The opinion
*96 Concurring Opinion
STORCKMAN, Judge.
In a similar situation I concurred in result only because: “S.Ct. Rule 70.01(c) says the prejudicial effect of an error arising out of a departure from an approved instruction will ‘be judicially determined’, while the opinion states that ‘prejudicial error will be presumed’ unless it is made perfectly clear that no prejudice could have resulted.” Brown v. St. Louis Public Service Company, Mo., 421 S.W.2d 255 , at page 260. My views as stated in Brown have not changed. Furthermore, we are admonished by other decisions of this court and by S.Ct. Rule 83.13(b) that: “No appellate court shall reverse any judgment, unless it believes that error was committed by the trial court against the appellant, materially affecting the merits of the action.”
Nevertheless, the law now is as declared by this court en banc in Brown v. St. Louis and by it I am bound. Having reiterated my view, I will now and henceforth concur without further ado.