Johnston v. Allis-Chalmers Corp., ALLIS-CHALMERS

• Decision Date: 04 August 1987
• Docket Number: No. 52204,ALLIS-CHALMERS,52204
• Citation: 736 S.W.2d 544
• Parties: James William JOHNSTON, et al., Plaintiffs-Appellants, v.CORPORATION, et al., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 544

736 S.W.2d 544

James William JOHNSTON, et al., Plaintiffs-Appellants, v. ALLIS-CHALMERS CORPORATION, et al., Defendants-Respondents.

No. 52204.

Missouri Court of Appeals,

Eastern District,

Division Three.

Aug. 4, 1987.

Motion for Rehearing and/or

Transfer Denied Sept. 2, 1987.

Application to Transfer Denied Oct. 13, 1987.

Louis J. Leonatti, Mexico, for plaintiffs-appellants.

David A. Oliver, Columbia, Rollin J. Moerschel, St. Charles, for defendants-respondents.

PUDLOWSKI, Presiding Judge.

Appellants, plaintiffs below, James William and Mary E. Johnston appeal from a verdict for respondents, defendants below, the Allis-Chalmers Corporation and the Donahue Corporation on James Johnston's claim for personal injuries which left him partially disabled and on Mary Johnston's claim for loss of consortium. Mary also appeals from the trial court's grant of a directed verdict for respondents on her claim for her own injuries. Appellants' claims arose from an accident in rural Monroe County in which a trailer manufactured by the Donahue Corporation and distributed by the Allis-Chalmers Corporation as a farm implement carrier came loose from the pickup truck pulling it and careened into the Johnstons' car after hitting another vehicle. Appellants' claims were founded on a strict liability theory. They alleged that the trailer was defective and unreasonably dangerous in that it was not equipped with safety chains for use in attaching it to a car or truck. ¹

Appellants contend that the trial court erred in giving instructions number 14 and 16, because a defendant is limited to a single converse instruction where multiple plaintiffs submit verdict directors based on one theory of recovery, and said instructions amounted to allowing both respondents two converse instructions against the appellants' theory of recovery. Instructions number 14 and 16 were both included in the package of instructions addressed to Mary Johnston's loss of consortium claim. Instruction number 14 states: "In your verdict on the claim of Mary E. Johnston you must not assess a percentage of fault to defendant Allis-Chalmers unless you believe defendant Allis-Chalmers distributed the trailer in a defective condition unreasonably dangerous." Instruction number 16 read: "In your verdict on the claim of Mary E. Johnston you must not assess a percentage of fault to defendant Donahue Corporation unless you believe defendant Donahue Corporation manufactured the trailer in a defective condition unreasonably dangerous."

At the time when instructions 14 and 16 were given in the package of instructions to be used in deciding Mary's loss of consortium claim, instructions 8 and 10 had already been given in the package of instructions to be used in deciding her husband, James', claim. Instructions number 8 and 10 were identical to instructions 14 and 16 respectively except that the beginning phrase in both 8 and 10 read, "[i]n your verdict on the claim of James W. Johnston...."

Appellants contend that, even though they both submitted their claims on the same theory of liability, each defendant was allowed to converse that theory twice thus overemphasizing the "defense" in the minds of the jurors. We note first that respondents' converse instructions were not affirmative converses asserting defenses. They were negative converses directed to an element of appellants' causes of action, and therefore there was no "defense" to be overemphasized.

Appellants cite Cragin v. Lobbey, 537 S.W.2d 193, 196 (Mo.App.1976), Wyatt v. Southwestern Bell Telephone Company, 514 S.W.2d 366 (Mo.App.1974), and M.A.I. 33.01 for the proposition that while each defendant is entitled to a separate converse with respect to each asserted theory of liability, where both a claim for personal injury damages and a derivative claim for loss of consortium are asserted, the only allowable converse instruction with respect to the consortium claim is one directed to the consortium claim plaintiffs' separate damage element. However, both Cragin and Wyatt, as well as preceding cases which stood for the same proposition such as Joggerst v. O'Toole, 513 S.W.2d 722 (Mo.App.1974), were decided prior to the Supreme Court's modification of M.A.I. in 1980 to mandate the packaging of instructions where there is more than one claim involved in a particular cause, M.A.I. 2.05 and See M.A.I. 2.00 General Comment B. ²

Instruction number six and twelve were patterned on M.A.I. 2.05. Instruction number six read: "Instructions 6 through 11 and general instructions 1 through 5 apply to the claim of James W. Johnston for personal injury. Use verdict form A to return your verdict on this claim." Instruction number 12 read: "Instructions 12 through 17 and general instruction 1 through 5 apply to the claim of plaintiff Mary E. Johnston for damages as a result of any injury to her husband James W. Johnston. Use verdict B to return your verdict on this claim."

The packaging requirement means that except for the general instructions given in all civil cases, all the instructions needed to resolve a particular claim are to be packaged together, so that each package is in fact a separate unit. M.A.I. 2.05, submitted in the case sub judice as instructions number 6 and 12, instructed the jury to apply only the instructions in the particular package and the general instructions to arrive at the verdict on that package and there is no provision for adding the converse or converses to the instructions in the general instruction package. There is no instruction stating that if the verdict is not for the plaintiff who was directly injured, there can be no verdict for his spouse on the consortium claim. To the jurors the packages are completely separate and we therefore hold that a defendant is allowed to converse any or all elements of each plaintiff's verdict director in the package directed to that plaintiff's claim.

The old rule was based on the fact that a defendant could address one converse to the claims of all the plaintiffs asserting claims against him on a particular theory of liability. Therefore, allowing separate converses was held to be overkill. However, M.A.I. 2.05 changed the situation by withdrawing from defendants the opportunity to converse the verdict directors of multiple plaintiffs with one converse instruction. Each plaintiff's claim and the directions applying to his claim are now separate and therefore, the rationale of Cragin and Wyatt is no longer applicable as the trial court properly found.

Additionally, we also note since Fowler v. Park Corporation, 673 S.W.2d 749, 755-56 (Mo. banc 1984) and its progeny, instructional error is no longer an automatic ground for reversal, as it was when the Wyatt and Cragin cases were decided. Instructional error stands as a ground for reversal only where the record on appeal indicates substantial prejudice. Fowler, supra at 757 and see also Grady v. American Optical Corporation, 702 S.W.2d 911, 920 (Mo.App.1985). If Instructions 14 and 16 were considered overkill, they were not incorrect statements of law, and no substantial prejudice appears from the record.

Appellants also contend that Instructions number 14 and 16 were prejudicial because the instructions did not refer to Mary Johnston's claim "for loss of consortium," but only to the "claim of Mary E. Johnston." They contend that this fact confused the jury, but they did not indicate in their brief wherein and why this confusion occurred. Instruction number 12, cited earlier, was the first instruction in the package relating to the loss of consortium claim. It specifically provided that the instructions in that package applied "to the claim of Mary E. Johnston for damages as a result of any injury to her husband James W. Johnston." Both the verdict director against defendant-respondent Allis-Chalmers and the verdict director against defendant-respondent Donahue Corporation began: "Your verdict must be for plaintiff Mary E. Johnston on her claim for damages as a result of any injury to her husband...." We find no possibility of confusion or prejudice to appellants due to the wording of defendants' converses.

We find no error with respect to the giving of Instructions number 14 and 16.

We next address appellant Mary E. Johnston's contention that the trial court erred in directing a verdict against her on her claim for damages arising from the injuries she sustained in the accident. The basis for the trial court's decision to direct out Mary's independent claim was that she failed to present medical evidence to establish a connection between the accident and the headaches and pressure on her back and neck that constituted her alleged injuries.

In reviewing a directed verdict against a plaintiff:

the evidence must be considered in a light most favorable to the plaintiff accepting as true that which is not opposed to physical laws or not entirely unreasonable. Plaintiff is to be accorded all favorable inferences, and all unfavorable inferences are to be rejected. The defendant's evidence is to be rejected except where it aids the plaintiff's case. The plaintiff, however, bears the burden to remove his case from...