# Eagleburger v. Emerson Electric Co. > Missouri Court of Appeals · June 29, 1990 · 794 S.W.2d 210 URL: https://www.frixlaw.com/law-library/cases/9773193 ## Case - **Full name:** Diane EAGLEBURGER, Et Al., Respondents, v. EMERSON ELECTRIC CO., Appellant - **Court:** Missouri Court of Appeals - **Decided:** June 29, 1990 - **Citations:** 794 S.W.2d 210; 1990 Mo. App. LEXIS 992; 1990 WL 88959 - **Precedential status:** Published - **Opinion:** Dissent by Flanigan - **Judges:** Crow, Shrum, Wasserstrom, Hogan, Parrish, Maus, Flanigan, Prewitt - **Cited by:** 33 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9773193 ## How later opinions describe it (automated extraction) - concluding a decision on ANSI standards’ relevance “was a determination to be made by the trial court” even though “there was substantial evidence by plaintiffs that the ANSI 35 standards applied . . . and substantial evidence by [the defendant] that they did not” - holding that point relied on that "does not identify any specific evidence that was excluded" preserves nothing for review ## Opinion text FLANIGAN, Judge, dissenting. I respectfully dissent and I concur in the dissenting opinion of Judge Maus. In rejecting Emerson’s point 2B, which attacks paragraph “Fifth” of Instruction 7, the principal opinion says: “Paragraph ‘Fifth’ of Instruction 7 does not parrot the final paragraph of MAI 25.04.” The principal opinion also says: “Emerson’s claim against the City remains pending, hence Emerson can scarcely deny this case involves two or more causes of damage.” The principal opinion, as I construe it, holds that paragraph “Fifth” of Instruction 7 is authorized by MAI 19.01. In Fahy v. Dresser Industries, Inc., 740 S.W.2d 635, 637-638 (Mo. banc 1987), our Supreme Court said: “In order for a plaintiff to recover under a products liability theory for an injury caused by an allegedly defective *248 product, he must establish each of the following: (1) defendant sold the product in the course of its business; (2) the product was then in a defective condition unreasonably dangerous when put to a reasonably anticipated use; (3) the product was used in a manner reasonably anticipated; (4) plaintiff was damaged as a direct result of such defective condition as existed when the product was sold. MAI 3d 25.04. See also Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371, 375-76 (Mo. banc 1986); Keener v. Dayton Elec. Mfg. Co., 445 S.W.2d 362, 366 (Mo.1969).” (Emphasis added.) Element (4) requires proof that plaintiff was damaged as a direct result of the defective product. Element (4) is required by MAI 25.04. When MAI “contains an instruction applicable in a particular case which the appropriate party requests or the court decides to submit, such instruction shall be given to the exclusion of any other on the same subject.” Rule 70.02(b). “The giving of an instruction in violation of the provisions of this Rule shall constitute error, its prejudicial effect to be judicially determined.” Rule 70.02(c). The fact that paragraph “Fifth” of Instruction 7 departs from the language of Fahy and MAI 25.04 should not be swept under the rug by the comment that complying with those authorities is mere parrot? ing. In its 1963 Report to the Supreme Court, the MAI committee said: “There are hundreds of currently acceptable instructions which use language more favorable to one side or the other than the proposed instructions. If counsel are permitted to ‘improve’ the approved instructions, even within the confines of specific precedents, the value of these instructions will be lost. Each such ‘improvement’ by one counsel will prompt an offsetting ‘improvement’ by his opponent and after a while the court will not be able to find the original with a divining rod.” MAI 3rd ed„ p. XL. The fact that Emerson has a third party petition pending against the city has nothing to do with the inquiry. So far as this jury was concerned, the city was riot a party, no instruction mentioning the city was given, and there was no issue concerning the presence or lack of negligence on the part of the city. I do not agree that MAI 19.01 is authority for paragraph “Fifth” of Instruction 7. MAI 19.01 reads: “19.01. [1986 Revision] Verdict Directing Modification — Multiple Causes of Damage In a case involving two or more causes of damage, the ‘direct result’ language of paragraph Third of verdict directing instructions such as 17.01 and 17.02 might be misleading. In such cases plaintiff, at his option, may substitute one of the following: Third, such negligence directly caused or directly contributed to cause damage to plaintiff. Third, such negligence either directly caused damage to plaintiff or combined with the [acts of (here describe another causing damage)] [condition of the (here describe product)] to directly cause damage to plaintiff.” (Emphasis added.) The first paragraph “Third” in MAI 19.-01 contains the word “negligence.” The second paragraph “Third” in MAI 19.01 also uses the word “negligence.” Paragraph “Fifth” of Instruction 7 does not. Moreover, if the negligence of the city was the purported reason for the wording of paragraph “Fifth” of Instruction 7, the second paragraph “Third” of MAI 19.01 requires a description of the city which, at the very least, would require the naming of the city. Instruction 7 does not do so. The liability issue before the jury involved the conduct of plaintiffs’ decedent and the condition of Emerson’s product. The words — “or directly contributed to cause” — contained in paragraph “Fifth” of Instruction 7 are subject to the construe *249 tion that they refer to the conduct of decedent. Indeed that is the only reasonable construction, and the drafter of Instruction 7 so intended. So construed, paragraph “Fifth” of Instruction 7 reads: “Fifth, such defective condition as existed when the product was sold by said defendant directly caused or, combined with the conduct of Gene Eagleburger, directly contributed to cause the death of Gene Eagleburger” That construction served to weaken or neutralize Instruction 8 which was given on behalf of Emerson and which followed MAI 32.23. Instruction 8 reads: “Instruction No. 8 Your verdict must be for defendant Emerson Electric Co. if you believe: First, when the product was used, Gene Eagleburger knew of the danger as submitted in Instruction No. 7 and appreciated the danger of its use, and Second, Gene Eagleburger voluntarily and unreasonably exposed himself to such danger, and Third, such conduct directly caused or directly contributed to cause any damage plaintiffs may have sustained.” Paragraph “Fifth” of Instruction 7 was a calculated device to reduce the burden imposed upon plaintiffs by paragraph “Fifth” of MAI 25.04 and to dilute Instruction 8. It is no answer to say that Instruction 7 refers to Instruction 8. Such reference is an additional requirement of MAI 25.04. This court should not condone a clear and deliberate violation of MAI 25.04. Instruction 7 deprived Emerson of a fair trial. The trial court committed prejudicial error in giving Instruction 7. I also agree with Judge Maus that Exhibit 54-A was improperly admitted. The foundation for Exhibit 54-A was plaintiffs Exhibit 54. All Exhibit 54 contained were incidents, happening outdoors, involving persons injured by reason of a contact between an aluminum ladder and a power line. Exhibit 54 did not contain the circumstances under which the injuries were sustained. It is common knowledge that aluminum is a conductor of electricity, a fact also known to the decedent. Exhibit 54 was proof only of that obvious fact. Since it contained no evidence that the accidents occurred under circumstances substantially similar to those at issue in the case at bar, it was inadmissible. I would reverse and remand. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9773193. Public record. Not legal advice.