Arnel v. Roettgen
| Decision Date | 03 November 1975 |
| Docket Number | No. KCD,KCD |
| Citation | 530 S.W.2d 20 |
| Parties | Darrell Keith ARNEL, By and Through His Next Friend, Delbert Henry Luadzers, Respondent, v. Kenneth Joseph ROETTGEN, Appellant. 27168. |
| Court | Missouri Court of Appeals |
Tweedie Fisher, Jefferson City, for appellant.
Thomas D. Graham, Jefferson City, for respondent.
Before WASSERSTROM, P.J., and SHANGLER and DIXON, JJ.
This is a suit for personal injuries in which the jury returned a verdict for defendant. The trial court sustained plaintiff's motion for a new trial, stating as grounds therefor error in the submission of Instruction No. 2. Defendant appeals, seeking a reinstatement of the jury verdict.
At the close of the evidence, plaintiff submitted and the court gave Instruction No. 3 which was a verdict director and Instruction No. 2 on the burden of proof. Defendant submitted and the court gave Instruction No. 5 which directed a verdict for the defendant if the jury found plaintiff guilty of contributory negligence. Instruction No. 2, being the one now in question, was as follows:
After the jury returned its verdict for the defendant, plaintiff filed his motion for new trial in which assignment No. 1 was as follows:
'Because the Court erred in giving Instruction No. 2, being M.A.I. 3.01, in that it failed to include the applicable words 'The burden is upon the defendant to cause you to believe the propositions necessary to support his defense that plaintiff was contributorily negligent,' placing the burden of proof upon the defendant where an affirmative defense was asserted and the defendant relied upon the affirmative defense of contributory negligence.
'The above constitutes clear and reversible error in that it placed the entire burden of proof upon the plaintiff, when the burden of proof as to contributory negligence should have been upon the defendant.'
After consideration of the motion, the court set aside the verdict and granted a new trial, giving as its reason that '(t)his Court has concluded that it erred in giving to the Jury Instruction No. 2, in the respects set out in Paragraph 1 of Plaintiff's Motion for a New Trial.'
Defendant's argument for a reversal can be encapsulated by the following paragraph from its brief:
That argument misstates the law. Rule 70.01(d) states that 'all (instructions) shall be given as instructions of the court.' Furthermore, the committee instructions accompanying the Missouri Approved Jury Instructions states:
'Neither the proposed instruction system nor any other system will succeed without the active supervision of the most important man in our judicial system, the trial judge.' (MAI, LIII).
Furthermore, the court is required to give 3.01; its use is mandatory: 'This instruction must be given in every case' (Notes on Use, MAI 3.01). The inclusion of the statement on defendant's burden of proof is likewise mandatory when pertinent; the Notes on Use, MAI 3.01, direct, 'if defendant submits an affirmative defense, such as contributory negligence, insert the words: 'The burden is upon the defendant . . ..''
So, contrary to appellant's claims, the court is required to give MAI 3.01, it is an instruction of the court, and the omission was error by the court, not by the plaintiff. Nor do the Luikart and Wors cases, cited by defendant, militate to the contrary. Luikart precedes MAI and therefore is not pertinent. Wors dealt only with the question of the giving or modification of a withdrawal instruction, which stands on a completely different footing from MAI 3.01.
In face of the foregoing, defendant nevertheless insists that plaintiff is barred from any complaint as to Instruction No. 2, inasmuch as that instruction was prepared by him and submitted at his own insistence. He contends that this conclusion is required by Blankenship v. Kansas City Terminal Railway Co., 462 S.W.2d 650 (Mo.1971), which according to defendant presented 'the identical situation.' Blankenship is plainly distinguishable. That was a suit under the Federal Employers Liability Act, to which the defendant pleaded contributory negligence in mitigation of damages. The court gave a burden of proof instruction submitted by plaintiff which followed MAI 3.01, except that the instruction, just as the one here, failed to included a 'tail' dealing with the burden of proof upon the...
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Barber v. LaFromboise
...question of contributory negligence is submitted to the jury" and that "its omission constitutes prejudicial error"); Arnel v. Roettgen, 530 S.W.2d 20, 23 (Mo.Ct.App.1975) (concluding that erroneous failure to instruct on defendant's burden of proof on contributory negligence claim was "obv......
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...jury that the burden was on the defendant with respect to the matters submitted in Instruction No. 3. Plaintiff relies on Arnel v. Roettgen, 530 S.W.2d 20 (Mo.App.1975) where the court held, in a personal injury action, that the burden of proof instruction was erroneous in omitting to tell ......
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