                     In the Missouri Court of Appeals
                             Eastern District
                                       DIVISON FOUR

WALTER DOUGLAS,                             )       No. ED100039
                                            )
       Appellant,                           )       Appeal from the Circuit Court of
                                            )       St. Louis County
vs.                                         )
                                            )
ST. LOUIS COLD DRAWN, INC.,                 )       Honorable Maura B. McShane
                                            )
       Respondent.                          )       Filed: June 30, 2014

                                          Introduction

       Walter Douglas (Plaintiff) appeals the trial court’s judgment in favor of St. Louis Cold

Drawn, Inc. (Defendant) on his action in negligence. Plaintiff claims the trial court erred in

submitting to the jury Defendant’s improper affirmative converse instruction. We affirm.

                             Factual and Procedural Background 1

       Plaintiff, a truck driver, worked as an independent contractor for Tennessee Steel

Haulers. On August 31, 2010, Plaintiff drove his tractor trailer to Defendant’s premises where

he worked with Defendant’s employee, Mark Kelle, to load bundles of steel onto Plaintiff’s

trailer. Mr. Kelle was operating an overhead crane and Plaintiff was standing near the back of




1
  We view the evidence in the light most favorable to the submission of the affirmative converse
instruction. See Walton v. City of Seneca, 420 S.W.3d 640, 645 (Mo.App.S.D. 2013).
his trailer, when the wire, which connected the spreader bar 2 to the crane, broke and the spreader

bar fell.

        After the incident, Plaintiff assured Defendant’s employees that he was “fine” and did not

require an ambulance. Plaintiff did not inform anyone that he had been struck by the spreader

bar. After Defendant’s employees finished loading Plaintiff’s trailer, Plaintiff drove to Villa

Ridge, Missouri, where he stopped for a shower and noticed increasing pain and tightness in his

neck and right shoulder.     Plaintiff decided to visit the emergency room at Phelps County

Memorial Hospital, where doctors noted an “abrasion” on Plaintiff’s right shoulder, ordered an

x-ray and CT scan, and prescribed a neck collar and pain medication. The next day, Plaintiff

drove his tractor trailer to Fredericksburg, Texas.

        Plaintiff filed an action against Defendant alleging negligence and res ipsa loquitur and

seeking damages for his injuries.      In the petition, Plaintiff alleged that, as Mr. Kelle was

operating the crane, “the cable and/or wire to the spreader bar which was attached to the

overhead crane broke causing the bottom assembly and/or spread[er] bar to fall approximately

fifteen (15) to twenty (20) feet onto Plaintiff’s shoulder” and “Defendant was negligent and

careless and breached its duty of care to the general public and Plaintiff and is liable for the

damages resulting from Plaintiff being struck by the falling bottom assembly and/or spread[er]

bar . . . .” Plaintiff averred that, as a result of Defendant’s negligence in maintaining and

operating the crane, Plaintiff suffered severe injuries to his head, back, and neck.

        The trial court held a five-day jury trial. In his opening statement, Plaintiff’s counsel

informed the jury that the evidence would show that “[t]he crane hits [Plaintiff] on his right



2
 In the record on appeal, the spreader bar is variously referred to as the “spread bar,” “boom,”
“I-beam,” and “overhead crane.” At trial, Plaintiff and Defendant’s employee, Drago Lozina,
estimated that the spreader bar weighed one ton, or 2,000 pounds.
                                                      2
shoulder. He stumbles over against the wall.” Plaintiff testified that he was walking alongside

the trailer when he heard “snap, crackle, pop; looked up; boom . . . . I was hit.” Plaintiff

explained, “I don’t know which part [of the crane] hit me because my head was turned. . . . It hit

me – jarred me – and I went up against the wall.” When Plaintiff’s counsel asked where on his

body the spreader bar hit him, Plaintiff answered, “It hit me right across the shoulder here as I

was ducking away.” Plaintiff presented as witnesses several employees of Defendant, all of

whom affirmed that the crane’s wire broke but stated that Plaintiff neither appeared injured nor

informed anyone that he had been hit by the spreader bar.

       In support of the defense theory that the crane’s failure did not cause the spreader bar to

strike Plaintiff and cause his injuries, Defendant presented the deposition testimony of Gina

Clarey, Tennessee Steel Haulers’ dispatcher who spoke to Plaintiff immediately after the

incident. Ms. Clarey stated that Plaintiff was “very upset” and told her that “something came

down and all – I mean, it almost hit him. He never told me that it hit him.” Defendant also

presented the expert testimony of Dr. Richard Rende. Dr. Rende testified that he examined

Plaintiff at Defendant’s request, and Plaintiff informed him that “a metal I-beam, part of a crane,

had – that was suspended by a cable had fallen, and he indicated that he was standing adjacent to

his truck and that the I-beam struck his shoulder.” However, Dr. Rende opined that, “if he were

struck in the shoulder by a glancing blow, as they describe, I can’t in my own mind see how the

pathophysiology resulted in his developing a herniation that required surgery.” Based on his

examination of Plaintiff and review of Plaintiff’s medical records, Dr. Rende concluded that

Plaintiff “has two reasons to have neck problems. One is he [sic] degenerative spondylosis of

the cervical spine. The other is he’s a diabetic.”




                                                     3
       After the close of evidence, the trial court held an instructions conference, at which

Plaintiff proffered the following verdict director, Instruction No. 8, modeled on MAI No. 22.03:

           Your verdict must be for plaintiff, if you believe:
           First, there was an overhead crane on defendant’s premises that was not
       reasonably safe, and
           Second, defendant knew or by using ordinary care could have known of this
       condition, and
           Third, defendant failed to use ordinary care in the maintenance or operation of
       the overhead crane, and
           Fourth, as a direct result of such failure, plaintiff Walter Douglas sustained
       damage.

       Unless you believe plaintiff is not entitled to recover by reason of Instruction
       Number 9.


       Defendant proffered Instruction No. 9, an affirmative converse instruction, which

provided: “Your verdict must be for defendant if you believe that the overhead crane did not hit

the plaintiff on August 31, 2010.” Plaintiff’s counsel objected to Instruction No. 9 on the

grounds that “it is not an MAI instruction and [I] don’t believe it’s proper.” Defense counsel

requested a more specific objection, stating, “I’m not sure what the objection is, it’s not proper. I

mean, if there’s some objection to the wording of the instruction, I’d like to know, because I

could possibly change it. I think it’s supported by the case law.” Plaintiff’s counsel replied:

       I don’t believe that it’s supported by the case law. I believe that it’s not an MAI
       instruction. I believe that there is no evidence that the spreader bar or overhead
       crane didn’t come into contact with the plaintiff. There’s been no evidence of that
       in this case. And for that reason I believe it’s improper.




                                                     4
The trial court agreed with defense counsel that affirmative converse instructions “are allowable

in certain situations” and overruled Plaintiff’s objection. The trial court submitted Instructions

Nos. 8 and 9 to the jury. 3

        The jury returned a verdict in favor of Defendant. Plaintiff appeals.

                                        Standard of Review

        We review claims of instructional error de novo. Howard v. City of Kansas City, 332

S.W.3d 772, 790 (Mo. banc 2011). When reviewing a claimed instructional error, we view the

evidence most favorably to the instruction and disregard contrary evidence. Walton v. City of

Seneca, 420 S.W.3d 640, 644 (Mo.App.S.D. 2013).           We will reverse the verdict “only if the

party claiming instructional error establishes that the instruction at issue misdirected, misled, or

confused the jury, resulting in prejudicial error.” Howard, 332 S.W.3d at 790.

                                            Discussion

        In his sole point on appeal, Plaintiff claims the trial court erred in submitting Defendant’s

affirmative converse instruction “that mandated a defense verdict if the jury believed the

overhead crane did not hit Plaintiff on August 31, 2010 . . . .” More specifically, Movant

contends Instruction No. 9 was improper because it: (1) was unsupported by the facts and law

and “confused the issue of causation”; (2) failed to hypothesize an ultimate issue that, if true,

would defeat Plaintiff’s claim; and (3) failed to accurately converse Plaintiff’s verdict director

and contained new argument not supported by the evidence. Plaintiff further alleges that the trial

court erred in submitting Instruction No. 9 because “Defendant failed to show independent

evidence which supported the affirmative converse instruction that the overhead crane did not hit



3
  During deliberations, the jury sent the trial court the following jury request: “If we find in
agreement with No. 9 can we still award the Plaintiff a sum?” The trial court replied, “Please be
guided by the Instructions and Verdict Forms the Court has already given you.”
                                                     5
Plaintiff, and thereby the jury was misled to believe they could only find for Plaintiff if the actual

crane had struck Plaintiff . . . .” In response, Defendant asserts that Plaintiff’s objections to

Instruction No. 9 at trial failed to preserve the issues he now raises on appeal. Defendant further

argues that, even if Plaintiff preserved his claim that the affirmative converse instruction was not

supported by the evidence, the trial court did not err in submitting Instruction No. 9 because

“there was independent evidence to support its submission and no indication of prejudice.” 4

       There is no dispute that Instruction No. 9 is an affirmative converse instruction. “[An]

affirmative converse instruction begins, ‘Your verdict must be for the defendant if you believe . .

.’ and it requires independent evidence for support.” Hiers v. Lemley, 834 S.W.2d 729, 734

(Mo. banc 1992) (quoting MAI 33.01).            “In a negligence case, an affirmative converse

instruction presents a hypothetical ultimate issue which, if true, renders it impossible for the jury

to find the defendant negligent as a matter of law.” Blackstock v. Kohn, 994 S.W.2d 947, 951

(Mo. banc 1999). “Although not favored, an affirmative converse instruction is appropriate

where the verdict director assumes as true or omits a disputed ultimate issue.” Id. (citing Hiers,

834 S.W.2d at 735). 5



4
  Defendant also contends that Plaintiff’s point relied on violates Rule 84.04(d) and therefore
preserves nothing for review. Although Plaintiff’s point relied on does not satisfy all the
requirements of Rule 84.04(d), “this court may exercise its discretion to consider a deficient
point if the issue the point intended to raise can be identified and addressed on its merits.”
Daniel v. Indiana Mills & Mfg., Inc., 103 S.W.3d 302, 307 (Mo.App.S.D. 2003). Defendant
appears to have been able to glean the basis for the claimed error and respond to that claim. This
court can likewise discern the basis for the claimed error. We therefore consider on its merits the
issue to which Plaintiff’s point relied on is directed.
5
  We note that, while an affirmative converse instruction is approved by the MAI and may be
appropriate in limited situations, “its use is fraught with peril.” Walton v. City of Seneca, 420
S.W.3d 640, 650 n.11 (Mo.App.S.D. 2013) (citing Hiers, 834 S.W.2d at 735). This is because
the affirmative converse “tends to resemble a prohibited sole cause instruction, it often is a
resubmission of the issues found in the verdict director, and it tends to mislead the jury.” Jone v.
Coleman Corp., 183 S.W.3d 600, 605 (Mo.App.E.D. 2005) (citing Hiers, 834 S.W.2d at 735–
36).
                                                      6
          As an initial matter, we address Defendant’s assertion that Plaintiff’s objection to

Instruction No. 9 was not specific and therefore preserved nothing for review. Rule 70.03

provides: “Counsel shall make specific objections to instructions considered erroneous. No

party may assign as error the giving or failure to give instructions unless that party objects

thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and

the grounds of the objection.” Accordingly, to preserve a claim of instructional error, a party

“must make specific objections to the giving or failure to give instructions before the jury retires

to consider its verdict [and] the objections and grounds therefore must be stated distinctly on the

record, and the objections must also be raised in the motion for new trial.” Berra v. Danter, 299

S.W.3d 690, 702 (Mo.App.E.D. 2009) (emphasis in original) (quotation omitted). In addition,

“[a] point on appeal must be based upon the theory voiced in the objection at trial[,] and an

appellant cannot expand or change on appeal the objection as made.” Kline v. City of Kansas

City, 334 S.W.3d 632, 647 (Mo.App.W.D. 2011) (quotation omitted). “[W]e will not convict a

trial court of error on an issue that it had no chance to decide.” Goralnik v. United Fire & Cas.

Co., 240 S.W.3d 203, 210 (Mo.App.E.D. 2007).

          The only objection to Instruction No. 9 that Plaintiff made at trial, reasserted in his

motion for new trial, and included in his point relied on was that “there is no evidence that the

spreader bar or overhead crane didn’t come into contact with the plaintiff.” Construing this

objection most broadly, we deem preserved Movant’s claim that Defendant presented no

evidence to support the affirmative converse instruction that the overhead crane did not hit

Plaintiff. To the extent that Plaintiff alleges on appeal errors that he did not raise in his

objections to the trial court, those errors are not preserved on appeal. See Goralnik, 240 S.W.3d

at 210.     Although errors not preserved on appeal may be reviewed for plain error at the



                                                      7
appellate’s court discretion, appellate courts seldom grant plain error review in civil cases, and

we decline to do so here. See id.

        In considering whether the evidence supported Defendant’s affirmative converse

instruction, “we view all the evidence in the light most favorable to the party offering the

instruction, and give that party the benefit of all favorable inferences reasonably drawn therefrom

and disregard evidence to the contrary.” Maxwell v. City of Hayti, 985 S.W.2d 920, 922

(Mo.App.S.D. 1999). Here, Defendant adduced on cross-examination testimony from several of

its employees that, after the crane failure, Plaintiff neither stated that he had been hit nor

appeared injured.    Defendant also introduced evidence that immediately after the incident

Plaintiff told his dispatcher that “it almost hit him,” and then secured the loads of steel to his

truck, and drove approximately 100 miles. Finally, Defendant presented the expert testimony of

Dr. Rende who stated that Plaintiff’s injury was likely not caused by a “glancing blow, as they

describe.” Viewing the evidence in the light most favorable to Defendant and giving Defendant

the benefit of all reasonable inferences, we conclude that Defendant presented sufficient

evidence to support the affirmative converse instruction. See, e.g., Maxwell, 985 S.W.2d at 923.

Point denied.

                                           Conclusion

       The judgment of the trial court is affirmed.




                                             Patricia L. Cohen, Judge


Lisa S. Van Amburg, P.J., and
Philip M. Hess, J., concur.




                                                      8
