Walsh v. St. Louis Nat. Baseball Club, Inc.

• Decision Date: 21 January 1992
• Docket Number: No. 59388,59388
• Citation: 822 S.W.2d 559
• Parties: John WALSH, Plaintiff/Appellant, v. ST. LOUIS NATIONAL BASEBALL CLUB, INC., Defendant/Respondent.
• Court: Missouri Court of Appeals

Page 559

822 S.W.2d 559

John WALSH, Plaintiff/Appellant, v.ST. LOUIS NATIONAL BASEBALL CLUB, INC., Defendant/Respondent.

No. 59388.

Missouri Court of Appeals,

Eastern District,

Division Five.

Jan. 21, 1992.

Vatterott, Shaffar & Dolan, L. Joseph Garavaglia, St. Ann, for plaintiff/appellant.

Rabbitt, Pitzer & Snodgrass, Daniel T. Rabbitt, Robert D. Rowland, St. Louis, for defendant/respondent.

AHRENS, Judge.

Plaintiff, John Walsh, appeals from a judgment entered on a jury verdict in favor of defendant, St. Louis National Baseball Club, Inc., on plaintiff's petition for assault and false imprisonment.

On appeal, plaintiff claims the trial court erred in: (1) submitting defendant's affirmative defense instructions, because said instructions did not constitute an accurate statement of the law applicable to the case, in that they omitted the necessary element that plaintiff remained on defendant's premises without permission; (2) giving the aforementioned instructions, because there was no evidence that defendant requested plaintiff to leave the premises or gave plaintiff a reasonable opportunity to do so; (3) submitting said instructions, because "technical legal terms" were used without definition and because no ultimate facts were hypothesized for the jury's determination; (4) prohibiting plaintiff's counsel from commenting to the jury on defendant's failure to call witnesses from a list available to defendant; (5) refusing to submit plaintiff's punitive damage instructions, because the evidence supported a finding that defendant's agents acted with an evil motive; and (6) overruling plaintiff's best evidence objection to the testimony of a witness concerning the wording on a baseball game ticket.We affirm.

Viewed in a light most favorable to the verdict, the evidence at trial established the following facts.On June 28, 1983, plaintiff attended a doubleheader at Busch Memorial Stadium in St. Louis.Plaintiff brought a sign with him which read, "Trade Whitey" on one side, and "Who's on first?" on the other.Plaintiff held up the sign without incident several times during the first game.During the intermission between the first and second games, plaintiff moved from his usual seat to a seat on the first base side of the stadium, eight rows behind the Cardinals' dugout.

During the first inning of the second game, plaintiff resumed displaying the sign over his head.At that time, an usher, Gretchen Connerly, came to plaintiff's seat and asked him to keep the sign down.Plaintiff complied for two innings, but then displayed the sign.Ms. Connerly went to plaintiff's seat three to five times and asked him to keep the sign down; she asked to see plaintiff's ticket, and plaintiff threatened her.Debris was thrown in plaintiff's direction when he displayed the sign.

Ms. Connerly requested the assistance of her supervisor, Milton Ochs.Mr. Ochs asked plaintiff to keep the sign down because it was obstructing the view of other fans and causing a disturbance.Mr. Ochs did not recall plaintiff's response.

Because Ms. Connerly saw plaintiff display the sign again after Mr. Ochs left, she asked Dave Zeugin, a fellow usher, to speak with plaintiff.Dave Zeugin told plaintiff that he would hold the sign, and that plaintiff could pick it up after the game.Plaintiff refused to relinquish the sign and told Mr. Zeugin to "get someone with more authority."Mr. Zeugin left and returned with four other ushers.

Wayne Zeugin, Dave Zeugin's father and Chief of Service for St. Louis Usher Service, told plaintiff the sign was causing a problem and that ushers had received complaints from fans.Plaintiff was agitated and argumentative.When plaintiff refused to surrender the sign, Wayne Zeugin summoned off-duty police officers employed by the Cardinals.Wayne Zeugin testified that before the police arrived, plaintiff stood and proceeded up the aisle in front of the ushers, who then walked plaintiff to the center doors at the back of the seating area and through a lobby to a main street.Plaintiff testified that ushers grabbed him by the arms and led him to the top of the aisle.Once outside the stadium, plaintiff was searched and handcuffed by the police.

In his first three points on appeal, plaintiff raises instructional error, contending the trial court erred in submitting and giving defendant's affirmative defense instructions.

As an affirmative defense instruction to plaintiff's assault verdict director, defendant submitted Instruction 10, a modification of MAI 32.09[1969 New]¹:

Your verdict must be for defendant if you believe:

First, defendant had reasonable cause to revoke plaintiff's license, and

Second, plaintiff's license to remain on the defendant's premises was revoked, and

Third, the ushers or security personnel used only such force as was reasonable and necessary to remove plaintiff from the premises.

Defendant also submitted Instruction 14, a modification of MAI 32.13[1978 Revision], ² as an affirmative defense instruction to plaintiff's false imprisonment verdict director:

Your verdict must be for defendant if you believe:

First, defendant had reasonable cause to revoke plaintiff's license, and

Second, plaintiff's license to remain on defendant's premises was revoked, and

Third, the restraint of the plaintiff was made in a reasonable manner for the purpose of removing plaintiff from the premises.

Initially, we note that plaintiff did not object at trial to the affirmative defense instructions submitted by defendant.If plaintiff had entered a specific objection at trial, a general assertion in his motion for new trial would be sufficient to preserve the point for our review.Salamy v. State Farm Fire and Casualty Co., 629 S.W.2d 653, 654(Mo.App.1982).However, since no such objection was made, plaintiff's motion for new trial must contain specific objections to defendant's instructions.Id.;Rules 70.03and78.07.In the motion, the allegations of error should be sufficiently definite to direct the trial court's attention to the particular acts or rulings asserted to be erroneous, so that the court may have one last opportunity to correct any error without the delay, expense, or hardships of an appeal.Skelton v. General Candy Co., 539 S.W.2d 605, 610(Mo.App.1976).

Plaintiff's motion for new trial states in pertinent part:

1.The Court prejudicially erred in giving, at the request of Defendant, Defendant's Affirmative Defense InstructionNos. 10 and 14, because:

(a) There was no evidence to support the submission of Paragraph Second of InstructionNo. 10andParagraphs Second and Third of InstructionNo. 14;

(b)Paragraph Second of InstructionNo. 10andParagraphs Second and Third of InstructionNo. 14 are not supported by sufficient evidence to permit the jury to make a finding thereunder;

(c) Said instructions constitute a roving commission particularly by the use of the words "Plaintiff's license to remain on the Defendant's premises was revoked"(emphasis original), in that they permitted the jury to find against Plaintiff for any circumstances they[sic] might decide constituted a revocation of Plaintiff's license, or, for that matter, for any circumstances they[sic] might decide constituted a "license"(emphasis original);

(d) Said Instructions are not authorized by the Missouri Supreme Court, and do not constitute an accurate statement of the law applicable to the case.

The objection stated in paragraph 1(c) and set forth in plaintiff's third point is made with adequate specificity to preserve that claim of error for our review.However, the objections stated in paragraphs 1(a) and 1(b) are inadequate to preserve the objection upon which plaintiff's second point is based.Although plaintiff in his motion states generally that the evidence was insufficient to support paragraph second of Instruction 10 ³ and paragraphs second and third of Instruction 14, he makes his specific claim of insufficiency for the first time on appeal: that there was no evidence that plaintiff's license was revoked, in that no one told or asked him to leave, warned him he might have to leave, or gave him the opportunity to do so.Similarly, paragraph 1(d) of plaintiff's motion is a general objection to defendant's affirmative defense instructions and does not specifically state the error claimed.Plaintiff first alleges specific error in his brief on appeal: the "instructions did not constitute an accurate statement of the law applicable to the case in that they omit the necessary element that plaintiff remained on the defendant's premises without permission"(emphasis added).Because plaintiff at trial failed to object to defendant's affirmative defense instructions, and because the objections in paragraphs 1(a), 1(b), and 1(d) of plaintiff's motion for new trial are general rather than specific, the claims presented in plaintiff's first and second points preserve nothing for our review.

In his third point, plaintiff claims the trial court erred in giving defendant's affirmative defense instructions because they gave the jury a "roving commission" to determine whether plaintiff's license to remain on defendant's property was reasonably revoked.Specifically, plaintiff alleges error in the failure to define the terms "license" and "revoked."Plaintiff further contends that defendant's instructions failed to hypothesize ultimate facts for the jury's determination; however, plaintiff makes this claim for the first time on appeal.We consider only the definitional claim.

It is the duty of a party who contends that a word needs definition to offer an instruction containing a definition of the term.Turner v. Norfolk & S. Ry., 785 S.W.2d 569, 574(Mo.App.1990)(citingHenson v. Jasinsky, 251 S.W.2d 601, 603(Mo.1952)).Further, a party's failure to request a definitional instruction prevents him or her from complaining on appeal of the failure to define a word in an instruction.Id.(citingDeClue v....