Hopkins v. Goose Creek Land Co., Inc., 47068

• Decision Date: 22 May 1984
• Docket Number: No. 47068,47068
• Citation: 673 S.W.2d 465
• Parties: Donald HOPKINS, d/b/a Quad County Contracting, Plaintiff-Respondent, v. GOOSE CREEK LAND COMPANY, INC., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 465

673 S.W.2d 465

Donald HOPKINS, d/b/a Quad County Contracting, Plaintiff-Respondent, v. GOOSE CREEK LAND COMPANY, INC., Defendant-Appellant.

No. 47068.

Missouri Court of Appeals,

Eastern District,

Division One.

May 22, 1984.

Motion For Rehearing and/or Transfer to

Supreme Court Denied

July 9, 1984.

Dana Hockensmith, Phillip Pitts, Hillsboro, for defendant-appellant.

Stanley D. Schnaare, Hillsboro, for plaintiff-respondent.

SNYDER, Presiding Judge.

Defendant Goose Creek Land Company, Inc. appeals from a jury verdict and judgment in favor of plaintiff Donald Hopkins, d/b/a Quad County Contracting, for $15,000.00. Appellant raises eight points of error, five of which challenge Instruction No. 5, the verdict director, and two of which challenge Instruction No. 6 on damages. It also alleges error in the trial court's denial of its motion for a directed verdict based on the statute of limitations. The judgment is affirmed.

The parties entered into an agreement in January, 1976. Hopkins was to perform work at a dam construction project. There was a rock quarry and a rock crusher at the site. Hopkins agreed to furnish certain pieces of equipment for weekly or daily rates and to act as foreman on the job for an additional $300 per week. Plaintiff furnished the equipment and performed the agreed services from March or April to June or July, 1976.

There is disagreement between the parties on the exact terms of the contract, the extent of Hopkins's performance, and the amounts paid to Hopkins by Goose Creek. There was detailed, and sometimes confusing, evidence, both documentary and parol. There were questions of credibility. The fact issues were resolved by the jury in favor of Hopkins, however, and Goose Creek has not argued that the verdict was against the weight of the evidence.

Goose Creek raises five points of error directed to Instruction No. 5, the verdict director, which was a modified version of MAI 26.06 on breach of a bilateral contract. Goose Creek contends:

1. The applicable instruction was MAI 26.03, the action on account verdict director instead of MAI 26.06.

2. Instruction No. 5 did not include all of the facts necessary to a finding in favor of plaintiff.

3. Instruction No. 5 referred to the defendant as "Goose Creek Land Company, Inc." thus emphasizing the corporate status of defendant.

4. Instruction No. 5 contained evidentiary facts.

5. Instruction No. 5 failed to limit plaintiff's right to reimbursement to parts and supplies used on behalf of defendant.

All of the points raised are denied.

Instruction No. 5 reads:

INSTRUCTION NO. 5

Your verdict must be for Plaintiff if you believe:

First, Plaintiff and Defendant entered into an agreement whereby Plaintiff agreed to furnish GOOSE CREEK LAND COMPANY, INC. a maintenance truck with tools at $50.00 per week, hylift at $600.00 per week, backhoe at $600.00 per week, welder and torches at $35.00 per week, International dump truck at $375.00 per week, Tardem float at $50.00 per day, a night watchman at $10.00 per night, Plaintiff's personal services for $300.00 per week and traditionally that he would be reimbursed by GOOSE CREEK LAND COMPANY, INC. for parts used on equipment, diesel fuel, gas fuel, cup grease, hydraulic oil and motor oil, and Defendant agreed to pay for those items at those stated rates, and

Second, Plaintiff performed his agreement, and

Third, Defendant failed to perform his agreement, and

Fourth, Plaintiff was thereby damaged.

Instructions to a jury must be supported by evidence from which the jury could reasonably determine the issues submitted in the instructions. Baker v. Brinker, 585 S.W.2d 256, 258[1, 2] (Mo.App.1979); Dickey Co., Inc. v. Kanan, 537 S.W.2d 430, 434 (Mo.App.1976). In determining the propriety of an instruction, evidence must be viewed in the light most favorable to the submission of the instruction, and a party is entitled to an instruction upon any theory supported by the evidence. Carter v. Boys' Club of Greater Kansas City, 552 S.W.2d 327, 333 (Mo.App.1977).

Goose Creek complains that it was error to instruct the jury on breach of contract, that the applicable instruction was MAI 26.03, the verdict director for an action on account. Not so.

There was ample evidence, when it is viewed in the light most favorable to the submission, to support the giving of the breach of contract verdict director. Both parties testified to the existence of an agreement for the performance of services and the providing of equipment for use in doing Goose Creek's work, and the entire trial was based on a contract action.

Goose Creek next argues that Instruction No. 5 should have required the jury to find specifically that defendant used Hopkins's equipment and that Hopkins provided services for the periods of time claimed by him in the evidence. There was evidence of a contract for the use of the equipment and the providing of services, although there were factual disputes.

The second paragraph of the instruction required the jury to find that plaintiff performed his agreement. The jury resolved the factual dispute in favor of Hopkins. Because the agreement is set out in detail in the first paragraph, a finding in favor of Hopkins on the second paragraph necessarily implies that he furnished the goods and services to Goose Creek and that the services were performed for a specific period of time.

Goose Creek continues its assault upon Instruction No. 5 by claiming that the instruction was erroneously modified to heighten the corporate status of defendant. Rather than referring to Goose Creek as, "defendant," the verdict director twice refers to it as "GOOSE CREEK LAND COMPANY, INC."

The verdict director does deviate from MAI 26.06 because MAI 26.06 nowhere makes provision for referring to either party by name. Deviation from an applicable MAI is presumed prejudicial error. Van Dyke v. Major Tractor & Equipment Co., Inc., 557 S.W.2d 11, 13 (Mo.App.1977).

Referring to a defendant by name, but to a plaintiff without naming him may not be prejudicial error, however. See Newsom v. Crockett, 453 S.W.2d 674, 677 (Mo.App.1970). A verdict director which referred to "defendant corporation" rather than simply "defendant" was held not prejudicial because the jury was not told anything that it did not already know. Boll v. Spring Lake Park, Inc., 358 S.W.2d 859, 866-867 (Mo.1962). Here, too, the reference to defendant's name and corporate status, while unfortunate, was not prejudicial. The jury already knew defendant's name. Moreover, contrary to defendant's assertions, plaintiff did not emphasize defendant's corporate status or argue to the jury that defendant was a "deep pocket."

Goose Creek again asserts error in the submission of Instruction No. 5 because it sets forth evidentiary facts rather than ultimate issues by listing the various rates charged by Hopkins.

This court need not discuss whether the specific rates of pay included in the verdict director were evidentiary facts. Most of them were not in dispute. Even if the inclusion of the rates of pay was error, it was not prejudicial to Goose Creek. If the...