Wims v. Bi-State Development Agency, BI-STATE

CourtMissouri Supreme Court
Writing for the CourtHOLMAN
Citation484 S.W.2d 323
PartiesJuanita WIMS, Plaintiff-Respondent, v.DEVELOPMENT AGENCY, Defendant-Appellant.
Decision Date11 September 1972
Docket NumberNo. 57771,BI-STATE

Page 323

484 S.W.2d 323
Juanita WIMS, Plaintiff-Respondent,
v.
BI-STATE DEVELOPMENT AGENCY, Defendant-Appellant.
No. 57771.
Supreme Court of Missouri, En Banc.
Sept. 11, 1972.

Page 324

Samuel A. Goldblatt, Burton H. Shostak, Kramer, Chused, Kramer, Shostak & Kohn, St. Louis, for plaintiff-respondent.

Boas, Schneider & Walsh, John A. Walsh, Jr., St. Louis, for defendant-appellant.

HOLMAN, Judge.

Plaintiff filed this suit to recover damages for personal injuries alleged to have been received while she was a passenger on a bus operated by Bi-State. The driver of a car involved in the occurrence was also a defendant. Upon trial the jury returned a verdict for both defendants. The trial court granted plaintiff a new trial as to Bi-State because of error in giving Instruction No. 4. Bi-State appealed to the St. Louis District of the Missouri Court of Appeals which adopted an opinion affirming the trial court's order. Upon Bi-State's application we ordered the case transferred to this court. It will be determined here 'the same as on original appeal.' Mo.Const., Art. V, § 10, V.A.M.S. Defendant Walker is not involved in this appeal and we hereinafter refer to Bi-State as defendant.

Page 325

Plaintiff's verdict directing instruction (No. 3) reads as follows:

'Your verdict must be for plaintiff, Juanita Wims, and against the defendant, Bi-State Development Agency, if you believe:

'First, defendant was the operator of the bus, and

'Second, the bus made a sudden and unusual stop and jerk, and

'Third, such movement of the bus was the direct result of the defendant's negligence, and

'Fourth, such negligence directly combined with the acts of Carl L. Walker to cause damage to plaintiff.'

The instruction complained of (No. 4) is a converse instruction which reads, as follows:

'Your verdict must be for defendant Bi-State Development Agency if you do not believe:

'First, the bus made a sudden and unusual stop and jerk, and

'Second, such movement of the bus was the direct result of defendant's negligence.'

In granting the new trial the trial court concluded that the instruction was confusing and misleading because it required the jury to 'not believe' two facts which were contradictory and could not be found conjunctively.

It should be noted that there was only on theory of recovery submitted in plaintiff's verdict directing instruction, i.e., 'a sudden and unusual stop and jerk' by the bus. In preparing its converse instruction defendant copied therein the exact wording of the second and third items of plaintiff's submission. In so doing it sought to converse the factual theory of recovery and defendant's negligence prefaced by the words 'if you do not believe'. In said instruction it would appear that defendant was endeavoring to follow the first method outlined in MAI 33.01 which states that said method of conversing a plaintiff's verdict directing instruction is 'An...

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22 practice notes
  • Collier v. Roth, No. 9305
    • United States
    • Missouri Court of Appeals
    • October 8, 1974
    ...facts.' Rule 70.01(e). And we have been mindful of the principles well stated and summarized in Wims v. Bi-State Development Agency, 484 S.W.2d 323, 325(3) (Mo. banc 1972): "(I)n determining the legal sufficiency of instructions (when not using an MAI form) . . . the court 'should not be hy......
  • Wills v. Townes Cadillac-Oldsmobile, CADILLAC-OLDSMOBIL
    • United States
    • Missouri Supreme Court
    • February 12, 1973
    ...667(2), and that their meaning to a jury of ordinarily intelligent laymen is our concern (Wims v. Bi-State Development Agency, Mo. banc, 484 S.W.2d 323, 325). The fact that defendant's attorney in final argument may have argued that McClary (not defendant itself) must have known of the posi......
  • Huff v. Union Elec. Co., No. 40183
    • United States
    • Court of Appeal of Missouri (US)
    • March 11, 1980
    ...to respondent; the instruction read as a whole, did not misstate the law or mislead the jury. Wims v. Bi-State Development Agency, 484 S.W.2d 323 (Mo. banc 1972); Arthur v. Royse, 574 S.W.2d 22 Respondent's motion to strike Points II, III and IV of appellant's brief was taken with the case.......
  • Dorrin v. Union Elec. Co., No. 39454
    • United States
    • Court of Appeal of Missouri (US)
    • April 3, 1979
    ...the law of a case, nor can there be an exercise of sound discretion as to the law of a case. " ' " Wims v. Bi-State Development Agency, 484 S.W.2d 323, 326 (Mo. banc 1972); Tate v. Giunta, 413 S.W.2d 200 In Highfill v. Brown, 340 S.W.2d 656 (Mo. banc 1960), the trial court's action in grant......
  • Request a trial to view additional results
22 cases
  • Collier v. Roth, No. 9305
    • United States
    • Missouri Court of Appeals
    • October 8, 1974
    ...facts.' Rule 70.01(e). And we have been mindful of the principles well stated and summarized in Wims v. Bi-State Development Agency, 484 S.W.2d 323, 325(3) (Mo. banc 1972): "(I)n determining the legal sufficiency of instructions (when not using an MAI form) . . . the court 'should not be hy......
  • Wills v. Townes Cadillac-Oldsmobile, CADILLAC-OLDSMOBIL
    • United States
    • Missouri Supreme Court
    • February 12, 1973
    ...667(2), and that their meaning to a jury of ordinarily intelligent laymen is our concern (Wims v. Bi-State Development Agency, Mo. banc, 484 S.W.2d 323, 325). The fact that defendant's attorney in final argument may have argued that McClary (not defendant itself) must have known of the posi......
  • Huff v. Union Elec. Co., No. 40183
    • United States
    • Court of Appeal of Missouri (US)
    • March 11, 1980
    ...to respondent; the instruction read as a whole, did not misstate the law or mislead the jury. Wims v. Bi-State Development Agency, 484 S.W.2d 323 (Mo. banc 1972); Arthur v. Royse, 574 S.W.2d 22 Respondent's motion to strike Points II, III and IV of appellant's brief was taken with the case.......
  • Dorrin v. Union Elec. Co., No. 39454
    • United States
    • Court of Appeal of Missouri (US)
    • April 3, 1979
    ...the law of a case, nor can there be an exercise of sound discretion as to the law of a case. " ' " Wims v. Bi-State Development Agency, 484 S.W.2d 323, 326 (Mo. banc 1972); Tate v. Giunta, 413 S.W.2d 200 In Highfill v. Brown, 340 S.W.2d 656 (Mo. banc 1960), the trial court's action in grant......
  • Request a trial to view additional results

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