement, and six separate instructions on one tort theory or another against the defendants, in one combination or another.
The dissent says that the return of punitive damages was responsive to Instruction No. 22 which allowed such damages on the jury finding that one of the six tort submissions was willful, wanton or malicious. One problem is that the only verdict which expressly returned actual damages was in the form for the favorable return of issue on the note and guaranty agreement. Another problem is that the return of verdict included Sambol who was never obligated on the note or contract to the plaintiffs. Still another problem is that even if construed as a legal verdict, the return on the note and contract will not support punitive damages. Most telling of all, the award for punitive damages against defendants Ernest Mountjoy, Mary Mountjoy, Riverside Concrete, Inc. and Frank Sambol were not responsive to any instruction for in no one of the six separate tort submissions is a verdict authorized against all these defendants.
This brings the final point. The dissent reconciles these doubts by resort to the trial record to construct a judgment from the jury returns. It is basic doctrine that a verdict should be given effect if at all possible. A judgment may be written upon a verdict, however, only when the jury intention is clear and unambiguous without resort to inference. The trial record is a legitimate aid to that determination. McIlvain v. Kavorinos, 212 S.W.2d 85, 89[7-9] (Mo.App.1948). In order for a verdict to serve as a basis for judgment, therefore, the jury verdict should import a definite meaning. Ralston Purina Company v. Kennedy, 347 S.W.2d 462, 466 (Mo.App.1961). The dissent, however, does not render “the unconditional judgment of the jury” but only the interpretation it finds. Boone v. Richardson, 388 S.W.2d 68, 76[14-16] (Mo.App.1965). There is no sound verdict to construe, only an actual damages award against a surplus of defendants and a punitive damages award returned in the abstract responsive neither to tort issue or legal instruction. The judgments proposed by the dissent rest, ultimately, on a separate judicial assessment of the evidence and the state of mind1 of the jury which considered it. The surmise by a court of what a jury intended which ignores what the jury actually said intrudes upon the fundamental supremacy our system accords the jury to determine fact questions. Johnson v. Girvin’s Estate, 370 S.W.2d 163, 167[2, 3] (Mo.App.1963).
I share the concern of the dissent that a jury trial not be wasted, but in a sense each litigation transcends its own importance and must reflect a rule of law common to all, otherwise we fail the litigants and ourselves. !