Supreme Court Rule Changes
In an order dated October 31, 2006, the Supreme Court of Missouri repealed Regulation 2 of Regulations of the Board of Law Examiners to subdivision 8.08 (The Bar Examination) of Supreme Court Rule 8, entitled “Admission to the Bar,” and adopted a new Regulation 2 of Regulations of the Board of Law Examiners to subdivision 8.08 (The Bar Examination).
This order becomes effective March 1, 2007.
The complete text of the order may be read in its entirety at www.courts.mo.gov.
The Supreme Court of Missouri, in an order dated November 1, 2006, repealed subdivision 1.11, entitled “Internet/World Wide Web Site Development,” and subdivision 1.12, entitled “Internet/World Wide Web Site Content,” of Court Operating Rule 1 (State Court Automation).
In the same order, the Court repealed Court Operating Rule 20 and adopted a new Court Operating Rule 20, entitled “Open Meetings, Open Records and Communications,” consisting of subdivisions 20.01 to 20.05, inclusive.
This order became effective November 1, 2006.
The complete text of the order may be read in its entirety at www.courts.mo.gov.
SUPREME COURT OF MISSOURI
en banc
September 25, 2006
In re: Revisions and additions to
MACH-CR and MAI-CR 3d
Effective January 1, 2007
TABLE OF INSTRUCTIONS
MACH-CR 2.30 Indictment or Information - Repeat Offenders and “Abuse and Lose”
(Charge - Unchanged)
(Notes on Use - Revision)
MAI-CR 3d 305.01 First Instruction: After a Finding of Guilt
(Instruction - Unchanged)
(Notes on Use - Revision)
MAI-CR 3d 306.06 Justification: Use of Force in Self-Defense
(Instruction - Unchanged)
(Notes on Use - Revision)
MAI-CR 3d 310.04 Blood Alcohol Evidence
(Instruction - Unchanged)
(Notes on Use - Revision)
MACH-CR 13.12 Involuntary Manslaughter in the First Degree: Driving While Intoxicated
(Charge - Revision)
(Notes on Use - Revision)
MAI-CR 3d 313.12 Involuntary Manslaughter in the First Degree: Driving While Intoxicated
(Instruction - Revision)
(Notes on Use - Revision)
MAI-CR 3d 313.40 Guilty of Murder in the First Degree: Statutory Aggravating Circumstances: Finding Required for Death
Penalty
(Instruction - Revision)
(Notes on Use - Revision)
MACH-CR 14.12 Involuntary Manslaughter in the First Degree: Driving While Intoxicated
(Charge - Revision)
(Notes on Use - Revision)
MAI-CR 3d 314.12 Involuntary Manslaughter in the First Degree: Driving While Intoxicated
(Instruction - Revision)
(Notes on Use - Revision)
MAI-CR 3d 314.40 Guilty of Murder in the First Degree: Statutory Aggravating Circumstances: Finding Required for Death
Penalty (After August 28, 2001)
(Instruction - Revision)
(Notes on Use - Revision)
MAI-CR 3d 314.58 Verdict Forms: Second Stage (After August 28, 2001)
(Instruction - Revision)
(Notes on Use - Revision)
MACH-CR 19.34 Assault of a Law Enforcement Officer, Emergency Personnel or Probation and Parole Officer in the Second
Degree: Deadly Weapon or Dangerous Instrument
(Title - Revision)
(Charge - Revision)
(Notes on Use - Revision)
MAI-CR 3d 319.34 Assault of a Law Enforcement Officer, Emergency Personnel or Probation and Parole Officer in the Second
Degree: Deadly Weapon or Dangerous Instrument
(Title - Revision)
(Instruction - Revision)
(Notes on Use - Revision)
MACH-CR 19.36 Assault of a Law Enforcement Officer, Emergency Personnel or Probation and Parole Officer in the Second
Degree: Recklessly Causing Serious Physical Injury
(Title - Revision)
(Charge - Revision)
(Notes on Use - Revision)
MAI-CR 3d 319.36 Assault of a Law Enforcement Officer, Emergency Personnel or Probation and Parole Officer in the Second
Degree: Recklessly Causing Serious Physical Injury
(Title - Revision)
(Instruction - Revision)
(Notes on Use - Revision)
MACH-CR 19.37 Assault of a Law Enforcement Officer, Emergency Personnel or Probation and Parole Officer in the Second
Degree: Class C Felony
(Title - Revision)
(Charge - Revision)
(Notes on Use - Revision)
MAI-CR 3d 319.37 Assault of a Law Enforcement Officer, Emergency Personnel or Probation and Parole Officer in the Second
Degree: Class C Felony
(Title - Revision)
(Instruction - Revision)
(Notes on Use - Revision)
MACH-CR 19.38 Assault of a Law Enforcement Officer, Emergency Personnel or Probation and Parole Officer in the Second
Degree: Driving While Intoxicated
(Title - Revision)
(Charge - Revision)
(Notes on Use - Revision)
MAI-CR 3d 319.38 Assault of a Law Enforcement Officer, Emergency Personnel or Probation and Parole Officer in the Second
Degree: Driving While Intoxicated
(Title - Revision)
(Instruction - Revision)
(Notes on Use - Revision)
MACH-CR 19.39 Assault of a Law Enforcement Officer, Emergency Personnel or Probation and Parole Officer in the Third
Degree
(Title - Revision)
(Charge - Revision)
(Notes on Use - Revision)
MAI-CR 3d 319.39 Assault of a Law Enforcement Officer, Emergency Personnel or Probation and Parole Officer in the Third
Degree
(Title - Revision)
(Instruction - Revision)
(Notes on Use - Revision)
MACH-CR 19.58 Child Kidnapping
(Charge - New)
(Notes on Use - New)
MAI-CR 3d 319.58 Child Kidnapping
(Instruction - New)
(Notes on Use - New)
MACH-CR 22.11 Endangering the Welfare of a Child in the Second Degree
(Charge - Unchanged)
(Notes on Use - Revision)
MAI-CR 3d 322.11 Endangering the Welfare of a Child in the Second Degree
(Instruction - Unchanged)
(Notes on Use - Revision)
MACH-CR 23.06 Arson in the First Degree
(Charge - Revision)
(Notes on Use - Revision)
MAI-CR 3d 323.06 Arson in the First Degree
(Instruction - Revision)
(Notes on Use - Revision)
MACH-CR 23.20 Tampering in the First Degree: Utility Services, etc.
(Charge - Unchanged)
(Notes on Use - Revision)
MAI-CR 3d 323.20 Tampering in the First Degree: Utility Services, etc.
(Instruction - Unchanged)
(Notes on Use - Revision)
MACH-CR 23.22 Tampering in the First Degree: Motor Vehicle, etc.
(Charge - Unchanged)
(Notes on Use - Revision)
MAI-CR 3d 323.22 Tampering in the First Degree: Motor Vehicle, etc.
(Instruction - Revision)
(Notes on Use - Revision)
MACH-CR 23.24 Tampering in the Second Degree
(Charge - Revision)
(Notes on Use - Revision)
MAI-CR 3d 323.24 Tampering in the Second Degree: Causing Substantial Inconvenience
(Instruction - Unchanged)
(Notes on Use - Revision)
MAI-CR 3d 323.26 Tampering in the Second Degree: Riding in a Vehicle
(Instruction - Unchanged)
(Notes on Use - Revision)
MAI-CR 3d 323.28 Tampering in the Second Degree: Property of Utility
(Instruction - Unchanged)
(Notes on Use - Revision)
MACH-CR 24.02.1 Stealing: Without Consent
(Charge - Revision)
(Notes on Use - Revision)
MAI-CR 3d 324.02.1 Stealing: Without Consent
(Instruction - Revision)
(Notes on Use - Revision)
MACH-CR 24.02.2 Stealing: By Deceit
(Charge - Revision)
(Notes on Use - Revision)
MAI-CR 3d 324.02.2 Stealing: By Deceit
(Instruction - Revision)
(Notes on Use - Revision)
MACH-CR 24.02.3 Stealing: By Coercion
(Charge - Revision)
(Notes on Use - Revision)
MAI-CR 3d 324.02.3 Stealing: By Coercion
(Instruction - Revision)
(Notes on Use - Revision)
MACH-CR 24.10 Receiving Stolen Property
(Charge - Revision)
(Notes on Use - Revision)
MAI-CR 3d 324.10 Receiving Stolen Property
(Instruction - Unchanged)
(Notes on Use - Revision)
MACH-CR 24.30.1 Passing Bad Checks: With Purpose to Defraud: Insufficient Funds
(Charge - Revision)
(Notes on Use - Revision)
MAI-CR 3d 324.30.1 Passing Bad Checks: With Purpose to Defraud: Insufficient Funds
(Instruction - Revision)
(Notes on Use - Revision)
MACH-CR 24.30.2 Passing Bad Checks: With Purpose to Defraud: Nonexistent Drawee
(Charge - Revision)
(Notes on Use - Revision)
MAI-CR 3d 324.30.2 Passing Bad Checks: With Purpose to Defraud: Nonexistent Drawee
(Instruction - Revision)
(Notes on Use - Revision)
MACH-CR 24.30.3 Passing Bad Checks: With Purpose to Defraud: No Account
(Charge - Revision)
(Notes on Use - Revision)
MAI-CR 3d 324.30.3 Passing Bad Checks: With Purpose to Defraud: No Account
(Instruction - Revision)
(Notes on Use - Revision)
MACH-CR 24.30.4 Passing Bad Checks: Ten Day Notice
(Charge - Revision)
(Notes on Use - Revision)
MAI-CR 3d 324.30.4 Passing Bad Checks: Ten Day Notice
(Instruction - Revision)
(Notes on Use - Revision)
MACH-CR 24.42 Identity Theft
(Charge - Revision)
(Notes on Use - Revision)
MAI-CR 3d 324.42 Identity Theft
(Instruction - Unchanged)
(Notes on Use - Revision)
MACH-CR 24.62.1 Financial Exploitation of the Elderly or Disabled: By Deception
(Charge - New)
(Notes on Use - New)
MAI-CR 3d 324.62.1 Financial Exploitation of the Elderly or Disabled: By Deception
(Instruction - New)
(Notes on Use - New)
MACH-CR 24.62.2 Financial Exploitation of the Elderly or Disabled: By Intimidation
(Charge - New)
(Notes on Use - New)
MAI-CR 3d 324.62.2 Financial Exploitation of the Elderly or Disabled: By Intimidation
(Instruction - New)
(Notes on Use - New)
MACH-CR 24.62.3 Financial Exploitation of the Elderly or Disabled: By Force
(Charge - New)
(Notes on Use - New)
MAI-CR 3d 324.62.3 Financial Exploitation of the Elderly or Disabled: By Force
(Instruction - New)
(Notes on Use - New)
MACH-CR 29.60 Resisting or Interfering with Arrest
(Charge - Unchanged)
(Notes on Use - Revision)
MAI-CR 3d 329.60 Resisting or Interfering with Arrest
(Instruction - Unchanged)
(Notes on Use - Revision)
MACH-CR 29.61 Resisting or Interfering with a Lawful Stop or Detention
(Charge - Revision)
(Notes on Use - Revision)
MAI-CR 3d 329.61 Resisting or Interfering with a Lawful Stop or Detention
(Instruction - Revision)
(Notes on Use - Revision)
MACH-CR 29.86 Tampering with a Witness
(Charge - Revision)
(Notes on Use - Revision)
MAI-CR 3d 329.86 Tampering with a Witness
(Instruction - Revision)
(Notes on Use - Revision)
MACH-CR 31.02 Driving While Intoxicated
(Charge - Revision)
(Notes on Use - Revision)
MAI-CR 3d 331.02 Driving While Intoxicated
(Instruction - Unchanged)
(Notes on Use - Revision)
MACH-CR 31.04 Driving with Excessive Blood Alcohol Content
(Charge - Revision)
(Notes on Use - Revision)
MAI-CR 3d 331.04 Driving with Excessive Blood Alcohol Content
(Instruction - Unchanged)
(Notes on Use - Revision)
MACH-CR 31.38 Operating a Vessel with Excessive Blood Alcohol Content
(Charge - Unchanged)
(Notes on Use - Revision)
MAI-CR 3d 331.38 Operating a Vessel with Excessive Blood Alcohol Content
(Instruction - Revision)
(Notes on Use - Revision)
MACH-CR 32.02 Armed Criminal Action
(Charge - Revision)
(Notes on Use - Revision)
MAI-CR 3d 332.02 Armed Criminal Action
(Instruction - Revision)
(Notes on Use - Revision)
MACH-CR 32.42 Possession of Intoxicating Liquor by a Minor, Purchase of Intoxicating Liquor by a Minor, Visible Intoxication
or Excessive BAC
(Title - Revision)
(Charge - Revision)
(Notes on Use - Revision)
MAI-CR 3d 332.42 Possession of Intoxicating Liquor by a Minor, Purchase of Intoxicating Liquor by a Minor, Visible
Intoxication or Excessive BAC
(Title - Revision)
(Instruction - Revision)
(Notes on Use - Revision)
MACH-CR 32.43 Property Owner: Allowing Minor to Drink or Possess Intoxicating Liquor
(Charge - New)
(Notes on Use - New)
MAI-CR 3d 332.43 Property Owner: Allowing Minor to Drink or Possess Intoxicating Liquor
(Instruction - New)
(Notes on Use - New)
MACH-CR 32.48 Driving While License Suspended, Revoked or Canceled
(Charge - Revision)
(Notes on Use - Revision)
MAI-CR 3d 332.48 Driving While License Suspended, Revoked or Canceled
(Instruction - Unchanged)
(Notes on Use - Revision)
MAI-CR 3d 333.00 Definitions - Specific
(Revision)
ORDER
1. Revisions and additions to previously approved pattern criminal indictments and informations (MACH -CR) as listed above, having been prepared by the Committee on Procedure in Criminal Cases and reviewed by the Court, are hereby adopted and approved.
2. Revisions and additions to previously approved criminal instructions and Notes on Use (MAI-CR 3d) as listed above, having been prepared by the Committee on Procedure in Criminal Cases and reviewed by the Court, are hereby adopted and approved.
3. The revisions and additions as set forth in the specific exhibits attached hereto must be used and followed on and after January 1, 2007, and may be used and followed prior thereto, and any such use shall not be presumed to be error.
4. It is further ordered that the above Table of Instructions and this Order, without the specific exhibits attached hereto, be published in the Journal of The Missouri Bar and the South Western Reporter.
Day - to - Day
Mary R. Russell
Acting Chief Justice
SUPREME COURT OF MISSOURI
en banc
October 31, 2006
Effective January 1, 2007
IN RE: REVISIONS TO MAI-CIVIL
TABLE OF INSTRUCTIONS
MAI 2.01 EXPLANATORY INSTRUCTION FOR ALL CASES
(Committee Comment – Revision)
MAI 11.06 DEFINITIONS – NEGLIGENCE – HEALTHCARE PROVIDERS
(Committee Comment – Revision)
MAI 23.05 VERDICT DIRECTING – FRAUDULENT MISREPRESENTATIONS
(Instructions – Revision)
(Notes on Use – Revision)
(Committee Comment – Revision)
MAI 31.24 VERDICT DIRECTING – EMPLOYMENT DISCRIMINATION – MISSOURI HUMAN RIGHTS ACT
(Notes on Use – Revision)
MAI 31.26 VERDICT DIRECTING – NEGLIGENT MISREPRESENTATION
(Instructions – New)
(Notes on Use – New)
(Committee Comment – New)
O R D E R
1. Additions and revisions of previously approved MAI-CIVIL Instructions, Notes on Use and Committee Comments as listed above, having been prepared by the Committee on Jury Instructions - Civil and reviewed by the Court, are hereby adopted and approved.
2. The Instructions, Notes on Use and Committee Comments revised as set forth in the specific exhibits attached hereto must be used on and after January 1, 2007, and may be used prior thereto; any such use shall not be presumed to be error.
3. It is further ordered that this order and the specific exhibits attached hereto shall be published in the South Western Reporter and the Journal of The Missouri Bar.
Day - to - Day
_____________________________ MICHAEL A. WOLFF
Chief Justice
2.01 [2006 Revision] Explanatory Instruction For All Cases
Committee Comment (2007 Revision)
(Approved October 31, 2006; Effective January 1, 2007)
Directions or admonitions:
Directions or admonitions given by a trial judge to a jury during the course of trial are technically not instructions. Examples of such directions or admonitions include a direction not to visit the scene of an accident or an oral repetition of the admonition to refrain from discussing the case during a recess. Considerable discretion is afforded to the trial judge, subject to appropriate requests or objections of counsel, to determine the scope and frequency of such directions or admonitions. An appropriate admonition may be in the following form and may be given orally.
Justice requires that you not make up your mind about the case until all of the evidence has been seen and heard. You must not discuss this case among yourselves or with anyone else or comment on anything you hear or learn in this trial until the case is concluded and you retire to the jury room for your deliberations. Also, you must not remain in the presence of anyone who is discussing the case when the court is not in session. You should not consult the Internet concerning the issues in this case or conduct any other research or investigation on your own.
Cell phones or other electronic devices: The trial court has considerable discretion regarding the use of cell phones or other electronic devices in the courthouse and during trial. Judicial discretion may be exercised by oral admonition, the addition of a paragraph regarding such devices at the end of MAI 2.01, or using a separate instruction.
Other appropriate admonitions or directions to the jury may be formulated and given by the trial judge as determined in light of the particular facts or circumstances of a given date.
Juror note-taking:
Supreme Court Rules 69.03 provides:
Upon the court’s own motion or upon the request of any party, the court shall permit jurors to take notes. If jurors are permitted to take notes, the court shall supply each juror with suitable materials.
Jurors shall not take their notes out of the courtroom except to use their notes during deliberations immediately before discharge of the jury.
The court should collect all juror notes.
After the jury is discharged, the court shall destroy the notes promptly without permitting their review by the court or any other person.
Juror notes shall not be used to impeach a verdict.
Distribution of instructions:
Rule 70.02(f) requires that the final instructions of the court be given to the jury in writing. While Rule 70.02 does not explicitly require that each juror be provided with a copy of the final instructions, such approach is implicitly permitted. In its report to the Supreme Court of October 2000, the Civil Jury Study Committee recommended “that each juror be given a copy of the instructions before instruction reading, final argument, and deliberation.” (Emphasis supplied.) That committee also noted that juror “understanding increased significantly when each juror received his or her own copy of the instructions.” The MAI Committee encourages compliance with this recommendation whenever feasible.
11.06 [1990 Revision] Definitions—Negligence—Health Care Providers
Committee Comment (2007 Revision)
(Approved October 31, 2006; Effective January 1, 2007)
This instruction conforms to the Court’s holding in Gridley v. Johnson, 476 S.W.2d 475 (Mo. 1972), where the Court approved of the deletion from the former instruction of the words “in good standing” and did away with the locality rule in medical malpractice cases.
This instruction has been used to define “negligence” of certain other professions. See Annen v. Trump, 913 S.W.2d 16 (Mo.App. 1995)(engineer’s design); Davidson v. Otis Elevator Company, 811 S.W.2d 802, (Mo.App. 1991)(elevator inspection and repair); and Yantzie v. Norton, 927 S.W.2d 427 (Mo.App. 1996)(foundation inspection). MAI 11.06 may be modified for other professions if appropriate.
23.05 [2007 Revision] Verdict Directing – Fraudulent Misrepresentations
(Approved October 31, 2006; Effective January 1, 2007)
Your verdict must be for plaintiff if you believe:
First, defendant (describe act such as “represented to plaintiff that the motor vehicle was never in an accident”), and
Second, such representation was made by defendant with the intent that plaintiff rely on such representation in (purchasing the motor vehicle), and
Third, the representation was false, and
Fourth, [defendant knew that it was false] [defendant knew that it was false at the time the representation was made] [defendant made the representation without knowing whether it was true or false]1, and
Fifth, the representation was material to the (purchase of the motor vehicle), and
Sixth, plaintiff relied on the representation in (making the purchase) and such reliance was reasonable under the circumstances, and
Seventh, as a direct result of such representation, plaintiff sustained damage.
[unless you believe plaintiff is not entitled to recover by reason of Instruction Number _____ (here insert number of affirmative defense instruction)].
Notes on Use (2007 Revision)
(Approved October 31, 2006; Effective, January 1, 2007)
1. Select the appropriate phrase. The second alternate for Paragraph Third is required to submit a misrepresentation of a future event. The third alternate is not appropriate for submission of a misrepresentation of a future event. See Klecker v. Sutton, 523 S.W.2d 558 (Mo. App. 1975), and Wolk v. Churchill, 696 F.2d 621 (8th Cir.1982).
*Add if affirmative defense is submitted.
Committee Comment (2007 Revision)
(Approved October 31, 2006; Effective January 1, 2007)
For negligent misrepresentations, see MAI 31.26.
Where agency is in issue see MAI 18.01
Wengert v. Thomas L. Meyer, 152 S.W.3d 379 (Mo.App. 2004) involves negligent failure to disclose a water drainage problem. This instruction should not be used to submit a misrepresentation by omission (fraudulent or negligent) contemplated by Restatement (Second) Torts §551.
For a discussion of the distinction between negligent misrepresentation and reckless disregard for truth or falsity (as submitted by MAI 23.05), see Colgan v. Washington Realty, 879 S.W.2d at 689, n. 1 (Mo.App. 1994).
The Restatement (Second) Torts distinguishes between misrepresentations that cause pecuniary loss (§551 and §552) and those that result in physical injury (§311). MAI 23.05 and MAI 31.26 are intended to apply to “pecuniary loss” cases.
1. The elements of an action for fraudulent representation are listed in John T. Brown, Inc. v. Weber Implement & Auto Co., 260 S.W.2d 751, 755 (Mo. 1953) as follows:
“It was essential to a recovery to establish a representation; its falsity; its materiality; the speaker’s knowledge of its falsity; his intent that it be acted on by the hearer and in the manner reasonably contemplated; that hearer’s ignorance of its falsity; his reliance on its truth; his right to reply thereon; and his consequent and proximate injury. A failure to establish any one of these elements is fatal to a recovery.”
See also Joel Bianco Kawasaki Plus v. Meramec Valley Bank, 81 S.W. 3d 528, 536 (Mo. banc 2002).
2. To recover for fraudulent representations, it is not necessary that it be shown that defendant had actual knowledge of the falsity of the facts stated by him. It is sufficient that he made the representations with the consciousness that he was without knowledge as to their truth or falsity, when in fact, they were false. See Wilson v. Murch, 354 S.W.2d 332, 338 (Mo.App. 1962). However, if a verdict directing instruction submits in the alternative that defendant knowingly made false representations and that defendant made the representations without knowing whether they were true of false, there must be evidence to support both theories. See Emily v. Bayne, 371 S.W.2d 663 (Mo.App. 1963).
3. Although the basic elements of fraudulent misrepresentation have long been settled and a plaintiff must show that he had a right to rely on the misrepresentation, more recent case law puts less emphasis on the “duty to investigate,” In Orlann v. Laederich, 338 Mo. 783, 791, 92 S.W.2d 190, 194 (1936), the Court quotes from McCaw v. O’Malley, 298 Mo. 783 Mo. 401, 249 S.W. 41, 44 (1923), which said: “ . . . the burden is upon the plaintiff . . . to establish by proof that there was not only a false representation, but that he relied upon it, and that such reliance ‘was an act of ordinary, prudence’, and that such representations thus prudently relied upon influenced plaintiff to his damage.” This language has never been expressly overruled although it seems to have been tempered by later causes.
In Meyer v. Brown, 312 S.W.2d 158, 161 (Mo.App. 1958), the court quoted with approval 37 CJS Fraud §34, pp. 279-80:
“However, the mere presence of opportunities for investigation will not of itself preclude the right of reliance; and this is especially true where the circumstances were such that a prudent man would not have been put on inquiry, as where positive statements were made in a manner not calculated to cause inquiry, where the relations between the parties were involuntary, where, although it was possible to ascertain the facts, an investigation would have been difficult, or where there was intentional fraud, as where the representations were made for the very purpose of preventing inquiry;’ . . ..”
In Schechter v. Brewer, 344 S.W.2d 784, 788 (Mo.App. 1961), the court said: “The tendency of modern decisions is not to extend, but to restrict the rule requiring diligence, and similar rules, such as caveat emptor, and the rule granting immunity for dealers talk; to condemn the falsehood of the fraud feasor rather than the credulity of his victim . . .. Since the very purpose of fraud is to cheat its victim by making him neglect the case essential to prevent injury, to deny relief because the victim was negligent would encourage the evil.”
See also Keefhaver v. Kimbrell, 58 S.W.3d 54 (Mo.App. 2001), which discusses the duty to investigate in the context of the sale of a home and which also deals with the issue of misrepresentation by silence or concealment where the silent party has a duty to speak.
Restatement (Second) of Torts §541 (1977) expresses the rule as follows: “The recipient of a fraudulent misrepresentation is not justified in relying upon its truth if he knows that it is false or its falsity is obvious to him.”
Cases involving multiple misrepresentations.
Submission of multiple representations in a single verdict directing instruction may create a problem in determining whether all requisite elements (i.e., falsity, materiality, knowledge, etc.) have been found as to the same representation. A possible approach would be to submit a separate verdict directing instruction as to each alleged misrepresentation, all in a single package with a single damage instruction and a single verdict form.
31.24 [2005 New] Verdict Directing- Employment Discrimination – Missouri Human Rights Act
Notes on Use (2007 Revision)
(Approved October 31, 2006; Effective January 1, 2007)
1. If the evidence in the case demonstrates a course of conduct or harassment constituting discrimination on any grounds contained in § 213.055, RSMo, then paragraph First of this instruction may be appropriately modified.
*Add if affirmative defense is submitted.
This bracketed phrase should not be used to submit lawful justification under MAI 31.25.
31.26 [2007 New] Verdict Directing – Negligent Misrepresentation
(Approved October 31, 2006; Effective January 1, 2007)
Your verdict must be for plaintiff if you believe:
First, defendant in the course of his [business] [profession] [employment]1
(describe act such as “represented to plaintiff that the motor vehicle was never in an accident”), and
Second, such representation was made by defendant with the intent that plaintiff rely on such representation in (purchasing the motor vehicle), and
Third, such representation was material to the (purchase of the motor vehicle), and
Fourth, such representation was false, and
Fifth, defendant failed to use ordinary care2 in making such representation, and
Sixth, plaintiff relied on such representation in (making the purchase) and such reliance was reasonable under the circumstances, and
Seventh, as a direct result of such representation, plaintiff sustained damage.
* [unless you believe plaintiff is not entitled to recover by reason of Instruction Number __________ (here insert number of affirmative defense instruction)].
Notes On Use (2007 New)
(Approved October 31, 2006; Effective January 1, 2007)
1. Select the appropriate phrase. If the transaction is one involving some other "pecuniary interest” of the defendant as that phrase is used in Restatement (Second) Torts §552 (1977), insert an appropriate phrase.
2. The phrase “ordinary care” must be defined. See definitions in MAI Chapter 11.00.
*Add if affirmative defense is submitted.
Committee Comment (2007 New)
(Approved October 31, 2006; Effective January 1, 2007)
For fraudulent misrepresentation, see MAI 23.05
Where agency is in issue, see MAI 18.01.
This instruction results from the adoption of Restatement (Second) Torts §552 (1977) in the cases of Colgan v. Washington Realty Co., 879 S.W.2d 686 (Mo.App. (1994); Kesselring v. St. Louis Group, Inc., 74 S.W.3d 809, 813 (Mo.App. 2002); and the discussion of the verdict directing instruction in Gurley v. Montgomery First National Bank, 160 S.W.3d 863 (Mo.App. 2005).
Unlike Restatement (Second) Torts §551 (1977) (which deals with misrepresentation by omission), §552 is not limited to business transactions. It takes into account any transaction involving a pecuniary interest.
The elements of the cause of action as set forth in Colgan v. Washington Realty, 879 S.W.2d 686, 689, are:
(1) speaker supplied information in the course of his/her business or because of some other pecuniary interest;
(2) due to speaker’s failure to exercise reasonable care or competence in obtaining or communicating this information, the information was false;
(3) speaker intentionally provided the information for the guidance of a limited group of persons in a particular business transaction;
(4) listener justifiably relied on the information; and
(5) as a result of listener’s reliance on the statement, he/she suffered a pecuniary loss.
Wengert v. Thomas L. Meyer, 152 S.W.3d 379 (Mo.App. 2004), involves negligent failure to disclose a water drainage problem. This instruction should not be used to submit a misrepresentation by omission (fraudulent or negligent) contemplated by Restatement (Second) Torts §551.
For a discussion of the distinction between negligent misrepresentation and reckless disregard for truth or falsity (as submitted by MAI 23.05), see Colgan, 879 S.W.2d at 689, n.1.
The Restatement (Second) Torts distinguishes between misrepresentations that cause pecuniary loss (§551 and §552) and those which result in physical injury (§311). MAI 23.05 and MAI 31.26 are intended to apply to “pecuniary loss” cases.
Cases involving multiple misrepresentations.
Submission of multiple representations in a single verdict directing instruction may create a problem in determining whether all requisite elements (i.e. falsity, materiality, knowledge, etc.) have been found as to the same representation. A possible approach would be to submit a separate verdict directing instruction as to each alleged misrepresentation, all in a single package with a single damage instruction and a single verdict form.