MFA Oil Company v. Robertson-Williams Transport, Inc
| Decision Date | 28 March 2000 |
| Citation | 18 S.W.3d 437 |
| Parties | (Mo.App. W.D. 2000) MFA Oil Company, Respondent, v. Robertson-Williams Transport, Inc., Appellant. WD57115 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Jackson County, Hon. John I. Moran
Counsel for Appellant: Gregory N. Pottorff and Hal D. Meltzer
Opinion Summary: Robertson-Williams Transport, Inc., appeals the trial court's grant of a new trial to MFA Oil Company.
Court holds: (1) The trial court did not abuse its discretion in granting MFA a new trial despite MFA's lack of specific objection to erroneous, incomplete instructions. Rule 78.08 provides that a court may grant a new trial on matters not preserved if necessary to avoid manifest injustice or a miscarriage of justice.
(2) This court will not review the trial court's finding of prejudice because the transcript is not adequate for such review.
Robertson-Williams Transport, Inc. ("Robertson") appeals an order of the trial court granting MFA Oil Company ("MFA") a new trial based upon instructional error. Robertson contends that the trial court erred because MFA waived objection to the faulty instruction because it failed to raise any objection before the jury retired; the instruction dealt solely with the issue of damages; MFA failed to offer a clarifying instruction; the jury was not told the source of the instruction; the instruction correctly submitted the issue of damages; and the trial court's answer to the jury's question about the instruction correctly explained what the jury had to do.
On October 27, 1993, MFA entered into an agreement with Robertson for Robertson to transport diesel fuel to MFA's bulk plants in Missouri. Robertson transported the fuel to MFA's Warrensburg and Albany plants. MFA then resold the fuel to its customers for use in diesel engine equipment. MFA filed suit against Robertson on September 3, 1996, alleging that the fuel had been contaminated with calcium chloride. MFA alleged that as a result of using contaminated fuel, its customers' diesel engines-were damaged and that MFA had reimbursed its customers for the losses they sustained due to use of the contaminated fuel. Although several theories were alleged, including negligence, strict liability, and breach of contract, the case was submitted to the jury only on breach of the implied warranty of merchantability.
The case was tried in December, 1998. The trial court submitted an instruction on mitigation of damages, tendered by Robertson, to the jury. Counsel for Robertson inadvertently represented that the instruction was from MAI 32.07. The instruction in question was actually based on MAI 32.07(a), a "failure to mitigate damages" instruction designed for use in FELA cases. Instruction No. 7 read:
If you find in favor of plaintiff, you must find that plaintiff failed to mitigate damages if you believe:First, either: plaintiff failed to adequately investigate and evaluate individual claims for engine repair, or
plaintiff failed to verify the nature and extent of damages, or
plaintiff failed to investigate whether repairs were reasonably necessary, or
plaintiff failed to verify whether each claim of engine damage involved the purchase of fuel after Robertson-Williams' October 27, 1993 delivery and prior to the time the Albany Key Pump was closed, and
Second, plaintiff, in one or more of the respects submitted in Paragraph First thereby failed to use ordinary care, and
Third, plaintiff thereby sustained damage which would not have occurred otherwise.
MFA objected to Instruction No. 7 on the ground that there was no credible evidence to support every disjunctive submission. Plaintiff MFA also objected on the grounds there was no evidence that even if MFA had done the things listed in the instruction, the damages would have been reduced.
During deliberations, the jury questioned the court about Instruction No. 7. The written question was as follows:
Instruction # 7 If you find in favor of plaintiff, you must find that plaintiff. . . . This appears that this instruction deals with findings in favor of the defendant not this plaintiff. Each statement in #1 begins with 'plaintiff failed to.'
Plaintiff MFA asked the court to instruct the jury to ignore Instruction No. 7 altogether because the instruction was not appropriate for this case because it was intended for a FELA case, and does not instruct the jury as to what they should do if they believe mitigation was required. The court responded to the jury's question:
If you find for plaintiff under Instruction #5, but you find that plaintiff failed to mitigate its damages under Instruction #7, you may reduce the damages awarded to plaintiff by an amount supported by the evidence.
The jury later submitted another question to the court:
In order to find for Plaintiff must we believe that all 5 items are true on Instruction 5. In other words if we don't agree with one of the statements do we find for defendant.
The court answered,
The jury returned a verdict in favor of Robertson. MFA filed a motion for new trial arguing, inter alia, that the trial court erred in giving Instruction No. 7: (1) because it was represented to be from MAI 32.07 which has been withdrawn and is no longer used; and (2) it was an erroneous statement of the law and failed to explain to the jury what they were to do if they found that mitigation was required. The trial court granted MFA's motion, finding that it erred in giving Instruction No. 7, mentioning that the instruction "was represented to be from MAI 32.07, which had been withdrawn and was no longer used," and that "such instruction was an erroneous statement of the law and failed to explain to the jury what it was to do if the jury did in fact find such mitigation [was required]."
Robertson appeals the trial court's grant of a new trial to MFA.
Where a new trial has been granted due to instructional error, the appellant must show either that the instruction given was not erroneous, or that the instruction "created no substantial potential for prejudicial...
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