Murphy v. City of Springfield

• Decision Date: 31 July 1990
• Docket Number: No. 16080,16080
• Citation: 794 S.W.2d 275
• Parties: Clifford W. MURPHY, Trustee, American Drilling Service Company Liquidating Trust, Plaintiff-Respondent, v. CITY OF SPRINGFIELD, Missouri, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 275

794 S.W.2d 275

Clifford W. MURPHY, Trustee, American Drilling Service

Company Liquidating Trust, Plaintiff-Respondent, v. CITY OF SPRINGFIELD, Missouri, Defendant-Appellant.

No. 16080.

Missouri Court of Appeals,

Southern District,

Division Two.

July 31, 1990.

Robert H. Handley, Asst. City Atty., Springfield, for defendant-appellant.

Sharon F. Daily, Greensfelder, Hemker & Gale, St. Louis, for plaintiff-respondent.

SHRUM, Judge.

Defendant City of Springfield (City) appeals from a judgment, following jury trial, in favor of plaintiff for $88,950.40. The City presents six points alleging trial error. Twice, this case has been before this court. Detailed background facts are found in the earlier opinions. ¹

Plaintiff had no contract with the City but was a subcontractor who constructed 28 straight shaft foundation caissons for the City on which piers to support a viaduct were to be placed. Plaintiff claimed to have based its bid to general contractor Ted Wilkerson, Inc., on subsurface information shown on a boring log contained in the plans and specifications. The boring log was prepared from test boring logs earlier performed for the City at 13 of the 28 pier sites. The City claimed the test borings were done to determine how far down the bedrock was. A disclaimer as to the accuracy of the boring log information was placed on the plans. ² Plaintiff presented evidence that, notwithstanding such language, it was customary in the industry for drilling contractors to rely on information on boring logs to determine the subsurface materials anticipated and, ultimately, the price they would quote for such information. The City offered evidence to the contrary and further offered evidence that they did not intend that a contractor should rely upon the borings (a) to determine what the subsurface materials might be or (b) in making their bids. The plaintiff's evidence was that subsurface conditions found during construction were different than what was represented in the boring logs and caused plaintiff to incur extra and unanticipated costs to complete the work in the sum of $88,950.40. ³ Plaintiff's case was based on the theory that the City had made a positive representation of a material fact (subsurface conditions as revealed on the boring logs) and that the information was false or incorrect; that plaintiff did not know when it submitted its bid that the information was false or incorrect; that it reasonably relied upon the positive representations made; and that it was damaged as a direct result of the representations. This court affirms.

The City's initial point claims prejudicial error in the definition of "positive representation" in Instruction No. 6 (verdict-director). The definition read:

A positive representation is a statement about conditions at the project site concerning which Defendant is presumed to speak with knowledge and authority. (Emphasis added.)

The City cites Ideker, Inc. v. Missouri State Highway Com'n, 654 S.W.2d 617, 624 n. 3 (Mo.App.1983), as support for its position that the definition was prejudicially wrong:

Collectively, [the cases] leave no escape from the conclusion that a bright line is drawn between "positive" or "affirmative" representations and representations of a lesser degree which are merely implied or suggestive. A "positive" or "affirmative" representation distinguishes an actionable representation from one which is merely implied or suggestive. Ergo, a "positive" representation of a material fact is a necessary element of such a cause of action.... The requirement that the representation be "positive" or "affirmative" goes to the very heart of whether a submissible case is made....

The City says the definition of "positive representation" in Instruction No. 6 made no distinction between actionable positive assurances by the City and bad-guesses by plaintiff; therefore, misled the jury as to what was "presumed." Plaintiff responds that the definition was correct and not error, citing as authority Hollerbach v. United States, 233 U.S. 165, 34 S.Ct. 553, 58 L.Ed. 898 (1914); and, alternatively, argues that if the definition of "positive representation" was error, it was not prejudicial.

Plaintiff's reliance on Hollerbach, supra, is misplaced. In Hollerbach the contractor brought suit to recover for the repair of a dam originally built by the government. The specifications for the repair job provided, "The dam is now backed for about 50 feet with broken stone, sawdust, and sediment to a height within 2 or 3 feet of the crest...." Hollerbach, 233 U.S. at 171, 34 S.Ct. at 555, 58 L.Ed. at 901. That representation was found to be untrue. There was an underlying cribwork of an average height of 4.3 feet consisting of sound logs filled with stones. Judgment for the government was reversed. The court observed:

[T]he specifications assured them of the character of the material,--a matter concerning which the government might be presumed to speak with knowledge and authority. We think this positive statement of the specifications must be taken as true and binding upon the government, and that upon it, rather than upon the claimants, must fall the loss resulting from such mistaken representations.

Hollerbach, 233 U.S. at 172, 34 S.Ct. at 556, 58 L.Ed. at 901 (emphasis added). The statement in Hollerbach has to be read in context, i.e., the government built the dam; hence, they should know the materials and method of construction utilized. The language in Hollerbach was a fair comment on the evidence in that case. It is not correct as a definition of a "positive representation." If definition of the term "positive representation" was necessary, it was error to define the term on the basis of how the defendant acquired the information being represented, i.e., "a statement about conditions ... which defendant is presumed to speak with knowledge and authority." Whether a representation is "positive" or "affirmative" or is merely a representation of a lesser degree (merely implied or suggested), is not determined from how the representation is formulated. The public entity may have actual knowledge of the fact represented; the fact represented may be presumed; or the public entity may have no basis for its representation. The determinative issue is whether it is a positive representation. Ideker, supra; Clark v. City of Humansville, 348 S.W.2d 369, 374 (Mo.App.1961). Determining what is and what is not a "positive representation," will always be answered by the trier of fact case by case. Murphy v. City of Springfield, 738 S.W.2d at 527 n. 7; Sanders Co. Plumbing v. City of Independence, 694 S.W.2d 841, 847 (Mo.App.1985).

The trial court must define legal or technical terms, but it need not define non-technical, readily understood words or commonly used words. McMullin v. Politte, 780 S.W.2d 94, 96 (Mo.App.1989). The decision to submit a definitional instruction is a matter within the sound discretion of the trial court. DeWitt v. American Family Mut. Ins. Co., 667 S.W.2d 700, 711 (Mo. banc 1984). When an instruction is not found in MAI (as is the case here), the test of that jury instruction is whether it "follows the substantive law and can be readily understood." Massey-Ferguson Credit Corp. v. Black, 764 S.W.2d 137, 144 (Mo.App.1989); Southern Missouri Bank v. Fogle, 738 S.W.2d 153, 157 (Mo.App.1987). In this case, the definition of "positive representation" included in the instruction given by the court was erroneous and did not follow the substantive law for the reasons outlined.

It is necessary, however, to determine whether the erroneous definition in Instruction No. 6 prejudiced the defendant. Rule 70.02(c). ⁴ "It is not enough to show erroneous deviation unless prejudice also appears." Hudson v. Carr, 668 S.W.2d 68, 71 (Mo. banc 1984). The submitted instruction was not an approved MAI instruction and so no error is presumed and Rule 70.02(b) need not be considered. Cornell v. Texaco, Inc., 712 S.W.2d 680, 682 (Mo. banc 1986). In cases such as this, where a challenged instruction is not subject to the requirements of MAI, guidelines have evolved to resolve disputes over such instructions. Wilson v. Bob Wood & Associates, Inc., 633 S.W.2d 738, 750 (Mo.App.1981). Those guidelines include the rule that to reverse a jury verdict on the ground of instructional error, it must appear that the offending instruction misdirected, misled, or confused the jury; and, the burden to prove the proposition rests with the party challenging the instruction. Cornell v Texaco, Inc., supra, at 682; Wilson v. Bob Wood & Associates, Inc., supra, at 750-51. The challenging party has been required to prove the instruction misdirected, misled or confused the jury where the alleged error is failure to define terms used in the verdict-director. Essex v. Getty Oil Co., 661 S.W.2d 544, 558 (Mo.App.1983) (the term occurrence); Fowler v. Park Corp., 673 S.W.2d 749, 754-56 (Mo. banc 1984) (the term negligence).

The City argues that by using the term "presumed" in the instruction, the term "positive representation" was defined "in a manner confusing to lawyers and jurors alike." That argument immediately raises the question of why counsel for the City did not request a correct instruction at the instruction conference. "If counsel [was faced] with an instruction containing a patent error, and is of the opinion that the instruction might make argument more difficult or have a substantial effect on the jury, it is perfectly possible to request a correct instruction at the instruction conference mandated by Rule 70.02(a)." Fowler v. Park Corp., supra, at 756-57. The only record at the instruction conference relative to objections by the City to Instruction No. 6 is the following:

MR. HANDLEY: Your Honor, I'm not sure it is on the record or not, but I do want it to be shown that the defendant does object to each and every one of plaintiff's instructions as given.

I've also noted that...