holding that a negligent entrustment instruction was proper, in part, because it was consistent with the Restatement
How later courts described this case
- holding that a negligent entrustment instruction was proper, in part, because it was consistent with the Restatement
- stating that “[i]t also remains the law of Missouri that there are no legal degrees of negligence”
- damages award of $6 million not excessive where 19-year-old lost both of his legs above the knees when run over by a switch engine
- "It ... remains the [common] law of Missouri that there are no legal degrees of negligence.”
Written by the judges who cited it.
The opinion
HIGGINS, Judge,
dissenting.
Appellant’s principal contention, in my opinion dispositive of this appeal, is the charge that the trial court erroneously instructed the jury with respect to the degree of care enjoined on defendant by M.A.I. 11.02 II given as Instruction No. 3.
This instruction told the jury that the defendant owed plaintiff the highest duty of care — the duty of care that “a very careful and prudent person” would use in the circumstances of this case. The principal opinion (Section III) acknowledges that the court should have given M.A.I. 11.02 I to tell the jury that the defendant owed plaintiff the ordinary duty of care — the duty of care that “an ordinarily careful and prudent person” would use in the circumstances of this case. The opinion thus demonstrates the gravity of the misdirection on the standard of care; nevertheless it undertakes to excuse the error.
The law in Missouri is that imposition upon a defendant of a standard of care greater than that required by law is preju-dicially erroneous and requires reversal. Schlegel v. Knoll, 427 S.W.2d 480, 485 [10] (Mo.1968); Borgstede v. Waldbauer, 337 Mo. 1205 , 88 S.W.2d 373, 374 [4] (Mo. banc 1935); Oesterreicher v. Grupp, 119 S.W.2d 307 , 308[1] (Mo.1938). In Schneider v. Bi-State Development Agency, 447 S.W.2d 788, 791 [7] (Mo.App.1969) the court held that an instruction which imposed upon a defendant a “highest degree of care” standard when the law required that it exercise “ordinary care” was prejudicially erroneous and required that a judgment entered in the case be reversed and the cause remanded.
Nor can the principal opinion excuse the prejudicial effect of the instructional error by attributing to the defense improper motives and accusing counsel of “sandbagging.” The defendant acted within its rights when it did not object at trial to the now questioned instructions. Rule 70.03 is explicit:
Counsel need not object to any instruction to be given at the request of any other party or by the court on its own motion or to the refusal of any instructions requested by such party. Specific objections to instructions shall be required in motions for new trial unless made at trial. The making of objections during trial shall not preclude making additional objections to the same or other instructions in the motion for new trial. No general objection to instructions is required.
Thus, a party does not have a duty at trial to correct an erroneous and misleading instruction of his opponent in order to challenge it, even when that instruction imposes an inappropriate standard of care. Van Brunt v. Meyer, 422 S.W.2d 364, 369 [2, 3] (Mo.App.1967); Brooks v. Bernard, 236 S.W.2d 46 , 48 (Mo.App.1951). Allegations of instructional error may be preserved either by specific objection at trial or in the *761 motion for new trial. Romines v. Donald Maggi, Inc., 636 S.W.2d 130, 132 (Mo.App.1982). Under this Court’s own rules, then, defendant’s pursuit of its allegation of error in the motion for new trial was entirely permissible and cannot be invoked as a basis for excusing a fatally erroneous instruction.
Because the jury was erroneously and prejudicially instructed on the defendant’s duty of care, the judgment should be reversed and the cause should be remanded for a new trial.