dissenting.
I respectfully dissent.
The jury here found defendant 28% negligent and plaintiff 72% negligent. It then assessed plaintiffs damages at $0. The plaintiff made no challenge to the verdict at the time it was returned and before the jury was discharged. There was no dispute that plaintiff sustained a serious injury in the accident. Under the instructions the jury had to find damage to plaintiff in order to assess any negligence to defendant. It assessed negligence but found no damage. The verdict was therefore inconsistent. In Douglass v. Safire, 712 S.W.2d 373 (Mo. banc 1986) [1] the Supreme Court stated:
“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. Otherwise the claim of inconsistency will be held to have been waived.”
The plaintiff has waived the inconsistency of the verdict. The jury finding of zero damages is not challenged here. Only a challenge to that finding as inconsistent or unsupported by the evidence would justify a reversal and remand. Neither contention is advanced on appeal.
The only issues raised by plaintiff are those discussed by the majority. The comparative fault instruction contention is premised upon error which was not prejudicial to the plaintiff. The jury found no damages to the plaintiff. Regardless of how the fault is apportioned the plaintiff receives nothing because the verdict determined there were no damages. Even if no comparative fault were found in plaintiff, and 100% were assessed against defendant, plaintiffs recovery would still be zero. The majority does not identify what prejudice arises from the alleged error in this comparative fault instruction. The situation is closely analogous to those found in Duren v. Kunkel, 849 S.W.2d 145 (Mo.App.1993) [4-6]; Insurance Company of North America v. Skyway Aviation, Inc., 828 S.W.2d 888 (Mo.App.1992) [4-6]; Hyman v. Robinson, 713 S.W.2d 300 (Mo.App.1986) [1, 2], In those cases the jury found no negligence by defendant, therefore no prejudice arose because of a faulty comparative instruction. Here the jury found no damages, therefore no prejudice arose from the allegedly faulty comparative fault instruction.
I agree with the majority that the reference to defendant’s family status was not prejudicial.
I would affirm the judgment.