# Petition — Burlington Northern Inc. v. Bair > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1238%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 464 U.S. 830 ## Text 82-2148 No. Office - Supreme Court, U.S ¢ BILED JUN 27 1983 ALEXANDER L. STEVAS. —_ IN THE Supreme Court of the United States TERM 1983 BURLINGTON NORTHERN, INC., SUCCESSOR By MERGER To St. Louis-SAN FRANCISCO RAILWAY COMPANY, Petitioner, VS. James C. Bair, Respondent. PETITION FOR WRIT OF CERTIORARI To The Missouri Supreme Court JOHN C. SHEPHERD GERALD D. Morris PauL N. VENKER SHEPHERD, SANDBERG & PHOENIX, P.C. One Mercantile Center - Suite 3000 St. Louis, Missouri 63101 314/231-3332 Counsel for Petitioner, Burlington Northern, Inc. DONALD E. ENGLE Eric A. CUNNINGHAM, JR. Law Department Burlington Northern Railroad June 27, 1983 St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477 QUESTIONS PRESENTED FOR REVIEW I. The Missouri Supreme Court in Bair v. St. Louis-San Fran- cisco Railway Company, 647 S.W.2d 507 (Mo. banc 1983), er- roneously held that federal law does not require that a ‘‘present value”’ instruction be given in an F.E.L.A. case, even though Petitioner requested and tendered one, and consequently that court has decided a federal question in conflict with this Court’s decisions, as well as those of the federal courts of appeal. II. The Missouri Supreme Court in Bair v. St. Louis-San Francisco Railway Company, 647 S.W.2d 507 (Mo. banc 1983), deprived the Petitioner of equal protection uader the law in ap- proving the exclusive use of M.A.I. 8.02, the jury instruction for damages in personal injury F.E.L.A. cases tried in the state courts of Missouri, in that the language of M.A.I. 8.02, in the setting of the Missouri instruction format, allows a jury to make an award to the plaintiff based on indirect, remote and speculative damages not directly or proximately caused by the injury plaintiff received, and this conflicts with decisions of this Court and of the federal courts of appeal. III. The Missouri Supreme Court in Bair v. St. Louis-San Francisco Railway Company, 647 S.W.2d 507 (Mo. banc 1983), has held that it is not reversible error for a trial court to exclude in an F.E.L.A. case, evidence of the non-taxability of the damage award, or to refuse a tendered jury instruction that any damage award would not be subject to income tax and therefore the Missouri Supreme Court has decided a federal question - measure of damages in an F.E.L.A. case - in a way in conflict with decisions of this Court, notably, Norfolk & Western Railway Company v. Liepelt, 444 U.S. 490, 62 L.Ed.2d 629, 100 S.Ct. 755 (1980). IV. The Missouri Supreme Court’s mandate that M.A.I. 24.01, the verdict director in F.E.L.A. cases tried in the state courts of Missouri, be used in every F.E.L.A. case, denies F.E.L.A. defendants due process of law and equal protection under the law because it does not state a specific act of negligence on the defendant's part and therefore is a roving commission for the jury, and prevents the defendant from being put on notice of the alleged negligence against which it is to de- fend and furthermore this violates the Supremacy Clause in Ar- ticle 6, Clause 2 of the Constitution of the United States because it in effect pre-empts the federal law with regard to what a pro- per instruction is. TABLE OF CONTENTS Questions Presented for Review..............00055 i po TUE ETT ECV TER CTT eC TT TEe iv Decision Petitioner Seeks To Have Reviewed.......... vii PE OUON, 6 ccc hcenecavevececedse toes l TEND cccneeccucbudedbiscevuawaper 2 POL Ul 6 sa shakaewed reece th sewan cover bewer 6 TE itinkcoeUeusdawana. cnideade ht iebnac spuie 6 SPEAR clsSe niki he Stes eseskndvceesseametns 8 ace Cray bubs pAcwek tarsi nes on ccccnads euawe 14 Paces abies ks a PaeckbasMakwoacteme aedka 17 PE Richt hauds seh shes Congres ceetrasncannee 21 Appendix: Appendix A Text of Bair v. St. Louis-San Francisco Rail- way Co., 647 S.W.2d 507 (Mo. banc RE Nb aGGl ssechapnec Kibale Gains’ A-l Appendix B Missouri Supreme Court Rule 83.08 ........ A-13 Appendix C Petitioner’s Points Relied On in the Missouri Court of Appeals and the Missouri iv Appendix D Missouri Supreme Court Rules 70.02(b) and Den ais Snleor nnd ee ORAS ev dena eee A-17 Appendix E Portion of Transcript on Appeal - Instruc- eG IE i ci'sb.ckdckdcsccateens A-18 Appendix F Trial Court’s order denying Petitioner’s mo- tion for directed verdict and motion for SE UC ahi suas ieee cease 4 abaew ne A-21 Appendix G Pertinent Paragraphs from Petitioner’s Mo- SUED PEE a Sus neuwstccvasd tes A-22 Appendix H Instructions Tendered by Petitioner and Re- fused by Trial Court ..............4.. A-27 Appendix I Committee Comment to M.A.1. 8.02 ....... A-28 TABLE OF AUTHORITIES Bair v. St. Louis-San Francisco Railway Company, 647 S.W.2d 507 (Mo. banc 1983)........... i,1,2,3,4,5,6,7,15 Beanland v. Chicago, Rock Island & Pacific Railroad Company, 480 F.2d 109 (8th Cir. 1973) .......... 6 Brown v. St. Louis Public Service Company, 421 S.W.2d BP SND TUTE WN knie Soe Uicboctanccedectes 13 Chappell v. City of Springfield, 423 S.W.2d 810 (Mo. POU a Shabticceed sch dowasscabiceuesuseawesas 13 Chesapeake & Ohio Railway Company v. Carnahan, 241 U.S. 241, 60 L.Ed. 979, 36 S.Ct. 594 (1916) ...... 10,11,12 Chesapeake & Ohio Railway Company v. Kelly, 241 U.S. 485, 60 L.Ed. 1117, 36 S.Ct. 630 (1916) .......... 6,7 Chicago, Rock Island and Pacific Railroad Company v. Lint, 217 F.2d 279 (8th Cir. 1954) .............5. 18 Crane v. Cedar Rapids & lowa City Railway Company, 395 U.S. 164, 23 L.Ed.2d 176, 89 S.Ct. 1706 (1969) 9,10 Dugo v. Pennsylvania Railroad Company, 125 F.Supp. TEENS bcc eccicd cece ccaecere 11 Duncan v. St. Louis-San Francisco Railway Company, 480 F.2d 79 (8th Cir. 1973), cert. denied, 414 U.S. 859, 38 L.Ed.2d 109, 94S.Ct. 69 (1973) .......... 7 Flanigan v. Burlington Northern, inc., 632 F.2d 880 (8th Cir. 1980), cert. denied, 450 U.S. 921, 67 L.Ed.2d ED nc vuin bet en's ontic.e'c.s.e 15,16,17 Gallick v. Baltimore & Ohio Railway Company, 372 U.S. 108, 9 L.Ed.2d 618, 83 S.Ct. 659 (1963) .......... ll Harris v. Norfolk Southern Railway, 319 F.2d 493 (4th Cir. 1963) cert. denied, 375 U.S. 985, 11 L.Ed.2d 473, 84 S.Ct. 517 (1964) ©... cece eee cee e eens 10,11 Heater v. Chesapeake & Ohio Railway Company, 497 F.2d 1243 (7th Cir. 1974), cert. denied, 419 U.S. 1013, 42 L.Ed.2d 287, 95 S.Ct. 333 (1974) ........ 7 Hite v. Western Maryland Railway, 217 F.2d 781 (4th Cir. 1954), cert. denied, 349 U.S. 960, 99 L.Ed. B2BS, 75: S.CR. GRO CIGSS) . 0. ccc ccccccccccccccee 18 Holladay v. Chicago, Burlington & Quincy Railroad Company, 255 F.Supp. 879 (S.D.lowa 1966) ..... 9,10 vi Louisville & Nashville Railroad Company v. Holloway, 246 U.S. 525, 62 L.Ed. 867, 38 S.Ct. 379 (1918) ... Marynik v. Burlington Northern Inc., 317 N.W.2d 347 NS SIE ccrsen thnk Arh 1A TR DR EOSAER ED OOS Norfolk & Western Railway Company v. Liepelt, 444 17 U.S. 490, 62 L.Ed.2d 689, 100 S.Ct. 755 (1980) . .i,5,14,15, 16,17,20 O’Byrne v. St. Louis Southwestern Railway Company, 632 F.2d 1285 (Sth Cir. 1980)........... cee eeees Pierce v. New York Central Railway Company, 257 he, Oe pe IEE» dase 0.6 pv 60nd dep hein we dace Ricketts v. Kansas City Stockyards of Maine, 484 S.W. Be Se, UNG FOTN ois ik vicki vedesccecnbeceesye Rogers v. Missouri Pacific Railroad Company, 352 U.S. 500, 1 L.Ed.2d 493, 77 S.Ct. 443 (1957) .......... Seaboard Air Line Railway v. Padgett, 236 U.S. 668, 59 L.Ed. 777, 35 S.Ct. 481 (1915)... wc ccc ceveee Shupe v. New York Central System, 339 F.2d 998 (7th Cir. 1965), cert. denied, 381 U.S. 937, 14 L.Ed.2d Fg We BR, AIRED bis vicbcccicncccsccavss Sleeman v. Chesapeake & Ohio Railway Company, 414 F.2d 305 (6th Cir. 1969) ....... 0... cee eee ee Terminal Railroad Association of St. Louis v. Fitzjohn, 165 F.2d 473 (8th Cir. 1948)...............0008. Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. aa 66 nS 5 v0 i cobs era penesebneaek step Vanskike v. A.C.F. Industries, Inc., 665 F.2d 188 (8th Cir. 1981), cert. denied, 102 S.Ct. 1632 (1982) .... Wounick v. Hysmith, 423 F.2d 873 (3d Cir. 1970)...... 16 vii ee Ges MA > evan sripsedicn hiv eb.Wepacwees 19 Missouri Supreme Court Rule 70.02............... 3,12,19,20 Missouri Supreme Court Rule 70.03 ................. 3 Missouri Approved Instruction 8.02 ....... i,4,8,9,11,12,13,14 Missouri Approved Instruction 24.01.............. 5,17,19,20 DECISION WHICH PETITIONER SEEKS TO HAVE REVIEWED Bair v. St. Louis-San Francisco Railway Company, 647 S.W.2d 507 (Mo. banc 1983). In THE Supreme Court of the United States TERM 1983 BURLINGTON NorTHERN, INC., SUCCESSOR By MERGER TO St. Louis-SAN FRANCISCO RAILWAY COMPANY, Petitioner, VS. James C. BAIR, Respondent. PETITION FOR WRIT OF CERTIORARI To The Missouri Supreme Court JURISDICTIONAL STATEMENT Petitioner Burlington Northern, Inc. (Burlington Northern, Inc. is the successor through merger of St. Louis-San Francisco Railway which was the original defendant in this suit. Hereafter, the term Petitioner will simply be used for the sake of clarity.), filed this Petition for Writ of Certiorari after the Missouri Supreme Court rendered its opinion in Bair v. St. Louis-San Francisco Railway Company, 647 S.W.2d 507 (Mo. banc 1983). The Missouri Supreme Court denied Petitioner’s Motion for Rehearing on March 29, 1983, thereby making the judgment final on that date. Petitioner has ninety days from March 29, 1983 to file its Petition for Writ of Certiorari and therefore, this Petition is timely filed. This Court’s jurisdiction is invoked pursuant to 28 U.S.C. §1257(3). The questions presented involve the unconstitutionality of certain pattern jury ay ye instructions promulgated by the Missouri Supreme Court for F.E.L.A. cases, and that court’s holdings which are contrary to decisions of this Court and the Federal Courts of Appeals. STATEMENT OF THE CASE Although the Bair opinion sets out in detail the factual ac- count of the event in question (see Appendix A), Petitioner will sketch a brief factual summary thereof. This case was tried in November of 1979. The injured railroad worker, Mr. Bair, was a thirty year-old journeyman carman when the alleged injury he sustained occurred on January 18, 1973. He was using a pneumatic jack and a pole to push out the indented ends of box- cars. The jack weighed 300 to 400 pounds and Bair was allegedly injured while moving it inside a boxcar. He brought suit under the F.E.L.A. against the St. Louis-San Francisco Railway, alleging defendant’s negligence in four specifications as follows: Defendant St. Louis-San Francisco Railway failed to provide reasonably safe methods, reasonably safe working conditions, reasonably adequate help and assistance, and reasonably safe and adequate equipment to straighten the ends of the cars. Under a verdict director which submitted that defendant failed to provide reasonably safe conditions for work, or reasonably safe methods for work (M.A.I. 24.01), the jury found for plain- tiff and awarded him $313,500 in damages. The Petitioner moved for a new trial but the trial court denied the motion. Petitioner appealed to the Court of Appeals, Eastern District, which affirmed the judgment. Subsequently, Petitioner successfully obtained transfer to the Missouri Supreme Courts pursuant to Missouri Supreme Court Rule 83.02. Rule 83.08 (See Appendix B) provides that the transfer of the case merely shifts the transcript and briefs to the Missouri Supreme Court. Therefore all points of error asserted in the Court of Appeals are automatically raised in the Supreme Court. That court also affirmed the judgment in Bair v. St. Louis-San Francisco Railway Company, 647 S.W.2d 507 (Mo. banc 1983). —e The issues raised herein are concerned with jury instructions. Under Missouri Supreme Court Rule 70.02, (see Appendix D) it is clear that Missouri Approved Instructions are mandatory and are to be used to the exclusion of any others. Under Missouri Supreme Court 70.03, a party need not object at trial to any in- structions given at the request of another party or on the court’s own motion or to the refusal of any instructions requested by such party. (See Appendix D). For purposes of clarity, each of the four instruction issues will be set out hereunder with separate headings. Present Value Instruction At the instruction conference, counsel for Petitioner tendered, and the court refused, an instruction to have the jury reduce the award to its present value. (See Appendix E, for the instruction conference transcript and see Appendix H, where this instruction is marked as Instruction A, which the trial court refused). In accordance with Missouri Supreme Court Rule 70.03, Petitioner raised in its motion for new trial the fact that it had tendered this instruction and that it was refused. (See Ap- pendix G, paragraphs 21(a) and 22). The Petitioner also there argued that to refuse to give such an instruction was erroneous because decisions of this Supreme Court and the federal law of the F.E.L.A. entitled it to such an instruction. The trial court denied the motion for new trial (see Appendix F). Petitioner then raised the issue in the Missouri Court of Appeals, Fastern District where the point was ruled against it. (See Appendix C). Subsequent to that decision, Petitioner successfully obtained transfer to the Missouri Supieme Court and there raised the issue again. That court held that it was not persuaded that federal law required a present value instruction in au F.E.L.A. case. Bair v. St. Louis-San Francisco Railway Company, 647 S.W.2d 507, at 510 [2] (Mo. banc 1983). (See Appendix A). ek ek Damages Instruction M.A.I. 8.02 is the damage instruction which the Missouri Supreme Court requires to be given in an F.E.L.A. case. At the instruction conference, Petitioner objected to this instruction, which was given in this case, as depriving it of its property without due process of law because it allowed the jury to find it liable for indirect, remote, speculative and conjectural damages. (See Appendix E). Petitioner specifically stated that this result violated its rights under the Fifth Amendment to the U.S. Con- stitution, Article 1, Section 10 and under the F.E.L.A. The Court of Appeals, Eastern District held that M.A.I. 8.02 was the exclusive damage instruction and that no other damage in- struction could be used. The Missouri Supreme Court held that M.A.I. 8.02 was sound, and was the exclusive damage instruc- tion for F.E.L.A. cases tried in the state courts of Missouri. Bair v. St. Louis-San Francisco Railway Company, 647 S.W.2d 507, at 510[3]. Moreover, Petitioner tendered an instruction designed to eliminate speculative damages, but it was refused by the trial court (see Appendix E). The Missouri Supreme Court held the instruction to be properly refused because it was not within the M.A.I. scheme, which makes M.A.I. 8.02 the ex- clusive damage instruction. Bair v. St. Louis-San Francisco Railway Company, 647 S.W.2d at 510/4]. Income Tax Instruction At the instruction conference, Petitioner tendered, and the trial court refused, an instruction to inform the jury that any award they made to plaintiff would not be taxable as income to him. (See Appendix E, and see Appendix H, for the instruction, marked as Instruction E). In its motion for new trial, Petitioner raised as error the trial court’s refusal to allow it to question plaintiff about the non-taxability of any award (See Appendix G, paragraph 11), and its refusal to submit the tendered income tax instruction on the ground that federal law clearly entitled it to have such an instruction submitted to the jury. (See Appen- ib. — a dix G, Motion for New Trial, paragraph 21(c)). Petitioner also there asserted that the refusal to give the instruction deprived it of equal protection under the Fourteenth Amendment of the United States Constitution, Article 1, Section 2 and deprived it of its property without due process of law. The Missouri Court of Appeals, Eastern District, ruled against the Petitioner on this point. On transfer to the Missouri Supreme Court, that court also ruled this point against Petitioner, stating that although Norfolk & Western Railway Company v. Liepelt, 444 U.S. 490, 62 L.Ed.2d 689, 100 S.Ct. 755 (1980) required such an instruc- tion, the error was not prejudicial to Petitioner in this case. Bair v. St. Louis-San Francisco Railway Company, 647 S.W.2d at $12[10] (see Appendix A). Verdict Director - M.A.I. 24.01 In its motion for new trial, Petitioner objected to the trial court’s giving M.A.I. 24.01, which is the verdict director in F.E.L.A. cases tried in Missouri state courts, on the grounds that it deprived the Petitioner of its rights under the Fourteenth and Fifth Amendments of the United States Constitution, Arti- cle 1, Section 2, and the Missouri Constitution, Article 1, Sec- tion 10, and its rights under federal law in that the instruction does not require the plaintiff to set out a specific act or acts of negligence which he claims were the cause of his injury. Rather, M.A.I. 24.01 merely requires the jury to make a finding of a general allegation of negligence (see Appendix G, Motion for New Trial, paragraph 19). The trial court denied the motion for new trial. The Missouri Court of Appeals, Eastern District, rul- ed the point against Petitioner and on transfer, the Missouri Supreme Court reviewed the point and ruled it against Peti- tioner, finding that M.A.I. 24.01 is proper. Bair v. St. Louis- San Francisco Railway, 647 S.W .2d at 510 [5] (see Appendix A). ain ARGUMENT 1. The Missouri Supreme Court In Bair v. St. Louis-San Fran- cisco Railway Company, 647 S.W.2d 507 (Mo. banc 1983), Er- roneously Held That Federal Law Does Not Require That A ‘Present Value’’ Instruction Be Given In An F.E.L.A. Case, Even Though Petitioner Requested And Tendered One, And Consequently That Court Has Decided A Federal Question In Conflict With This Court’s Decisions, As Well As Those Of The Federal Courts Of Appeal. In 1916, this Court held that an F.E.L.A. defendant has a right, as a matter of federal law, to an instruction telling the jury that they are to award damages on the basis of present value only. Chesapeake & Ohio Railway Company v. Kelly, 241 U.S. 485, 491, 36 S.Ct. 630, 60 L.Ed. 1117 (1916). The theory underlying this is the plaintiff’s duty to mitigate the amount of his damages and in these circumstances he could certainly do so by putting the money in an interest bearing account. /d., at 489. Kelly has not been overruled, and has been cited in countless cases dealing with the present value instruction issue. Moreover, Petitioner has yet to find a case which affirms a verdict where a proper present value instruction was requested and refused and where the jury rendered its verdict without any present value instruc- tion being given. For example, in Beanland v. Chicago, Rock Island & Pacific Railroad Company, 480 F.2d 109 (8th Cir. 1973), the Eighth Circuit Court of Appeals, citing extensive authority, held that failure to give a present value instruction in an F.E.L.A. case was prejudicial error. 480 F.2d, at 115. The Beanland court relied directly on Kelly, supra, in reversing the case because no present value instruction of any kind was given. 480 F.2d, at 114. Beanland also cited Sleeman v. Chesapeake & Ohio Railway Company, 414 F.2d 305 (6th Cir. 1969), where no present value instruction was given and the court remanded the case for a recomputation of the damages based on the Kelly ‘“‘present worth formula.’’ 480 F.2d, at 115. Nor does there a need by any intricate formula submitted to the jury to aid them in arriving at present value - they can properly apply the rule upon being told that the award should be only money value. Duncan v. St. Louis-San Francisco Railway Company, 480 F.2d 79, 87 (8th Cir. 1973), cert. denied, 414 U.S. 859, 38 L.Ed.2d. 109, 94 S.Ct. 69 (1973). Heater v. Chesapeake & Ohio Railway Company, 497 F.2d 1243 (7th Cir. 1974), cert. denied, 419 U.S. 1013, 42 L.Ed. 287, 95 S.Ct. 333 (1974). In denying Petitioner’s claim of error of the trial court’s refusal to give the tendered present value instruction, the Missouri Supreme Court made clear that its position is that the M.A.1. scheme or system does not allow for a present value in- struction and therefore Missouri juries cannot be instructed on the present value issue. Bair v. St. Louis-San Francisco Railway Company, 647 S.W.2d at 510 [2] (see Appendix A). Given that the unanimous weight of authority is that if requested, the pres- ent value instruction must be given, this statement is clearly con- trary to opinions of this Court, notably that in Kelly. Moreover, the instruction tendered was adequate and accep- table under Kelly, because it would merely have informed the jury as follows: If you find in favor of plaintiff and decide to make an award for any loss of earnings in the future, you must take into account the fact that the money awarded by you is be- ing received all at one time instead of over a period of time extending into the future and that plaintiff will have the use of this money in a lump sum. You must therefore determine the present value or present worth of the money which you award for such future loss. (This was Instruction No. A tendered by Petitioner to the trial court, but refused by that court. See Appendix H.) The instruc- tion is short and straightforward and embodies the concept of mitigation of damages articulated in Chesapeake & Ohio Railway Company v. Kelly, supra. Therefore, it would have ee been proper to give this instruction on present value and refusal of it was prejudicial error. Cf. Louisville & Nashville Railroad Company v. Holloway, 246 U.S. 525, 62 L.Ed. 867, 38 S.Ct. 379 (1918) (tendered present value instruction, which included a 6% interest rate and a 28.62 year life expectancy of the dece- dent, was held properly refused because of the specific formula given.) Petitioner tendered a proper present value instruction, had it refused by the trial court, objected to that refusal, and has prop- erly preserved its objection up through the appellate process to this Court. This point of error involves a fixed, substutive right for F.E.L.A. defendants under federal law and should not be resolved against Petitoner merely because the State of Missouri refuses to follow controlling federal law. Therefore, Petitioner prays this Court to allow the Writ of Certiorari to issue on this point of error. II. The Missouri Supreme Court In Bair v. St. Louis-San Francisco Railway Company, 647 S.W.2d 507 (Mo. Banc 1983), Deprived The Petitioner Of Equal Protection Under The Law In Approving The Exclusive Use Of M.A.I. 8.02, The Jury In- struction For Damages In Personal Injury F.E.L.A. Cases Tried In The State Courts Of Missouri, In That The Language Of M.A.I. 8.02, In The Setting Of The Missouri Instruction For- mat, Allows A Jury To Make An Award To The Plaintiff Based On Indirect, Remote And Speculative Damages Not Directly Or Proximately Caused By The Injury Plaintiff Received, And This Conflicts With Decisions Of This Court And Of The Federal Courts Of Appeal. In the case at bar, the trial court gave the then-current M.A.I. (Missouri Approved Instruction) 8.02 (modified for this case), which was Instruction Number 7, which provides as follows: If you find the issues in favor of plaintiff, then you must award plaintiff such sum as you believe will fairly and justly compensate plaintiff for any damages you believe he sus- << an tained and is reasonably certain to sustain in the future as a result of the occurrence mentioned in the evidence. If you find plaintiff contributorily negligent as submit- ted in Instruction No. 6, then you must diminish the sum in proportion to the amount of the negligence attributable to plaintiff. The Committee’s Comment to M.A.1. 8.02 states that the in- struction is the same as the ordinary negligence damage instruc- tion (M.A.I. 4.01) except that the word ‘‘direct’’ has been removed as a modifier of ‘‘result.’’ This was done, the commit- tee explains, to comport with federal substantive law of the F.E.L.A. (The Committee Comment is set out in full in Appen- dix I). This action by the Missouri Supreme Court shows that it is er- roneously blurring together the two separate issues of (1) an F.E.L.A. employer’s threshhold liability for injuries sustained and (2) the damages [directly] caused by the injury. It is true that the F.E.L.A. alters common law negligence for the purpose of establishing an F.E.L.A. employer’s liability to a question of whether any negligent act by the employer played a part in the employee’s injury. Crane v. Cedar Rapids & I. C. Railway Company, 395 U.S. 164 (1969); Rogers v. Missouri Pacific Railroad Company, 352 U.S. 500, 506-507 (1957). However, this statutorily created standard of negligence is designed only to aid the F.E.L.A. plaintiff on the issue of liability. Certainly, a plaintiff is entitled only to damages which he can prove were directly or proximately caused by the injury for which he is su- ing. Holladay v. Chicago, Burlington & Quincy Railroad Com- pany, 255 F.Supp. 879, 887 (D.C.lowa 1966). This Court has shown that its members clearly perceive the distinction between these two aspects of this issue; in Rogers v. Missouri Pacific Railroad Company, 352 U.S. 500, 506-507, the court said: [T}he test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. (Footnote omit- ted). Rogers v. Missouri Pacific Railroad Company, 352 U.S. 500, 1 L.Ed.2d 493, 77 S.Ct. 443, (1957). The soundness of the pro- position that proximate cause is still required between the injury sued for and the alleged damages almost too obvious to require citation. Many cases have held it applies in F.E.L.A. cases. E.g., Chesapeake & Ohio Railway v. Carnahan, 241 U.S. 241, 244-245, 60 L.Ed. 979, 36 S.Ct. 594 (1916); Shupe v. New York Central System, 339 F.2d 998 (7th Cir. 1965) cert. denied, 381 U.S. 937, 14 L.Ed.2d 701, 85 S.Ct. 1769 (1965); Harris v. Nor- folk Southern Railway, 319 F.2d 493 (4th Cir. 1963) cert. denied, 375 U.S. 985, 11 L.Ed.2d. 473, 84 S.Ct. 517 (1964); Holladay v. Chicago, Burlington & Quincy Railroad Company, 255 F.Supp. 879, 887 (D.C.lowa 1966). From the authorities cited in the Committee Comment to M.A.I. 8.02 it seems the Missouri Supreme Court is confused as to the extent of the holdings in Rogers v. Missouri Pacific Railroad Company, supra, and Crane v . Cedar Rapids & lowa City Railway Company, supra. The Missouri Supreme Court apparently believes those cases go so far as to alter the tradi- tionally required, direct causal connection between injury and actually claimed damage. This is an erroneous statement of the law in F.E.L.A. cases for at least one of two reasons - either (1) the F.E.L.A. does not affect state substantive law on the issue of required causal connection between injuries sued for and damages flowing therefrom or (2) federal law controls the issue, becuase it is something which bears on an F.E.L.A. plaintiff's right to recover, and it requires direct or proximate cause be- tween the injury and the damages claimed. There is no doubt that the standard of negligence has been the most frequently litigated issue in F.E.L.A. law. E.g., Crane v. Cedar Rapids & I. R. Company, supra; Rogers v. Missouri Pacific Railroad Company, supra. The simple fact is, however, that the issue of negligence to impose liability for injury and the issue of damages resulting from that injury are two different things. Although the F.E.L.A. has changed the former, it has not changed the latter. Therefore, even under the F.E.L.A., a plaintiff must show direct or proximate cause between the in- jury he sustained and the damages he is claiming as a result of the injury. E.g., Shupe v. New York Central System, 339 F.2d 998 (7th Cir. 1965) cert. denied, 381 U.S. 937, 14 L.Ed.2d. 701, 85 S.Ct. 1769 (1965); Harris v. Norfolk Southern Railway Com- pany, 319 F.2d 493, 495-496 (4th Cir. 1963), cert. denied, 84 S.Ct. 517, 375 U.S. 985, 11 L.Ed.2d 473, (1964); Dugo v. Penn- sylvania Railroad Company, 125 F.Supp. 934 (D.C.Penn. 1954). This Court itself has so stated. Chesapeake and Ohio Railway Company v. Carnahan 241 U.S. 241, 244-245, 60 L.Ed. 979, 36 S.Ct. 594 (1916). Moreover, this proposition is not uni- que to federal law but rather is one of the cornerstones of the law of torts, unchanged by the F.E.L.A. Most all jurisdictions realistically accommodate the prox- imate cause issue for damages. Some utilize separate instruc- tions on causation and/or separate instructions on each element of damage. E.g., see the Illinois Pattern Jury Instructions - Civil _ (2d Ed. 1971) Prior to the M.A.I. system in Missouri, the damage instruction could at least specify each element of damage proper for the jury’s consideration. E.g., Pierce v. New York Central Railway Company, 257 S.W.2d 84, 89 [8,9] (Mo. 1953). Some jurisdictions use special verdicts or interrogatories for the jury. E.g., Gallick v. Baltimore & Ohio Railway Com- pany, 372 U.S. 108, 9 L.Ed.2d 618, 83 S.Ct. 659 (1963). Such approaches limit the jury to considering only proper elements of damage when determining an award. Any of these approaches would be better than that which the State of Missouri has in its M.A.I1. In the Missouri Approved Instruction scheme, the damage in- struction for F.E.L.A. cases is M.A.I. 8.02 which, as pointed i out above, does not require that plaintiff's damages be directly or proximately caused by the injury to plaintiff. Moreover, M.A.I. 8.02 is the only damage instruction the Missouri Supreme Court will allow to be given in an F.E.L.A. case tried in a state court of Missouri. (See Rule 70.02(b), Appendix D). It in no way instructs the jury what elements of damage may be properly considered. The repercussions of the format Missouri uses to instruct on damages cannot be ignored as procedural (and thus governed by state law). The format utilized is procedural, but the Missouri Supreme Court’s position that federal law does not require that damages directly or proximately result from the injury is a misstatement of substantive federal law as to damages under the F.E.L.A. This court has stated that such a causal relation must exist. See Chesapeake & Ohio Railway Company v. Carnahan, 241 U.S. 241, 244-245, 60 L.Ed. 979, (1916). This erroneous declaration of the federal law by the highest court of a state cer- tainly constitutes grounds for allowing a writ of certiorari to issue. Seaboard Air Line Railway v. Padgett, 236 U.S. 668, 35 S.Ct. 41, 59 L.Ed. 777 (1915). Moreover, in the legal philosophy of the State of Missouri, the absence of the adjective ‘‘direct’’ in a damage instruction is prejudicially erroneous because it allows a jury to speculate and consider damage indirectly caused. To this effect, the Missouri Supreme Court has stated: The deletion of the word ‘‘direct’’ as a modifier of **result’’ changes the meaning of the instruction. Damages sustained as a result of an occurrence would include all such damages, whether resulting directly or indirectly. Only if the word ‘‘direct’’ is kept in the instruction is the jury told that the damages which it may award must be the direct result of the occurrence. The word ‘‘direct’’ adds a limiting factor not otherwise included. Brown vy. St. Louis Public Service Company, 421 S.W.2d 255, 257 (Mo. banc }967): see also, Chappell v. City of Springfield, 423 S.W.2d 810, 812 (Mo. 1968) (citing Brown, supra). Therefore, as the Missouri Supreme Court sees it, in all except F.E.L.A. cases, failure to use the adjective ‘‘direct’’ to modify ‘‘result’’ in instructing a jury on the proper scope of damages, is to allow that jury to consider elements of damage not directly or proximately resulting from plaintiff’s injury which was caused by the defendant’s acts. Yet the Missouri Supreme Court finds the omission of the word ‘‘direct’’ is not only proper, but re- quired, by federal law when instructing the jury on damages in an F.E.L.A. case. There are at least two substantial and injurious ramifications of the present language of M.A.I. 8.02. First, an F.E.L.A. plaintiff’s burden of proof on damages is altered by making it less than the burden intended by Congress and less than it has been interpreted to be by this Court. Second, F.E.L.A. defen- dants are erroneously subjected to a jury’s propensity to speculate and the instruction permits them to make awards on the basis of damages not proximately caused by the injury for which plaintiff seeks recovery. Yet another prejudice is occuring because although the per- sonal injury defendants in F.E.L.A. cases are subjected to M.A.I. 8.02, which does not limit damages to those directly resulting from the injury, defendants in wrongful death F.E.L.A. cases are not. M.A.I. 8.01, which is the damage in- struction in F.E.L.A. wrongful death cases, provides in perti- nent part as follows: 8.01 Damages - Death of Employee under F.E.L.A. If you find in favor of plaintiff, then you must award plaintiff such sum as you believe will fairly and justly com- pensate (list the beneficiary; i.e., the widow, minor children, parents, etc.). For (her, his, their) losses which can reasonably be measured in money which you believe any 2 acs (she, he, they) sustained as a direct result of the death of (name of decedent) [and if you believe decedent endured pain and suffering directly resulting from his injuries then in addition you must add to such sum an amount that would have fairly and justly compensated decedent for such pain and suffering.]. . . (Footnotes omitted) (em- phasis added). | There is no reason in case law or logic to distinguish the re- quisite causal connection for damages in an F.E.L.A. personal injury case from those in an F.E.L.A. wrongful death case. Fur- thermore, since the question is one of federal law, personal in- jury F.E.L.A. defendants are being denied equal protection under the law by the State of Missouri through its Supreme Court. As a practical matter, comparison of M.A.I. 8.01 and 8.02 shows that the Missouri Supreme Court misunderstands the F.E.L.A. on the issue of the required causal connection be- tween the injury and damage claimed to result therefrom. Peti- tioner asserts that this misunderstanding denies its rights under federal law and discriminates unconstitutionally between per- sonal injury F.E.L.A. defendants and wrongful death F.E.L.A. defendants. II]. The Missouri Supreme Court In Bair v. St. Louis-San Francisco Railway Company, 647 S.W.24 507 (Mo. banc 1983), Has Held That It Is Not Reversible Error For A Trial Court To Exclude In An F.E.L.A. Case, Evidence Of The Non-Taxability Of The Damage Award, Or To Refuse A Tendered Jury In- struction That Any Damage Award Would Not Be Subject To Income Tax And Therefore The Missouri Supreme Court Has Decided A Federal Question -Measure Of Damages In An F.E.L.A. Case - In A Way In Conflict With Decisions Of This Court, Notably, Norfolk & Western Railway Company v. Liepelt, 444 U.S. 490 62 L.Ed.2d 629, 100 S.Ct. 755 (1980). Since this Court’s decision in Norfolk & Western Railway Company v. Liepelt, 444 U.S. 490 62 L.Ed.2d 689, 100 S.Ct. 755 (1980), both state and federal courts have been limiting, in- deed cutting back, on its holding. In Liepe/t, the Court was faced with a case where Norfolk and Western Railway Company, an F.E.L.A. defendant, attempted to introduce evidence on, and attempted to instruct the jury that, the damage award to plain- tiff would not be subject to income tax. This court held that the measure of damages in an F.E.L.A. action is federal in character, even if the action is brought in state court. Norfolk & Western Railway Company v. Liepelt, 444 U.S., at 493, 62 L.Ed.2d, at 693. Rejecting the notion that there is risk of con- fusing the jury with ‘‘income tax’’ evidence and a like instruc- tion, this court held it was error to refuse the request for the in- struction. Jd., at 498. Therefore, the Court clearly and unequivocally established an F.E.L.A. defendant’s right to introduce evidence on the non- taxability of an award and the right to an ‘‘income tax’”’ instruc- tion to the jury. In spite of this controlling decision, the Missouri Supreme Court, in the Bair case below, has held that the trial court’s refusal to allow the introduction of evidence on the income tax issue and its refusal of a tendered income tax in- struction was not prejudicial error, and therefore no reversal or retrial was required. In so doing, the Missouri Supreme Court relied on Flanigan v. Burlington Northern Inc., 632 F.2d 880 (8th Cir. 1980), cert. denied 450 U.S. 921, 101 S.Ct. 1370, 67 L.Ed.2d 349 (1981), for the proposition that the size of the ver- dict did not show prejudice had occurred in the absence of the ‘income tax’’ instruction. Bair v. St. Louis-San Francisco Railway Company, 647 S.W.2d at 512. A close reading of Flanigan shows, however, that it distinguished itself from Liepelt as follows: The Supreme Court found in Liepeit the failure to give the cautionary instruction on the non-taxation of the award was error. However, the court also found error in failing to allow the defendant railroad to prove through its economist the projected net earnings after taxes. On this = a combination of error, the court found the error to be pre- judicial requiring a new trial. (emphasis added) Flanigan v. Burlington Northern Inc., 632 F.2d at 889. The Missouri Supreme Court’s statement in Bair that the size of the jury verdict may be employed to determine whether pre- judice has occurred results in the ultimate whipsaw to a litigant who, like Petitioner herein, as dutifully asserted its rights under federal law and attempted to introduce evidence and submit an instruction on the income tax issue. This Court’s observations in Liepelt about the size the verdict illustrates its position that the instruction, if requested, should be given and if not given, should result in a reversal of the case. It is surely not fanciful to suppose that the jury erroneous- ly believed that a large portion of the award would be payable to the Federal Government in taxes and that therefore it improperly inflated the recovery. Whether or not this speculation is accurate, we agree with Petitioner that, as Judge Ely wrote for the Ninth Circuit, {t}o put the matter simply, giving the instruction can do no harm, and it certainly can help by preventing the jury from inflating the award and thus over- compensating the plaintiff on the basis of an er- roneous assumption that the judgment will be tax- able. (Citations omitted) (emphasis added). Norfolk & Western Railway Company v. Liepelt, 444 U.S. at 497-498; O'Byrne v. St. Louis Southwestern Railway Company, 632 F.2d 1285, 1287 (Sth Cir. 1980), also interprets Liepel/t this way. The language in Liepelt requires a reversal where, as in this case, the trial court has denied an F.E.L.A. defendant its right under federal law to introduce evidence and has refused a tendered jury instruction on the ‘income tax’’ issue. To allow this issue to fall here and go no further will be to emasculate i Liepelt because every trial court will know that it can, without fear of reversal, exclude evidence and deny an instruction on the non-taxability of damages. This court should follow through with the mandate of Liepe/t. The case of Petitioner herein is ge- nuinely within the Liepe/t decision' and therefore, this court should allow the Writ of Certiorari to issue on this ground. IV. The Missouri Supreme Court's Mandate That M.A.I. 24.01, The Verdict Director In F.E.L.A. Cases Tried In The State Courts Of Missouri, Be Used In Every F.E.L.A. Case, Denies F.E.L.A. Defendants Due Process Of Law And Equal Protection Under The Law Because It Does Not State A Specific Act Of Negligence On The Defendant's Part And Therefore Is A Roving Commission For The Jury, And Prevents The Defendant From Being Put On Notice Of The Alleged Negligence Against Which It Is To Defend And Fur- thermore This Violates The Supremacy Clause In Article 6, Clause 2 Of The Constitution Of The United States Because It In Effect Pre-empts The Federal Law With Regard To What A Proper Instruction Is. The trial court in this case submitted to the jury, M.A.I. 24.01 (modified for this case) as follows: Your verdict must be for plaintiff if you believe: First, defendant either failed to provide: reasonably safe conditions for work, or reasonably safe methods of work, and ' Cf. Vanskike v. ACF Industries, Inc., 665 F.2d 188 (8th Cir. 1981), where no income tax instruction was actually tendered and therefore the court reviewed for plain error and did not reverse. 665 F.2d at 206, n. 14; Flanigan v. Burlington Northern Inc., 632 F.2d 880 (8th Cir. 1980), has already been distinguished in the text; Marynik v. Burlington Northern Inc., 317 N.W.2d 347 (Minn. 1982), where the court employed the de minimis exception referred to in Norfolk and Western Railway Company v. Liepelt, 444 U.S. at 494, n. 7, 62 L.Ed.2d. at 694, n. 7, in order to avoid reversing in the judgment. Second, defendant in any one or more of the respects sub- mitted in paragraph first was negligent, and Third, such negligence resulted in whole or in part in injury to plaintiff. Quite simply, Petitioner’s argument against the validity of this instruction is that it is vague and allows the jury to arrive at a general conclusion about the fact pattern of the case without having determined whether the facts of the case are as plantiff argues them to be and therefore warrant recovery. An F.E.L.A. defendant in Missouri state courts cannot present an adequate defense against such an instruction because it is forced to de- fend against any and every issue of negligence made by plaintiff at any time during trial. Moreover, without being forced to agree on whether a specific act or acts by the F.E.L.A. defen- dant was negligent and caused plaintiff’s injury, a jury is more likely to find against the railroad. All Petitioner seeks is to have an F.E.L.A. verdict directing instruction that comports with the instruction philosophy of the Missouri Supreme Court in all other cases and with that of federal courts. This is accomplished by setting out specifically for the jury what plaintiff’s theory of recovery is, under the evidence of the case. Such instructions are the rule, rather than the exception. E.g., Hite v. Western Maryland Railway, 217 F.2d 781, 782 (4th Cir. 1954) cert. denied, 349 U.S. 360, 99 L.Ed. 1283, 75 S.Ct. 890 (1955); Chicago, Rock Island and Pacific Railroad Company v. Lint, 217 F.2d 279, 286-287 (8th Cir. 1954); Terminal Railroad Association of St. Louis v. Fitz- john, 165 F.2d 473, 480 [12, 13] (8th Cir. 1948) (jury charge stated that plaintiff’s theory was that he was injured as a result of having been knocked from a car by a standard placed too close to the tracks and therefore defendant was negligent for failing to provide a reasonably safe place to work.) Petitioner realizes that as a general rule, questions regarding jury instructions are procedural and solely of state concern —19— because they involve how the law is submitted to the jury. However, where as here, the instructions infringe upon the substantive right of a party to present an adequate defense, the issue is one of substantive federal law in the form of due pro- cess. Wounick v. Hysmith, 423 F.2d 873 (3d Cir. 1970). Fur- thermore, if the matter is solely for the State of Missouri to con- trol, then defendants in F.E.L.A. actions are being discriminated against by the Missouri Supreme Court’s mandate for the exclusive use of M.A.I. 24.01, because under Missouri law, non-F.E.L.A. defendants have the right to have specific acts of negligence set out in the verdict director. Otherwise it would be a roving commission for the jury. Ricketts v. Kansas City Stockyards of Maine, 484 S.W.2d 216, 222 (Mo. banc 1972) (Court states that it is reversible error to use M.A.I. 24.01 in ‘‘usual’’ negligence cases because it does not submit ‘“‘any condition as not being reasonably safe.’’, at 222). Somehow, the Missouri Supreme Court has gotten the idea that the lower, statutorily created, causation standard in the F.E.L.A. means that plaintiff need not submit to the jury his theory of the case with specific facts he alleges are true and which point to defen- dant’s negligence being a cause of his injury. This is simply a non-sequitur and results in F.E.L.A. defendants being denied due process and equal protection under federal law. Because Missouri Supreme Court Rule 70.02(b) requires that an M.A.I. instruction (here 24.01) be used to the exclusion of all others it is quite apparent that the State of Missouri is bringing about this result. Petitioner further submits that rule 70.02(b) and M.A.I. 24.01 violate its rights under Article 6, Clause 2 of the Constitu- tion of the United States, the supremacy clause. Under the F.E.L.A., 45 U.S.C. §51, defendants are liable only for negligence. The jury is mandated to decide whether given acts or omissions are negligent. What factual situations give rise to a permissible finding of negligence and even questions of damages therefrom are federal questions governed by federal law. Nor- oe as JSolk and Western Railway Company v. Liepelt, 444 U.S. 490 100 S.Ct. 755, 62 L.Ed.2d 689 (1980); Urie v. Thompson 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949). By virtue of Rule 70.02(b) and M.A.1. 24.01, Missouri has pre-empted the federal law and, in effect, permitted the jury to decide that an F.E.L.A. defendant is negligent without requiring any finding that any particula: act or omission, or combination thereof on the part of any such defendant constitutes negligence. Likewise, plain- tiffs are relieved of the necessity of proving a duty, breach thereof, and scienter with regard to any particular cir- cumstances. This has the practical effect of taking away defen- dant’s rights granted by the F.E.L.A. contrary to the Supremacy Clause above cited. This Court’s Writ of Certiorari should be allowed to issue to the Missouri Supreme Court because this case involves the right of a defendant to be shielded from responsibility under the F.E.L.A. which under that staiute is not properly placed upon it. Seaboard Air Line Railway v. Padgett, 236 U.S. 668, 35 S.Ct. 41, 59 L.Ed. 777 (1915). a, ee CONCLUSION For the foregoing reasons, this Petition for Writ of Certiorari should be allowed to issue from this Court to the Supreme Court of the State of Missouri. Respectfully submitted, John C. Shepherd Gerald D. Morris Paul N. Venker Shepherd, Sandberg & Phoenix,P.C. One Mercantile Center - Suite 3000 St. Louis, Missouri 63101 314/231-3332 Counsel for Petitioner, Burlington Northern, Inc. Donald E. Engle Eric A. Cunningham, Jr. Law Department Burlington Northern Railroad CERTIFICATE OF SERVICE I hereby certify that three true copies of the foregoing Peti- tion for Writ of Certiorari and Appendices A through I were hand delivered to the office of C. Marshall Friedman, Attorney for Respondent, 818 Olive Street, St. Louis, Missouri, by the undersigned this 27th day of June, 1983. GERALD D. MORRIS APPENDIX — oe APPENDIX A James C. Bair, Plaintiff-Respondent, v. St. Louis-San Francisco Railway Company, Defendant-Appellant. No. 64246. SUPREME COURT OF MISSOURI, EN BANC. Feb. 23, 1983. On Rehearing March 29, 1983. BLACKMAR, Judge. Respondent James Bair brought suit for damages in the Cir- cuit Court of the City of St. Louis pursuant to the Federal Employers’ Liability Act against appellant St. Louis-San Fran- cisco Railway Company (Frisco). Bair claimed that he had sus- tained injuries while working as a journeyman carman for Frisco. The jury returned a verdict in Bair’s favor for $313,500, and judgment was entered on the verdict. The Missouri Court of Appeals, Eastern District, affirmed. We transferred the case, primarily to resolve the question of retroactivity of a decision of the Supreme Court of the United States regarding income tax effects of damage awards in F.E.L.A. cases. We decide the case as on original appeal, and affirm the judgment. We make use of substantial portions of the opinion of Judge Simon, without quotation marks. On appeal Frisco raises ten points, alleging that the trial court erred in: (1) refusing to allow Frisco to ask Bair on cross- examination if he was aware that any recovery on his claim would not be subject to federal income tax; (2) refusing to in- = oe struct the jury that Bair would not have to pay federal income tax on any jury award he might receive; (3) refusing to submit to the jury a ‘‘present value”’ instruction; (4) submitting to the jury MAI No. 8.02 as the damage instruction; (5) refusing to submit to the jury an instruction pertaining to speculative damages; (6) submitting to the jury MAI No. 24.01 as the verdict director; (7) failing to grant a mistrial after Bair testified that he had a family to support; (8) failing to grant a mistrial after Bair’s attorney made unfavorable comments about Frisco’s examining physi- cian; (9) failing to grant a new trial after Bair’s attorney made unfavorable comments during his closing argument about Frisco’s attorney; (10) failing to grant a new trial on the ground that the damages were excessive. We believe that all of appellant’s points except (1), (2) and (10) were appropriately disposed of in the Court of Appeals opin- ion. At the time Bair sustained his injuries he was 30 years old. He had started working for Frisco in its Springfield, Missouri train yard after graduating from high school in 1960. Bair began as a carman apprentice; he was promoted to the position of journeyman carman approximately four years later. Carmen are skilled workers who build, repair, and service various types of railroad cars and equipment. Bair testified that during the course of his employment with Frisco he had learned every phase of the carman’s craft. The evidence adduced at trial showed that on January 18, 1973 Bair was working in Frisco’s freight car shop repairing damaged freight cars. Bair and several co-workers were assigned the job of working on a damaged boxcar in the process of being rebuilt. One end of the boxcar had being pushed inward one to two feet. Bair’s supervisor, Michael Beavers, told the workers to straighten the end using a large air-powered jack and pole. This method of straightening the end required that one of the a = yen workers go inside the boxcar with the jack and a six to ten foot pole. Basically, the idea was to use the jack to push the pole against the indentations on the end of the boxcar. The jack, weighing between three and four hundred pounds, had wheels on its bottom but becuase it was wider than the centersill, it had to be positioned on its side by hand. Once the jack was in place it would be tied to the centersill and braced so that the jack would not move when pressure 4vas applied to the indentations. As the pole was pushed against the end of the boxcar it was necessary to reposition the jack. “ Bair went into the boxcar with the three to four hundred pound jack and a six to ten foot oak pole. Both the boxcar’s flooring and the steel ‘‘stringers’’ on which the flooring sits had been removed. The only surface on which Bair could stand in- side the boxcar was the centersill, running lengthwise down the middle of the car. The centersili is approximately fourteen or fifteen inches wide. There is a two inch flange on each side of the centersill approximately twelve or thirteen inches below the centersill’s surface. Before Bair went inside the boxcar the workers requested some plywood be placed in the car so that there would be more room to stand. The request was denied. As a result there was room for only one man inside the car to reposition the jack. Bair had moved the jack twice before he was injured. At trial Bair described his attempt to move the jack for a third time: {ajs I was tugging on the jack—of course, it’s a very strenous (sic) process, just brute strength—and I pulled on it and something popped or just—I got a severe pain in my back. It just stopped me. And I just let go and got up and crawled. I couldn’t get up. The pain was so severe that it scared me. Bair was first taken to the shop’s office then to the office of Dr. Carl Schroff, the Frisco doctor. Dr. Schroff examined Bair and took X-rays of Bair’s lower back. Dr. Schroff gave Bair a a muscle relaxer and told him to return the next day, Friday. When he returned to Dr. Schroff’s office, Bair was still in pain. Dr. Schroff advised Bair to rest over the weekend and told him that he could return to light duty on Monday. Bair did return to work, but the pain in his back continued. Soon after Bair returned to work he transferred to the air brake shop because it required less heavy lifting. Bair’s back, however, did not improve; the pain continued. During the next two years Bair went to several doctors. In October of 1975 Bair transferred again, taking a job as an inspector in the train yards. Two days later on October 29, 1975, Bair’s doctor put him in the hospital for 11 days for tests and therapy. Bair has not returned to work for Frisco. In January of 1975 Bair again entered the hospital for more treatment. Bair suffers from a degenerative disc disease. Bair’s present doctor, an orthopedic surgeon, Dr. Ben Harmon, testified by deposition that Bair was not capable of returning to work. Although Bair tried to return to work with his father as a painter and remodeler, he was unable to perform due to his back problems. Bair stated that in 1976 he had no earnings. In 1977 he earned $1,700. In 1978 Bair obtained a real estate license and earned $4,500. {1} Several of the points advanced in the brief and renewed here relate to errors in instruction, in which it is argued that MAI does not furnish an appropriate guide. We are always will- ing to entertain claims of legal error in MAI instructions, in- cluding, in F.E.L.A. cases, claims that instructions are contrary to governing federal law. Most of the points here advanced, however, were disposed of in our opinion in Dunn v. St. Louis- San Francisco Ry. Co., 621 S.W.2d 245 (Mo. banc 1981), cert. denied, 454 U.S. 1145, 102 S.Ct. 1007, 71 L.Ed.2d 298 (1982). We adhere to that opinion, and to the general MAI plan of in- struction, which seeks to simplify and balance the instruction process. There are instructions which are abstractly correct in law and which are commonly given in some jurisdictions, but which are not included in the MAI plan. The absence of an in- struction does not prevent counsel from introducing evidence or making argument. on [2] Frisco’s third point is that the trial judge erred in refusing to submit to the jury a present value instruction. In Dunn, at p. 253, we dealt with a very similar issue and held that a present value instruction was not appropriate under MAI. We are not persuaded that federal law requires the instruction. Frisco’s third point is denied. [3] Frisco’s fourth point is that the trial court erred in submit- ting MAI No. 8.02 as the damage instruction. Frisco assigns two reasons for its contention. First, it contends that the instruction failed to limit the jury’s consideration to the occurrence of January 18, 1973. Second, Frisco contends MAI No. 8.02 misstates the applicable law of damages for F.E.L.A. cases. Neither of these contentions has merit. Under MAI when there is more than one occurrence, the jury must be instructed to consider only the occurrence for which defendant is liable. In this case Frisco contends the trial court erred because the damage instruction did not limit the jury’s consideration to the occurrence of January 18, 1973. There was some evidence at trial that Bair had sustained several minor in- juries prior to that date. However, the extensive medical testimony indicated that the accident sustained January 18, 1973 caused the complained of injuries to Bair’s back. See Wein- bauer v. Berberich, 610 S.W.2d 674, 680 (Mo.App. 1980); Gant v. Scott, 419 S.W.2d 262 (Mo.App.1967). Thus, the trial court was not required to modify, nor was Frisco prejudiced by, the damage instruction. The trial court correctly submitted MAI No. 8.02. This instruction is mandatory to the exclusion of all others under the MAI. Griffith v. St. Louis-San Francisco Ry. Co., 559 S.W.2d 278, 280 (Mo.App.1977), cert. denied, 4%6 U.S. 926, 98 S.Ct. 2821, 56 L.Ed.2d 769 (1978). We do not believe that the jury was confused as to the incident involved. [4] Frisco’s fifth point is that the trial court erred in refusing to submit a speculative damage instruction. Frisco’s tendered instruction was not contained in MAI and ‘‘[aJs such it [was] many 2 es contrary to the scheme of MAI and presumptively prejudicial.’’ McBee v. Schlupbach, 529 S.W.2d 435, 439 (Mo.App.1975). See Dunn, supra at 253. [5] Frisco’s sixth point is that the trial court erred in submit- ting the verdict director, MAI No. 24.01. The submission of MAI No. 24.01 was proper, and in fact required under Supreme Court Rule No. 70.02(b). See White v. St. Louis-San Francisco Ry. Co., 602 S.W.2d 748, 754 (Mo.App.1980). See also the ex- tensive Committee Comment to MAI No. 24.01. This point is denied. [6] Frisco’s seventh point on appeal is that the trial court er- red in refusing Frisco’s request to grant a mistrial after Bair volunteered, on direct examination, that he had a family to sup- port.’ The court instructed the jury to disregard Bair’s remark. We hold the trial court acted well within the bounds of its discretion. ' The exchange between counsel and Bair went as follows: **Q Of what importance to you has been your training in your pro- fession, your career? A Weill, I spent the biggest part of my life working for the railroad and that’s my livelihood. I don’t have any more. I have a family to suppori.”’ The situation in the present case is analogous to that in Brown v. Parker, 375 S.W.2d 594 (Mo.App.1964). In both cases the testimony regarding the plaintiffs’ families was contained in an unresponsive answer on direct examination. In Brown the Court of Appeals held: [W]here improper evidence comes into the case through a voluntary statement of a witness, a mistrial is not a matter of right but is a question calling for the exercise of a sound discretion by the trial court, and in the absence of an abuse of that discretion we cannot interfere. ue ioe Brown, supra at 601. The trial court’s refusal to grant a mistrial was not an abuse of discretion as evidenced by the fact that Bair had previously testified without objection that he had a wife and family. Moreover, later in the trial Dr. Harmon, under cross-examination by Frisco, alluded to Bair’s sons. Based on these factors we hold that the trial court did not abuse its discre- tion in refusing to grant a mistrial. [7,8] Frisco’s eighth point concerns statements made by Bair’s attorney about Frisco’s examining physican, Dr. Mell. The comments were made during Frisco’s cross-examination of Dr. Winer, a medical witness for Bair. By consent of all parties, Dr. Mell had already testified. Frisco’s attorney questioned Dr. Winer about the frequency that he sees patients at the request of Bair’s attorney. At this point, Bair’s attorney said that Dr. Winer did not see as many people for him as Dr. Mell sees for Frisco. Bair’s attorney later apologized in open court for his remark. Both comments were within the hearing of the jury. The trial court rightly instructed the jury to disregard both com- ments. Frisco contends that Bair’s attorney, by his remarks, in- tended to go beyond the record to case aspersions on Dr. Mell and that the trial court erred in not granting its request for a mistrial. We do not think the trial court abused its discretion in refusing Frisco’s request. The trial court’s decision whether to declare a mistrial must be based on the nature of the comments made and the cir- cumstances in which the comments were made. Compare Dunn v. Terminal R. Ass’n, 285 S.W.2d 701 (Mo.1956) with Donk v. Francis, 351 Mo. 1053, 174 S.W.2d 840 (1943). The Donk case is especially analogous to the present case. In Donk defendant’s attorney commented to plaintiff, ‘‘your lawyer, doctor and you seem to work pretty well together.’’ Jd. 174 S.W.2d at 843. Defendant’s attorney apologized for this remark and the trial court directed the jury to disregard the remark. This Court held the trial court did not abuse its discretion in refusing to declare a mistrial. In the case at bar remarks by Bair’s attorney, while im- —A-8 — proper, did not rise to the level as that made in Donk. Under the circumstances, we cannot say the trial court abused its discre- tion. Frisco’s eighth point is denied. [9] Frisco’s ninth point is that the trial court erred in refusing to grant a new trial because of a comment made by Bair’s at- torney in closing argument. Bair’s attorney began his closing argument: Ladies and gentlemen, you have heard an argument which, in my opinion, just about comes about as close as you could get to the bottom, to the pits. Mr. Morris has told you about all these cases he’s tried against me. And I’ll guarantee you right here if you were to read the transcripts of those cases that are typed up by this court reporter, you will read the same argument in every single case he tries, that he gave to you right here today. It is a script. Every single case is the worse case he’s ever seen; in every single case there’s nothing to believe; in every single case, the doctors are confused, and every single case you should blame everything [and] anyone but the railroad. We do not fcel that the trial court abused its discretion in refus- ing to grant a new trial. Frisco’s attorney, in closing argument, had gone beyond the record and discussed his prior experiences. In considering whether to grant a new trial, the trial court con- sidered both arguments together. Clark v. Mize, 525 S.W.2d 635, 637 (Mo.App.1975). Considering the liberal attitude toward closing argument, the trial court’s considerable discre- tion and the fact that both attorneys brought in personal ex- periences in closing argument, we conclude that the trial court was not in error in refusing to grant a new trial. The defendant’s first two points complain of the court’s refusal to allow evidence of or to instruct the jury on the fact that any award of damages would not be subject to income tax. ae Yee Such an instruction is now required in F.E.L.A. cases by Nor- folk & Western Ry. v. Liepelt, 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689 (1980). We held in Dunn v. St. Louis-San Fran- cisco Ry., supra, that Liepe/! was not to be applied retroactively and the Court of Appeals considered itself bound by that deci- sion even though the Supreme Court in the meantime had decided Gulf Offshore Co. v. Mobil Oil Company, 453 U.S. 473, 486 fn. 16, 101 S.Ct. 2870, 2879 fn. 16, 69 L.Ed.2d 784 (1981), in which the Court characterized the claim that Liepe/t was not retroac- tive as ‘‘insubstantial.’’ {10} The Gulf Offshore holding is clear enough to us. Liepelt must be applied retroactively if an instruction on the tax conse- quences of an award has been requested. This does not mean, however, that a total or partial new trial must be granted in every case tried before Liepe/t, simply because a Liepelt-type in- struction was requested and was not given. It is appropriate for the lower courts, state and federal, to examine the verdicts rendered to determine whether the absence of an instruction on income tax effects was prejudicial. In Flanigan v. Burlington Northern, Inc., 632 F.2d 880 (8th Cir. 1980), cert. denied, 450 U.S. 921, 101 S.Ct. 1370, 67 L.Ed.2d 349 (1981), the court held that Liepe/t was retroactive, but concluded that the verdict was supported by the evidence and that there was no indication that the jury had inflated its award because of erroneous assumptions about tax conse- quences. The court pointed to the particular circumstances of Liepelt, a death case, and noted that the amount of the Liepei/t verdict was well in excess of the figures produced by objective analysis. Jd. at 890. Had the Supreme Court felt that new trials in pending cases were automatic, following Liepelt, it is prob- able that it would have vacated the Flanigan judgment, as well as those in Dunn and in Ingle v. Illinois Central Gulf Ry. Co., — A-10 — 608 S.W.2d 76 (Mo.App.1980), cert. denied, 450 U.S. 916, 101 S.Ct. 1359, 67 L.Ed.2d 341 (1981).° Appellant argues that the great weight of authority is contrary to Flanigan, Dunn and Ingle. We nevertheless elect to follow the Flanigan model. A new trial is burdensome to the parties and to the judicial system. This is especially so when the claim arose ten years ago. We believe that we have not only the power but the positive duty to examine the verdict to determine whether retrial is necessary {11] The record and the briefs before us show substantial disagreement as to the cause and extent of the plaintiff's dif- ficulties. The plaintiff’s evidence, which the jury obviously ac- cepted, showed that his earnings were substantially reduced following the accident and that, after trying to do some railroad jobs, he was able to earn very little. His ability to move was severely restricted and he suffered continuing pain. The jury could well have believed that his earnings capacity had been per- manently impaired. Defendant argues that the award could be expected to yield an annual income of approximately $25,000, which is more than the plaintiff could be expected to earn if he had been able to continue with his railroad employment. There are, however, other proper components of the verdict, including pain and suffering. See Flanigan at 890. Neither the trial court nor the Court of Appeals was disturbed by the size of the ver- dict, and we conclude, after reviewing the record, that it was within reasonable limits. We also conclude that it is unlikely that the jury inflated its verdict because of a mistaken assump- tion that the award would be subject to income taxation. * Plaintiff argues that the ultimate disposition of Gulf Offshore Company v. Mobil Oil Corporation, 625 S.W.2d 171 (Tex.App.1982), cert. denied, ___ U.S. ___, 103 S.Ct. 259, 74 L.Ed.2d 202 (1982), affirming a verdict for the plaintiff even though a Liepe/t instruction had not been given, is significant. This is not so. The case was not a F.E.L.A. case but rather involved another federal statute, and the Texas court held that the statute adopted state law. — A-ll — We do not believe that the interests of justice require a new trial, total or partial. The judgment is affirmed. WELLIVER, HIGGINS and BILLINGS, JJ., and MORGAN, Senior Judge, concur. RENDLEN, C.J., and DONNELLY, J., not participating. GUNN, J., not sitting. ON MOTION FOR REHEARING PER CURIAM. The appellant’s motion for rehearing for the most part raises points which were presented in its briefs, but the motion does claim that the opinion is inconsistent with one point discussed in Dunn, which, according to the motion, held that defendants were precluded from arguing that an award for loss of future earnings should be reduced to present value. See 621 S.W.2d 245, 254 (Mo. banc 1981). The holding in Dunn related to a combined argument about present value and income tax, under the assumption that Nor- folk and Western Railway Company v. Liepelt, 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689 (1980), was not to be applied retroactively. We have now held to the contrary but felt that reversal is not required in this case. [12] Dunn should not be read as holding that argument on present value of a future loss is not proper. Recent cases recognize the admissibility of economic evidence in evaluating damages. Sampson v. Missouri Pacific Railway Co., 560 S.W.2d 573, 587 (Mo. banc 1978); Raney v. Honeywell, Inc., 540 F.2d 932, 936 (8th Cir.1976). The issue of the present worth of a future loss could undoubtedly be presented on cross- examination of a claimant’s expert witnes, or through an expert called by the defense. The fact that a dollar today is not the — A-12 — same as a dollar payable some years from now, furthermore, is the matter of plainest fact which could be appropriately argued without the need for expert testimony. The motion for rehearing is denied. RENDLEN, C.J., and GUNN and DONNELLY, JJ., not participating. — A-l3 — APPENDIX B Rule 83.08. Transcripts—Briefs in Cases Transferred After Opinion In any case transferred to this Court after opinion, the parties shall retain the same position as appellant and respondent as in the Court of Appeals, and the transcript and brief filed in the Court of Appeals shall constitute the transcript and briefs in this Court. Any party may file an additional brief if he so desires. ~~ Ai APPENDIX C POINTS RELIED ON [As submitted by Petitioner before the Missouri Court of Appeals, and then before the Missouri Supreme Court] THE TRIAL COURT PREJUDICIALLY ERRED IN SUS- TAINING PLAINTIFF’S OBJECTION THERETO AND IN REFUSING TO PERMIT DEFENDANT TO ASK PLAIN- TIFF ON CROSS-EXAMINATION IF PLAINTIFF WAS AWARE THAT NO INCOME TAX WOULD BE DUE ON ANY AWARD PLAINTIFF MIGHT RECEIVE FROM THE JURY. THE TRIAL COURT SHOULD HAVE OVERRULED PLAINTIFF’S OBJECTION THERETO AND PERMITTED THE INQUIRY BECAUSE PLAINTIFF WOULD HAVE ACKNOWLEDGED THAT HE KNEW HE WOULD HAVE TO PAY NO INCOME TAX ON HIS JURY AWARD, THUS ACKNOWLEDGING TO THE JURY THAT NO SUCH TAX WOULD BE DUE AND THEREBY ELIMINATING AS MUCH AS POSSIBLE ANY LIKELIHOOD THAT THE JURY MIGHT INCLUDE AN AMOUNT FOR INCOME TAXES IN THEIR AWARD. Il. THE TRIAL COURT PREJUDICIALLY ERRED IN REFUSING DEFENDANT’S TENDERED INSTRUCTION C, WHICH WAS TO THE EFFECT THAT ANY JURY AWARD PLAINTIFF MIGHT RECEIVE WAS NOT SUB- JECT TO INCOME TAX. THE TRIAL COURT SHOULD HAVE GIVEN INSTRUCTION C. HIS FAILURE TO GIVE IT SUBJECTED DEFENDANT TO THE LIKELIHOOD THAT THE JURY AWARD INCLUDES AN AMOUNT FOR INCOME TAXES. HAD HE GIVEN INSTRUCTION C, THAT ELEMENT WOULD HAVE BEEN ELIMINATED FROM THE JURY AWARD. — A-15 — Ill. THE TRIAL COURT PREJUDICIALLY ERRED IN REFUSING DEFENDANT’S TENDERED INSTRUCTION A, A “‘PRESENT VALUE”’ INSTRUCTION. THE TRIAL COURT SHOULD HAVE GIVEN INSTRUCTION A. HIS FAILURE TO GIVE THE INSTRUCTION DENIED DEFEN- DANT OF ONE OF ITS RIGHTS AS A DEFENDANT UNDER THE FEDERAL EMPLOYERS LIABILITY ACT; NAMELY, THE RIGHT TO HAVE THE JURY CONSIDER THE PRESENT VALUE OF ANY AWARD FOR FUTURE WAGE LOSS. IV. THE COURT PREJUDICIALLY ERRED IN GIVING PLAINTIFF’S TENDERED INSTRUCTION NO. 7, THE DAMAGE INSTRUCTION, WHICH IS M.A.I. 8.02. THE COURT SHOULD HAVE REFUSED THE INSTRUCTION BECAUSE IT FAILED TO LIMIT THE JURY’S CON- SIDERATION TO THE OCCURRENCE OF JANUARY 18, 1973, THE ONLY OCCURRENCE FOR WHICH DEFEN- DANT COULD HAVE BEEN LIABLE. FURTHER, THE IN- STRUCTION IS A MISSTATEMENT OF THE LAW OF DAMAGES APPLICABLE TO THIS FELA CASE FOR THE REASON THAT IT DIRECTS THAT DEFENDANT IS LIABLE FOR INDIRECT, CONSEQUENTIAL, SPECULATIVE, AND REMOTE DAMAGES. BECAUSE THE USE OF SAID INSTRUCTION IS COMPELLED BY RULE 70.02(b), THE STATE, THROUGH ITS JUDICIARY, IS THEREBY DENYING DEFENDANT EQUAL PROTEC- TION OF THE LAW AND DUE PROCESS OF LAW IN VIOLATION OF THE UNITED STATES AND MISSOURI CONSTITUTIONS AND ALSO DENYING DEFENDANT ITS RIGHTS UNDER THE SUPREMACY CLAUSE OF THE UNITED STATES CONSTITUTION. — Ai6 — ¥. THE TRIAL COURT PREJUDICIALLY ERRED IN REFUSING DEFENDANT’S TENDERED INSTRUCTION E, PERTAINING TO SPECULATIVE DAMAGES. THE TRIAL COURT SHOULD HAVE GIVEN INSTRUCTION E BECAUSE IT IS A CLEAR STATEMENT OF ONE OF DEFENDANT’S RIGHTS UNDER THE FELA; NAMELY, THE RIGHT TO HAVE SPECULATIVE DAMAGES Ex- CLUDED FROM ANY JURY AWARD TO PLAINTIFF. Vi. THE COURT PREJUDICIALLY ERRED IN GIVING PLAINTIFF’S TENDERED INSTRUCTION NO. 3, THE VERDICT DIRECTOR, M.A.I. 24.01. THE COURT SHOULD HAVE REFUSED SAID INSTRUCTION BECAUSE IT IS A ROVING COMMISSION AND SO VAGUE AS TO GIVE THE JURY NO GUIDANCE ON THE ISSUE OF WHETHER OR NOT THERE ARE FACTS IN EVIDENCE GIVING RISE TO A PERMISSIBLE FINDING OF NEGLIGENCE ON DEFENDANT’S PART. BECAUSE THE USE OF SAID INSTRUCTION IS COMPELLED BY RULE 70.02(6), THE STATE OF MISSOURI, THROUGH ITS JUDICIARY, IS DEPRIVING DEFENDANT OF ITS RIGHTS TO EQUAL PROTECTION UNDER THE LAW AND DUE PROCESS OF LAW UNDER THE UNITED STATES AND MISSOURI CONSTITUTIONS AND DEFEN- DANT IS BEING DENIED ITS RIGHTS UNDER THE SUPREMACY CLAUSE OF THE UNITED STATES CON- STITUTION. — A-17 — APPENDIX D Rule 70.02. Instructions to Juries. *** (b) Missouri Approved Instructions Exclude Others. Whenever Missouri Approved Instructions 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 exclu- sion of any other on the same subject. *_** Rule 70.03. Objections to Instructions Counsel need not object to any instructions to be given at the request of any other party or by the court on its own motion or to the refusal of any instruction requested by such party. Specific objections to instructions shall be required in motions for new trial unless made at trial. The making of objections dur- ing trial shall not preclude making additional objections to the same or other instructions in the motion for new trial. No general objection to instruction is required. — A-18 — APPENDIX E [James C. Bair, Plaintiff v. St. Louis-San Francisco Railway Company, Defendant, Cause No. 55645-F, Division 11, in the Circuit Court of Missouri, Twenty-Second Judicial Circuit, Hon. Richard J. Brown, Judge, Transcript on Appeal, Vol. II, pp. 585-589; from conference on jury instructions]. [585] At the close of the entire case, the Defendant filed it’s motion for a directed verdict. The Court overruled the same. Court was declared in recess until 9:15, Friday, November 2, 1979. And on Friday, November 2, 1979, the following pro- ceedings were had in chambers). MR. MORRIS: Your Honor, on behalf of the defendant, at this time, at the instruction conference, during the course of this trial I want to take this opportunity—the first and earliest op- portunity I have had—to make specific certain specific objec- tions to specific instructions offered by the plaintiff in which the Court has given on behalf of the Plaintiff. And I don’t intend by so making specific objections now to certain instructions to waive any right that I may have under the law or under the rules to make objections later on. But, at this time, I’d like to make a [586] specific objection to Instruction No. 3, which is the verdict directing instruction; and in which the plaintiff submits two grounds of negligence against the defendant, namely: reasonably safe conditions for working or reasonably safe methods of working. The reason I want to object to that instruction and those submissions, on the grounds that that instruction is vague and speculative. It is a roving commission and it discriminates against the railroad defendants in the State of Missouri. And I want to object — A-19 — specifically that it includes the question of whether or not the boxcar end should have been removed and straightened at some other place which the defendant submits is a management ques- tion. I want to submit and object that the instruction because of its vagueness, because it’s limited to the F.E.L.A. case, and because it does not meet the standards of instructions required by the Courts of the State of Missouri, is in violation of the defendant-railroad under the equal protection of the laws of the United States Constitution, 14th Amendment, and the Missouri Constitution, Article 1, Section 2, in that by giving this instruc- tion the defendant is being deprived of his property without due process of law in violation of the 5th Amendment [587] of the United States Constitution and the Missouri Constitution, Arti- cle I, Section 10. And, again, I want to renew my objections that the instruction includes the question of removal of the box- car end, permits that jury to find negligence on the basis which violates the defendant’s rights under Article VI, Clause 2 of the United States Constitution pertaining to the question of whether or not federal law will prevail in this case and it’s con- trary to federal law for 45 U.S.C.A. 51 which is the Federal Employers’ Liability Act. As mentioned before, by making these specific objections to Instruction 3, I don’t intend to waive any objections that I might otherwise have to Instruction 3; and I don’t intend to waive any objections otherwise available to any of the instructions. And, continuing my objections, I’d like to object to the ac- tion of the Court in— THE COURT: The defendant has submitted Instructions which are entitled A, B, C, D, E, F, and Interrogatories to the Jury. MR. MORRIS: And, I’d like to, on behalf of the defendant, object to the Court’s— —_ es THE COURT: The Court is refusing these instructions. [588] MR. MORRIS: I want to object to the action of the Court in refusing the instructions tendered by the defendant lettered A, B, C, D, E, F, and the special interrogatories to the jury, for the reasons that these instructions are legal instructions under the federal case law and under the Federal Employer’s Liability Act even though they are not in Missouri instructions, not in the Missouri approved instructions. The reason I want to object, on the grounds, specifically, now, and the grounds specifically for my objections—I’m raising the constitutional grounds at the first opportunity—are that the Court’s refusal of these instruc- tions is a violation of the defendant’s rights under the equal pro- tection clause of the United States Constitution, 14th Amend- ment; Missouri Constitution, Article I, Section 2, for the reason that the defendant is being deprived of its property without due process of law under the United States Constitution, Sth Amendment and Missouri Constitution, Article 1, Section 10; and for the further reason that these instructions are all ap- plicable instructions under the Federal Employers’ Liability Act, 45 U.S. C. 51, and should be given because of the fact that federal case law and the F.E.L.A. federal case law prevails over Missouri law. [589] THE COURT: The Court will refuse Instructions A through F and the Interrogatories to the Jury. *** ahead — A-21 — APPENDIX F IN THE CIRCUIT COURT CITY OF ST. LOUIS James C. Bair Vv. St. Louis San Francisco Railroad, a Corporation, No. 55645-F Room February 11, 1980 MEMORANDUM FOR CLERK Defendant’s Motion for a Directed Verdict at the close of all the evidence, or in the alternative for a new trial is overruled. S/RICHARD J. BROWN, Judge. cc: Gerald D. Morris Atty for Defendant 1023 Frisco Building 906 Olive Street St. Louis, MO 63101 Marshall Friedman, Atty. for Plaintiff, | Paul Brown Bldg., 4th FI. 818 Olive Street St. Louis, MO 63101 — A-22 — APPENDIX G [Pertinent paragraphs from Petitioner’s Motion for New Trial, L.F. pp. 15-26] 11. The Court erroneously refused to permit defendant to cross-examine plaintiff concerning knowledge that he did not have to pay income taxes on any amount he receives as judg- ment in this case, and that he did not receive personal benefit from what he paid in taxes on his wages, and that he was asking the jury to compensate him for his gross before tax income in- stead of his true after tax income. Said denial by the Court denied defendant equal protection of the law under the Four- teenth Amendment to the United States Constitution and Arti- cle I, Section 2, of the Missouri Constitution; and deprived defendant of its property without due process of law in violation of the United States Constitution, Fifth Amendment, and the Missouri Constitution, Article 1, Section 10, and in violation of defendant’s rights under the federal common law as it pertains to the Federal Employers’ Liability Act, 45 U.S.C.A. Sections 51, et seq., and Article 6, Clause 2 of the United States Con- stitution, all to the prejudice of defendant. ** @ 19. The Court prejudicially erred in giving, at the request of plaintiff, plaintiff’s verdict directing instruction No. 3, which is M.A.I. 24.01, because: a) said instruction constitutes a roving commission par- ticularly by use of the words ‘‘safe conditions for work’’ and ‘‘safe methods for work’’ in Paragraph First thereof, in that it permitted the jury to find against defendant for any circumstances they might — decide was a condition or method of work whether or not said circumstances was shown by the evidence to be a jegal grounds for recovery or even included b) c) d) e) 8) h) — A-23 — within the scope of plaintiff’s pleadings or the issues as made by the evidence at trial; said instruction did not confine the jury to deciding the issues presented by the pleadings and evidence, but instead permitted them to speculate and conjec- ture as to the grounds for defendant’s liability; the submissions of Paragraph First thereof are vague and meaningless and afford the jury no guide in the application of the law to the facts nor does it guide them in the issues to be decided; there was no evidence to support the submissions of Paragraph First thereof; said instruction failed to submit the real issues of the case, namely whether defendant failed to provide the plaintiff with temporary flooring or force plaintiff to work without giving him the opportunity to get tem- porary flooring; the submissions of Paragraph First are not supported by sufficient evidence to permit the jury to make a finding thereunder; M.A.I. 24.01 is a vague, roving commission affording the jury no guide in the application of law to fact or in setting forth the actual issues to be decided; said instruction No. 3, in being mandatory under the M.A.I., (Instruction 24.01) is discriminatory against Federal Employers’ Liability Act defendants in that it does not meet the standards set by law and rule in this State for verdict directing instructions against non- Federal Employers’ Liability Act defendants, or even non-Federal Employers’ Liability Act employee or employer defendants. The Supreme Court, in requir- ing and permitting the use of said instruction 24.01 — A — against Federal Employers’ Liability Act defendants only deny Federal Employers’ Liability Act defen- dants, including this defendant in this trial, their rights to equal protection of the law under the Con- stitution of the United States, Fourteenth Amend- ment, Missouri Constitution, Article I, Section 2. Said defendants are also deprived of their rights under the United States Constitution, Fifth Amend- ment, and the Missouri Constitution, Article 1, Sec- tion 10. Further, the defendant’s rights under the Federal Employers’ Liability Act, and federal com- mon law pertaining thereto, requires that defendant be found liable for specific negligent conduct and not for the general roving commission concept of negligence as set forth in instruction No. 3 and in M.A.I. 24.01, in violation of defendant’s rights under Article 6, Clause 2 of the United States Constitution. 20. Instruction No. 7, plaintiff's damage instruction, was er- roneously given by the Court to the prejudice of defendant in that the instruction uses the phrase ‘‘occurrence mentioned in the evidence,’’ which is a vague, roving commission speculative phrase which did not confine the jury’s consideration to the event involving plaintiff's moving the air jack, but instead per- mitted them to consider many occurrences mentioned in the evidence for which defendant is not liable; for example only, that plaintiff worked three years after the air jack incident lif- ting air brake cylinders weighing 40-60 Ibs. regularly, or that defendant permitted plaintiff to work even though plaintiff was complaining of his back. Said language is a roving commission and does not require that the jury find that plaintiff’s damages resulted from the air jack incident as is pleaded by him. Further, said instruction erroneously omits the word direct, or some other limiting word or phrase such as ‘‘in whole or in part’’, in the phrase ‘‘as a result of the occurrence’’. The federal common law pertaining thereto and the Federal Employers’ — A-25 — Liability Act do not permit indirect or remote damages from defendant's negligence. They provide that the defendant shall be liable in damages for injury resulting in whole or in part from the negligence of the railroad. In short, instruction No. 7 and M.A.I. 8.02 are clear misstatements of the law permitting the jury to find defendant liable for indirect, remote, speculative and conjectural damages. This instruction is limited by the M.A.1. Notes on Use, thus the Supreme Court Rule, to Federal Employers’ Liability Act cases and, hence, is discriminatory against Federal Employers’ Liability Act defendants. In compelling the use of said in- struction, the Supreme Court of Missouri has deprived defen- dant of its rights under the equal protection of laws provision of the United States Constitution, Fourteenth Amendment, and Missouri Constitution, Article 1, Section 2, and has deprived defendant of its property without due process of law in violation of defendant’s rights under the United States Constitution, Fifth Amendment, and the Missouri Constitution, Article I, Section 10, and has denied defendant its rights under the Federal Employers’ Liability Act, 45 U.S.C.A. Sections 51, et seq., in that defendant is liable in damages only for injury (or death) resulting in whole or in part from its negligence, in viola- tion of defendant’s rights under Article 6, Clause 2 of the United States Constitution. 21. The Court prejudicially erred in refusing the following in- structions tendered by defendant because said instructions are legal, valid instructions stating defendant’s rights under the Federal Employers’ Liability Act and the federal common law pertaining thereto: a. Instruction A, the present value instruction. Said in- struction is particularly important because of plain- tiff’s proof as to future wage loss in this case. a Ad c. Instruction C, the income tax instruction. In this case, that instruction is particularly important because of plaintiff's proof as to the amount of future wage loss, which would be subject to taxes, whereas his award is not subject to income taxes. 7_* * e. Instruction E. This instruction clearly states defen- dant’s federal common law rights against speculative and conjectural damages being awarded to plaintiff. 7s * 22. The Court’s refusal to give instructions lettered A, B. C, D. E and F, and the Interrogatories to the Jury, all tendered by defendant, deprives defendant of its rights under the equal pro- tection of laws provision of the United States Constitution, Fourteenth Amendment, and the Missouri Constitution, Article I, Section 2. Further, defendant is thereby deprived of its pro- perty without due process of jaw in violation of its rights under the United States Constitution, Fifth Amendment, and the Missouri Constitution, Article 1, Section 10. Further, defendant is thereby denied its rights under the Federal Employers’ Liabili- ty Act, 45 U.S.C.A. Sections 51, et seq., and the federal com- mon law pertaining thereto, and Article 6, Clause 2 of the United States Constitution. an ie = APPENDIX H *** {The following instructions were tendered to the trial court by Petitioner but refused by that court]. INSTRUCTION NO. A If you find in favor of plaintiff and decide to make an award for any loss of earnings in the future, you must take into ac- count the fact that the money awarded by you is being received all at one time instead of over a period of time extending into the future and that plaintiff will have the use of this money ina lump sum. You must therefore determine the present value or present worth of the money which you award for such future loss. [L.F. 29] INSTRUCTION C If your verdict is in favor of plaintiff your award will not be subject to any income taxes and you should not consider such taxes in fixing the amount of your award. [L.F. 31] INSTRUCTION E You are not permitted to award the plaintiff speculative damage by which term is meant compensation for future detri- ment which, although possible, is remote, conjectural or speculative. You can only award for future detriment if a preponderance of the evidence shows such a degree of pro- bability of that detriment occurring as amounts to a reasonable certainty that it will result from the original injury in question. {L.F. 33] — A-28 — APPENDIX I 8.02 Damages - F.E.L.A. - Injury to Employee ** * Committee's Comment (1978 New) This instruction is used only in an F.E.L.A. case wherein the employee sustained injury. It is a duplication of MAI 4.01 with two exceptions. The word ‘‘direct’’ is deleted from the fifth line of MAI 4.01. This is required in an F.E.L.A. case so that the in- struction complies with the correct substantive law, Wilmoth v. Rock Island Ry., 486 S.W.2d 631 (Mo. 1972); Crane v. Cedar Rapids & lowa City Ry. Co., 395 U.S. 314 (1969); and Rogers v. Mo. Pac. Ry., 352 U.S. 500 (1957). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1238%3A1. Public record. Not legal advice.