The opinion
KENNEDY, Judge,
dissenting.
I dissent.
Here is a case where a real estate broker, claiming it was he who was entitled to a sales commission for selling a farm, brings suit against the seller for the commission of $47,150.
In a separate count, the plaintiff real estate broker brings suit against a second real estate broker, who claimed to be entitled to the commission and to whom the seller had actually paid the commission, for damages for tortious interference with a contractual relationship.
After a trial the jury returned a verdict for the seller and against the plaintiff real estate broker, but returned a verdict for the plaintiff real estate broker against the defendant real estate broker for $15,000 damages.
The second real estate broker appeals from the judgment based upon the verdict for the plaintiff real estate broker and against them. That is the only verdict we have before us, for plaintiff real estate broker did not appeal from the judgment based upon the verdict in favor of the seller.
Now the principal opinion holds that the verdict we have before us must be set aside because it is inconsistent with the verdict we do not have before us. The opinion does not undertake to determine — as it could not, of course, so long as there was evidence which would support both verdicts — which verdict was right and which was wrong. How this court can divine that the jury was wrong on the verdict we have before us and right on the other verdict the opinion does not undertake to explain.
Presumably, if inconsistency is the key, we would reverse both of them if we had them both before us. But they would still be inconsistent.
The foregoing shows what kind of difficulty we get into with the rule that inconsistent verdicts are mutually destructive. A far better rule is the rule which is firmly established in this state in criminal cases, which is that inconsistency of verdicts on different counts is no ground for reversal. The only question is whether there is sufficient evidence to support the submission and the verdict. Under a general verdict system, there is no way to go behind the verdict to inquire into the reasons which move the jury to return one verdict on one count and an inconsistent verdict on another count. In State v. McCall, 602 S.W.2d 702 , (Mo.App.1980), Judge Pudlowski wrote:
However, when the verdicts on two counts are inconsistent, a reversal is not *959 required. State v. Jones, 545 S.W.2d 659, 667 (Mo.App.1976), citing State v. Amerson, 518 S.W.2d 29, 33 (Mo.1975). It has been stated:
Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was [sic] a separate indictment....
That the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.
Dunn v. United States, 284 U.S. 390, 393-94 , 52 S.Ct. 189, 190-191 , 76 L.Ed. 356 (1932). See also State v. Larkins, 518 S.W.2d 131, 137 (Mo.App.1974).
However much the jury’s conclusion may tax the legally trained’s penchant for consistency, the law is clear that inconsistent verdicts among the varied charges of a multi-count indictment are not self-vitiating. United States v. Fox, 433 F.2d 1235, 1238 (D.C.Cir.1970). Further, juries frequently convict on some counts and acquit on others, not because they are unconvinced of guilt but simply because of compassion or compromise. Id. at 1238 n. 22.
602 S.W.2d at 708 .
I have written as if the effect of inconsistent verdicts in civil cases were an open question in Missouri, but I believe the case of Page v. Hamilton, 329 S.W.2d 758 (Mo.1959) adopts a rule in civil cases like the one that prevails in criminal cases. There the jury had returned a verdict for a plaintiff injured in an automobile accident, against both of two defendants. They also returned a verdict for a cross-claiming defendant against the second defendant. The verdicts were inconsistent in that the verdict for plaintiff against the cross-claiming defendant required a finding of negligence of that defendant, which finding would foreclose his recovery against his co-defendant. The trial court had set aside both verdicts on the ground of their inconsistency and had ordered a new trial. The Supreme Court reinstated the verdicts. After a lengthy discussion on the subject, Judge Storckman concluded:
If the same general verdicts had been returned in separate trials of plaintiff’s action and defendant Crowe’s cross-claim under the instructions before us, there could not be any legal inconsistency; that is, no inconsistency justifying setting either or both of the verdicts aside. We believe it is the intent and purpose of section 509.460 [now Rule 55.32(f)] to permit to be done in one trial that which could be accomplished in separate trials. This does not deprive the court, on its own or a party’s motion, ordering separate trials in proper cases. There was no such motion or objection to the submission in the present case. We believe the better rule to be that where separate causes of actions are joined under the permissive authority of section 509.460 and tried together, a general verdict will not be held to be fatally defective for inconsistency unless there is error in the pleading, proof or submission of the actions.
329 S.W.2d at 767 . See also to like effect Rinker v. Ford Motor Company, 567 S.W.2d 655, 659-660 (Mo.App.1978).
I see no reason that the principle so announced was intended to be confined to cross-claims under what is now Supreme Court Rule 55.32(f). It would apply as well to permissive joinder of claims, as the plaintiff did here in joining the seller and the other real estate broker under Rule 52.05.
It is very likely that the jury, their minds untrammeled by abstruse legal learning, reasoned as follows: “Under these instructions we should return a verdict for the plaintiff against the seller for the real estate commission. But the seller has already paid a commission of $47,150 to the other real estate broker, and he should not *960 have to pay any additional amount. So we will let him off the hook. The one who should pay the plaintiff is the other real estate broker, who collected the commission. We will give the plaintiff a verdict against him for a $15,000 share of the commission as damages.”
I have not reached the more serious (in my view) question whether the plaintiff made a submissible case against either defendant, an issue which would have to be ruled if the judgment were not reversed on the inconsistency of verdicts point.