Gormly v. Johnson, 54506

• Decision Date: 09 March 1970
• Docket Number: No. 54506,No. 2,54506,2
• Citation: Gormly v. Johnson, 451 S.W.2d 45 (Mo. 1970)
• Parties: Dorothy GORMLY, Appellant, v. Dexter J. JOHNSON, Respondent
• Court: Missouri Supreme Court

Page 45

451 S.W.2d 45

Dorothy GORMLY, Appellant, v. Dexter J. JOHNSON, Respondent.

No. 54506.

Supreme Court of Missouri, Division No. 2.

March 9, 1970.

Sherman Landau, St. Louis, for appellant.

Paul S. Brown, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondent.

HENRY I. EAGER, Special Commissioner.

In this action for personal injuries arising out of an automobile collision the jury returned a verdict for the defendant. After an unsuccessful motion for new trial plaintiff appealed. The collision occurred on October 17, 1966, at the intersection of Tholozan and McCausland Avenues in the City of St. Louis. Plaintiff was a passenger in a car driven by Mrs. Barbara Mohr and was traveling east on Tholozan. Defendant was driving north on McCausland. The collision occurred in the southeast quarter of the intersection. The case was submitted on assignments of negligence in failing to keep a careful lookout, or driving at an excessive speed, or failing to yield the right of way, all in the disjunctive as indicated in MAI 17.02. Defendant conversed negligence generally as permitted by MAI 33.03(2). This Court has jurisdiction since plaintiff's claim was for $35,000, and the record indicates that she suffered substantial injuries. In view of the limited nature of the points raised by appellant, it will not be necessary for us to review the evidence in any detail. The case was tried on September 23--25, 1968.

The sole questions raised by plaintiff (and we shall hereafter so designate her) are that the Court erred in giving Instructions 1 and 6 because they contained the pronoun 'his' in referring to plaintiff, instead of modifying each instruction so as to refer to plaintiff as 'her.' Instruction No. 1 was the cautionary MAI 2.01 (as it appeared before the revision appearing in the 2nd Edition of MAI, 1969.) The sentence in question, as included in the instruction, was: 'First, the plaintiff may make an opening statement outlining his case.' The second alleged error occurred in the burden of proof instruction, given as No. 6, which, as the record shows, was given 'On Court's Own Motion.' The instruction as thus given conformed precisely to MAI 3.01 (1st Edition). The sentence in question read: 'The burden is upon plaintiff to cause you to believe the propositions necessary to support his claim against the defendant.'

Plaintiff insists that the use of the word 'his' in these two places was confusing and misleading to the jury, and that in failing thus to modify the MAI forms, the Court committed reversible error. Her counsel cites MAI, page XXXIV (1st Edition) stating that the instructions were prepared in terms 'of a single male plaintiff and a single male defendant,' and that pronoun modifications will be needed for 'multiple parties, corporations and females.' He cites Stewart v. City of Marshfield, Mo.App., 431 S.W.2d 819, Brannaker v. Trans-american Freight Lines, Inc., Mo., 428 S.W.2d 524, and Sweatman v. McClure, Mo.App., 416 S.W.2d 665, as indicating that the Instructions on Use are an integral part of the system of Missouri Approved Instructions. Of that there can be no doubt.

Defendant's counsel makes these points: (1) that plaintiff did not make a submissible case for the jury; (2) that no objection to Instruction No. 1 was raised in the motion for a new trial; (3) that in any event the use of the pronoun 'his' in either or both instructions could not possibly have confused or misled the jury. Ordinarily, when the point of no submissible case is raised we consider that first. Here, after giving the matter considerable thought, we have determined that since the instruction questions are very simple and insubstantial we should not encumber the books and perhaps complicate the law with a detailed recitation of the evidence and a discussion of the various applicable cases. We shall thus assume, for the purpose of this opinion, that plaintiff made a submissible case. In the view we take of the case neither party can be hurt by this method of procedure, as will be demonstrated.

The objection to Instruction No. 1 was not raised in the motion for new trial. The objection to No. 6 was so raised. Therefore, we consider whether the use of 'his' instead of 'her' constituted prejudicial error in the latter instruction. Plaintiff cites various cases as upholding the rigid rule requiring specific adherence to the forms of MAI. Murphy v. Land, Mo., 420 S.W.2d 505; Brown v. St. Louis Public Service Co., Mo., 412 S.W.2d 255; Hunter v. Norton, Mo., 412 S.W.2d 163; Gousetis v. Bange, Mo., 425 S.W.2d 91, and Brannaker and Stewart, supra. To these we may add: Cash v. Bolle, Mo., 423 S.W.2d 743; Burrell v. Mayfair-Lennox Hotels, Inc., Mo., 442 S.W.2d 47; Aubuchon v. LaPlant, Mo., 435 S.W.2d 648; Higgins v. Gosney, Mo., 435 S.W.2d 653; Motsinger v. Queen City Casket Co., Mo., 408 S.W.2d 857. As we said in Burrell, supra, 442 S.W.2d at loc. cit. 54: '* * * we have no intention of departing from the strict requirements of compliance with MAI which we have announced in such cases * * *.' Rule 70.01, V.A.M.R. provides that the giving of an instruction 'in violation of the provisions of this rule shall constitute error, its prejudicial effect to be judicially determined.' This, of course, includes the failure to follow an MAI instruction, where applicable, Rule 70.01(b). Instruction No. 6 strictly followed MAI 3.01, but it is true that the Court did not change the 'his' to 'her' in accordance with the Instructions on Use at page XXXIV of the book (1st Edition). We shall not quibble as to any possible difference in the failure to follow an instruction and a failure to follow the directions on use. Both are presumed to be error, and the only remaining question is whether the error was prejudicial.

We note here that there was one plaintiff and one defendant; there was no counterclaim to complicate the burden of proof instruction; plaintiff was the only party seeking damages. There was only one damage instruction and in that the jury was told that if it found the issues for plaintiff, it must award 'the plaintiff such sum as you believe will fairly and justly...