Washington v. Sears, Roebuck & Co.

• Decision Date: 26 June 1979
• Docket Number: No. 40617,40617
• Citation: 585 S.W.2d 137
• Court: Missouri Court of Appeals
• Parties: William L. WASHINGTON, Appellant, v. SEARS, ROEBUCK & CO., Respondent.

Page 137

585 S.W.2d 137

William L. WASHINGTON, Appellant, v. SEARS, ROEBUCK & CO., Respondent.

No. 40617.

Missouri Court of Appeals, Eastern District, Division Three.

June 26, 1979.

Motion for Rehearing and/or Transfer to Supreme Court Denied

July 13, 1979.

Application to Transfer Denied Sept. 11, 1979.

Shifrin, Treiman, Dempsey & Ulrich, Richard R. Vouga, St. Louis, for appellant.

Joel D. Monson, Stuart M. Haw, Jr., St. Louis, for respondent.

CRIST, Judge.

Civil suit seeking damages for malicious prosecution (Count I) and negligent maintenance of business property (Count II). The trial court directed a verdict for defendant on Count II at the close of all the evidence. The jury returned a verdict for plaintiff on Plaintiff first complains the trial court erred by embellishing pattern instruction MAI 2.01. The cautionary instruction, as embellished, is set out in full in an appendix to this opinion.

Count I in the amount of $1,500. Plaintiff appeals. We reverse as to Count I and affirm as to Count II.

Most of the comments of the experienced trial judge were not prejudicial to either party. Indeed, most of his comments were good and probably helpful to the understanding of the jury. The Missouri Supreme Court Committee on Civil Jury Instructions would do well to consider some of his comments.

The Supreme Court of Missouri has given "a specific, direct order that MAI 2.01 must be given." City of Jackson v. Barks, 476 S.W.2d 162, 164 (Mo.App.1972); Rule 70.02(a); MAI 2.01 Notes on Use (1978). It should be given to the exclusion of any other instruction on the same subject. Rule 70.02(b). A trial judge should not interrupt his reading of MAI 2.01 for additional comments or interpretation; its provisions are clear and they adequately caution the jury. MAI 2.01 should be given as written. Cf.: Chapman v. Bradley, 478 S.W.2d 873 (Mo.App.1972); McCory v. Knowles, 478 S.W.2d 682, 685-86 (Mo.App.1972); City of Jackson v. Barks, Supra ; (cases in which minute deviations from MAI 2.01 required a new trial).

Continued excursions from MAI 2.01 must end. If the deviations were permitted in this case, the appellate courts would be deluged by appeals pertaining to the meaning of MAI 2.01 as interpreted by the various trial courts. The judgment as to Count I is reversed and remanded for a new trial.

Plaintiff also complains that the trial court erred in directing a verdict for defendant on plaintiff's Count II at the close of all the evidence. This count sought recovery for damages to plaintiff's car when it slid into a pillar located on defendant's premises. Plaintiff asserts negligence on the theory that defendant is liable for having failed to remedy icy conditions on its parking lot. We find no error.

Defendant failed to make a submissible case by his own uncontroverted testimony: When he got through work at about 5:30 p. m. it was freezing outside and raining. Because of the bad weather, he went to Northwest Plaza Sears to get a battery. He had been having battery trouble. He was aware that it had recently started sleeting and continued to sleet as he arrived at the Sears service center. While he was driving on the parking lot outside the service center, his car slid on some ice and hit a concrete pillar, causing damage to his car. At the moment the car struck the pillar it was sleeting and getting worse.

We do not hold Per se that no distinction exists between the "slip and fall" cases cited by both parties and cases, such as the present one, involving automobile collisions on icy parking lots. But on the particular facts here present, we find those cases persuasive. Plaintiff knew of the condition, dangerous or not, as much as did the defendant. A warning would have told plaintiff nothing more than he already knew. There was a general condition of freezing rain or sleet at the time of the accident. The plaintiff did not make a submissible case. Johnson v. Murphy, 417 S.W.2d 527, 529 (Mo.App.1967).

The judgment of the trial court in directing a verdict for defendant on Count II of plaintiff's petition is affirmed.

REINHARD, P. J., and GUNN, J., concur.

APPENDIX

Portions underlined are taken from MAI 2.01. All other comments were inspired by the trial court and made Ex gratia.

"INSTRUCTION NO. 1

This case will proceed in the following order:

First the parties may each make an opening statement outlining the case. Second, the Plaintiff will first introduce evidence. At the conclusion of all of the Plaintiff's evidence the Defendant has a right to introduce evidence. Rebuttal evidence may be introduced. Third, at the conclusion of all the evidence further instructions will be given after which the attorneys may make their closing arguments and then you will select a foreman or forelady or foreperson, whatever way you want to describe it, it doesn't mean that you have to be a man to be the foreman of the jury, Deliberate and arrive at your verdict.

2. Faithful performance by you of your duties is vital to the administration of justice. Now listen carefully to number three and number four because they explain your role and mine, what I referred to earlier.

The law applicable in this suit is given you in these instructions and in other instructions that you will receive at the close of all the evidence in this case and it is your duty to follow all such instructions. Now as I told you earlier someone has to interpret what the rules are and the duty of interpreting what the rules are is given to the trial Judge. When I make an interpretation as to what the law is that binds all parties to the case. It binds the Plaintiff, the Defendant, and the jury. All must then accept my interpretation of what the rules are as being the law and whether they agree with it or not, that's the rules we must play by once the trial Judge makes that determination so all of you have taken an oath to follow the instructions and you must do that. Now you may say, 'What if the trial Judge is wrong?' Well, you see this young lady writing on her stenotype machine? That's the reason why she's taking down every word what is said because if I make a mistake as to the law either of the parties to the lawsuit or both of them may ask my bosses at the Appellate Court to review what I have done and if they decide that I that I decided wrongly and made a wrong interpretation of the law then they tell me so and they tell me what they want me to do. They say try it again, set it aside, do this, whatever has to be done they direct me to do it and I must take their rulings. That way you see we have standardization across the State of Missouri because every trial Judge is required to know the law and if he doesn't know it and the Appellate Court says that he's wrong in making an interpretation they correct him and that way the same law will be applied in Cape Girardeau, Kansas City, St. Louis County, in the City of St. Louis, all the Judges interpret the law the same way and the Appellate Court makes the decisions, and that's why she is there writing these words down.

Now, I might mention two things that come from that that sometimes give jurors trouble. Although our court reporter is making a record for the Appellate Court jurors are not allowed and I am not allowed to send to you a copy of the transcript that she makes so if you listen to a witness and then when you begin your deliberations you say, 'I'd like to find out what witness X says, I'll send to the Judge a request, send up the testimony of the transcript of witness X.' If you do that I will have to tell you that I cannot follow that request, I cannot accede to that request. Jurors in the State of Missouri are not allowed to receive the transcript of the trial. It is for the Appellate Court. Now, you might say and we have had one or two other jurors say, 'Well, I'll make my own notes,' and whip out a little pad and starting writing down during the trial what is said. That isn't allowed either. By Missouri law, no juror is allowed to make statements to make a record. The reason for that is that this lady here writing down what she says is the testimony and you go up to your jury room and there you dispute about it the tendency would be to accept whatever she wrote down and since she's not an official court reporter and may have gotten it wrong, it wouldn't be fair so no one is allowed to make notes nor can I supply the notes to you. That's why there's twelve of you on a jury, that's the reason why there's twelve instead of two or three so that all twelve can listen and all twelve will most likely come to an accurate recollection of what was actually said.

Now this instruction also refers to other instructions that you will receive at the close of all of the evidence in the case. When the case is concluded the Court will then give you tailored instructions for this particular case. These instructions will be geared for this case and this case only and they're done frankly first of all from my talking to the counsel here who give me their recommendations as to what they think the law is and what they think the instructions should say and they will talk to me about it and demonstrate to me if need be and give me proof as to what they believe the law should be and then I will prepare it in instructions and will sign it as the Judge giving you the instructions as to the law. When I give those instructions to you, although they may have suggested it, it is the Court's instructions and it is my responsibility to give you an accurate instructions and like I say, if I make a mistake in the instructions then the Appellate Court will tell me so. Now, unlike these instructions which are general in nature, the ones that we give at the end of the case are tailored to the particular case and they are very, very carefully drafted even to punctuation with a comma comes where the word they or could give a possibly wrong interpretation and is very carefully gone over. Therefore, because it is so...