Brown v. St. Louis Public Service Co.
| Decision Date | 13 November 1967 |
| Docket Number | No. 52968,52968 |
| Citation | 421 S.W.2d 255 |
| Parties | Carrie BROWN, Plaintiff-Appellant, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Defendant-Respondent. |
| Court | Missouri Supreme Court |
William R. Hirsch, Clayton, for appellant.
George A. Adolf, St. Louis, for respondent.
Plaintiff's personal injury action resulted in a verdict in her favor for $5,000. Defendant's motion for new trial contained numerous assignments of error, but the trial court granted a new trial on the single ground that
'* * * the word 'direct' before the word 'result' in the second last line From that action, plaintiff appealed to the St. Louis Court of Appeals, which reversed and remanded with directions to reinstate the verdict and judgment in favor of plaintiff. On application, we ordered the case transferred. We now decide it as though it were an original appeal to this court.
of MAI No. 4.01 is left out in Instruction No. 6.' The court order then stated: 'Said omission of said word allowed the jury to award sums to plaintiff for damages she sustained even though they were not sustained and would not be sustained in the future as a 'direct result of the occurrence mentioned in the evidence.''
Instruction No. 6 was as follows:
'If you find the issues in favor of plaintiff, Carrie Brown, then you must award the plaintiff such sum as you believe will fairly and justly compensate the plaintiff, Carrie Brown, for any damages you believe she sustained and is reasonably certain to sustain in the future as a result of the occurrence mentioned in the evidence.'
Instruction No. 6 conformed to MAI 4.01 in all respects other than the omission of the word 'direct' immediately preceding the word 'result.'
Supreme Court Rule 70.01, V.A.M.R. provides, in part, as follows:
'(b) Whenever Missouri Approved Instructions contains an instruction applicable in a particular case which the appropriate party requests or the court desires to submit, such instruction shall be given to the exclusion of any other on the same subject.
'(c) The giving of an instruction in violation of the provisions of this rule shall constitute error, its prejudicial effect to be judicially determined.'
It was mandatory under Rule 70.01[b] that MAI 4.01 be given in this case without modification. Since Instruction No. 6 did deviate from 4.01, the giving of No. 6 was error under the provisions of Rule 70.01(c), its prejudicial effect to be judicially determined. The trial court, having done that, awarded a new trial. We concur in that determination. The deletion of the word 'direct' as a modifier of 'result' changes the meaning of the instruction. Damages sustained as a result of an occurrence would include all such damages, whether resulting directly or indirectly. Only if the word 'direct' is kept in the instruction is the jury told that the damages which it may award must be the direct result of the occurrence. The word 'direct' adds a limiting factor not otherwise included.
This court, by its adoption of Missouri Approved Instructions, promulgated precise approved instructions. These had been drafted after much research and great effort on the part of the court's special committee and its able reporter, the late Professor John S. Divilbiss. A preliminary draft was distributed and suggestions were received from the bench and bar before final adoption. The system was devised to eliminate the old system of complex, detailed and frequently argumentative instructions which caused great difficulty for jurors, lawyers and judges, and resulted in a high percentage of reversals on account of instructions given or refused. The special committee carefully considered the precise words to use in each approved instruction in order to provide simple, concise and understandable instructions. Directions as to the format to be followed were given to cover those instances where no MAI instruction is provided or where the facts of a case require modification of an MAI instruction. When an MAI instruction is applicable, its use is mandatory.
Plaintiff urges that to grant a new trial for omission of the word 'direct' in the damage instruction is highly technical and makes form govern over substance. It must be recognized, however, that a In spite of the directions in MAI and the comments of the special committee in submitting its report, we have observed frequent deviations and 'improvements' in instructions given in cases reaching the appellate courts. In Hunter v. Norton, supra, for example, plaintiff gave an instruction which was a modification of MAI 17.02. Plaintiff substituted the words 'allowed a portion of the car she was driving to extend over onto the left or northbound traffic lane of said Highway 61' for 'drove on the wrong side of the road.' It was contended that the language used was in accordance with the facts and that defendant could not have been prejudiced by the modification. This court held the instruction to be prejudicially erroneous. It was objectionable for additional reasons, but this variation alone was sufficient to require reversal. See also Motsinger v. Queen City Casket Co., supra, for another instance of elimination and substitution of words in an MAI instruction.
system of instruction such as MAI is inherently standardized and inflexible. If this court is to make this system work, and preserve its integrity and very existence, we must insist that mandatory directions be followed and that the pattern instructions be used as written. Otherwise, as we quoted the special committee's report in our opinions in Motsinger v. Queen City Casket Co. Mo., 408 S.W.2d 857, 860, and Hunter v. Norton, Mo., 412 S.W.2d 163, 166:
In the case of Foote v. Thompson, Mo.App., 407 S.W.2d 637, decided by the Kansas City Court of Appeals before the Motsinger and Hunter cases were handed down by this court, MAI 17.15 was modified by substituting 'imminent danger' for 'immediate danger.' The substitution of the terms was held to be harmless error on the basis that the words 'imminent' and 'immediate' have the same meaning. Such substitution would not be permissible under the views herein expressed. It is not difficult to visualize what would happen if we should adopt a policy of approving the substitution of synonyms in MAI instructions. For example, Webster's Third International Dictionary lists 'consequence,' 'effect,' and 'outcome' as synonyms of 'result.' If the synonyms were substituted in MAI 4.01, we would have the jury being told in some cases to assess damages which are the 'direct result' of the occurrence and in other cases being told to assess damages which are either the 'direct consequence,' 'direct outcome,' or 'direct effect' of the occurrence. If, as plaintiff contends, we should approve elimination of the word 'direct' herein, such damage instruction then would direct the jury to assess damages which they found to be either the 'result,' 'consequence,' 'outcome,' or 'effect' of the occurrence. Such variations would constitute error under Rule 70.01(c), but if held to be nonprejudicial on the basis that the words are synonyms and convey the same meaning, the number of potential variations in all MAI instructions would be limited only by the number of synonyms available.
Other illustrations of the effect of a failure to insist on compliance with mandatory directions in MAI are readily apparent. MAI 1.02 prohibits submission of dual or multiple theories of recovery or defense in the conjunctive. Under the old system of instruction, many cases can be found which held that it was not error to instruct in the conjunctive, even if there was no evidence to support one such theory of recovery or defense. This conclusion was based on the view that the conjunctive simply imposed an additional burden on the party submitting that instruction Still another illustration is found in connection with converse instructions. MAI 29.01 states that a defendant is entitled...
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