Supreme Court of Missouri
en banc

TABLE OF INSTRUCTIONS
MAI 2.07 EXPLANATORY – INSURANCE, BENEFITS
(Instruction – New)
(Committee Comment – New)

MAI 4.04 DAMAGES – QUANTUM MERUIT

(Committee Comment – Revision)

MAI 23.04 VERDICT DIRECTING – FALSE IMPRISONMENT
(Committee Comment – Revision)

MAI 31.24 VERDICT DIRECTING – EMPLOYMENT DISCRIMINATION –
MISSOURI HUMAN RIGHTS ACT
(Committee Comment - Revision)

1.  Revisions of previously approved MAI-CIVIL Instructions 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 and Committee Comments revised as set forth in the specific exhibits attached hereto must be used on and after July 1, 2012, 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.

       
2.07 [2011 New]  Explanatory – Insurance, Benefits


The existence or non-existence of any type of insurance, benefit, right or obligation of repayment, public or private, must not be considered or discussed by any of you in arriving at your verdict.  Such matters are not relevant to any of the issues you must decide in this case.


This is not a mandatory instruction.  In some cases it may be appropriate, in the discretion of the trial judge, to give the instruction as part of the general instruction packet.  In other cases, it may be more appropriate to reserve this instruction as a response to a question by the jury during deliberations.

There may also be cases in which this instruction would not be appropriate, such as bad faith insurance cases, vexatious refusal to pay cases, and insurance coverage cases.  There may be other situations in which this instruction would not be appropriate.



4.04 [1981 Revision] Damages—Quantum Meruit


Section 408.020, RSMo, states:

Creditors shall be allowed to receive interest at the rate of nine percent per annum, when no other rate is agreed upon, for all moneys after they become due and payable, on written contracts, and on accounts after they become due and demand for payment is made; for money recovered for the use of another, and retained without the owner's knowledge of the receipt, and for all other money due or to become due for the forbearance of payment whereof an express promise to pay interest has been made.

In Weekley v. Wallace, 314 S.W.2d 256, 257 (Mo. App. 1958), the court said:

But a demand is essential to the right to recover interest on such accounts.  [Citing cases.]  The demand need be in no certain form, but must be definite as to amount and time.  [Citing cases.]  In the absence of such a demand for payment of an unwritten account, the filing of the suit substitutes for the previous demand, and starts the interest-bearing period, to be computed as of the date of the verdict.

See also Koppe v. Campbell, 318 S.W.3d. 233, 244 (Mo. App. 2010), in which the court stated:

Nonetheless, Respondents assert that the trial court was correct in granting the motion for new trial because Koppe made no demand for payment of a specific amount, either prior to trial or in his petition.  While Respondents are correct that Koppe made no specific demand, their conclusion that this failure precludes prejudgment interest in this case is erroneous.  This is so because "[a]s to the requirement that a party make a demand for payment, even if a demand for payment was not made prior to filing a lawsuit, the filing itself constitutes a demand."  Hawk Isolations Group, Inc. v. Morris, 288 S.W.3d. 758, 762 (Mo. App. E.D. 2009).

If plaintiff elects to sue in quantum meruit even though he has an express contract, he may not recover a sum in excess of his contract price. Cross v. Robinson, 281 S.W.2d 22, 26 (Mo. App. 1955).

For recovery of attorney's fees under quantum meruit and a general discussion regarding the recovery of prejudgment interest, see Koppe, 318 S.W.3d at 244.

23.04 [1983 Revision]  Verdict Directing – False Imprisonment


Although similar in some respects, the elements of a claim for false imprisonment are different from those of a claim for malicious prosecution. See MAI 23.07 for submission of malicious prosecution.

False imprisonment occurs when there is a "confinement, without legal justification, by the wrongdoer of the person wronged."  Highfill v. Hale, 186 S.W.3d 277, 280 (Mo. banc 2006); see also, Gibbs v. Blockbuster, Inc., 318 S.W.3d 157 (Mo. App. 2010).  A person may be liable for false imprisonment if he knowingly encourages, causes, promotes, or instigates the arrest of another, such as providing information that forms the basis of a subsequent unlawful arrest.  Highfill, 186 S.W.3d at 280.  A person who merely states facts to a law enforcement officer, while leaving it to the officer's discretion to act on such information, is not liable for false imprisonment.  Highfill, 186 S.W.3d at 280.  And "no action for false imprisonment may be maintained for an arrest which is lawful, no matter at whose instigation nor for what motive the arrest was made."  Routh v Burlington Northern R. Co., 708 S.W.2d 211, 216 (Mo. App. 1986).

In cases involving detention by a merchant, see § 537.125, RSMo.

31.24 [2005 New] Verdict Directing - Employment Discrimination – Missouri Human
Rights Act
 
Section 213.055, RSMo, Unlawful Employment Practices, provides in part:

1.  It shall be an unlawful employment practice:

(1)  For an employer, because of the race, color, religion, national origin, sex, ancestry, age or disability of any individual:

(a)  To fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, national origin, sex, ancestry, age or disability;

In State ex rel. Diehl v. O’Malley, 95 S.W.3d 82 (Mo. banc 2003), the Supreme Court of Missouri held that there is a right to a jury trial in actions for damages under the Missouri Human Rights Act, section 213.055, RSMo et seq.

"Garden variety" emotional distress under the Missouri Human Rights Act, section 213.055, RSMo et seq., need not be supported by expert testimony.  State ex rel. Laurie Dean v. The Honorable Jon A. Cunningham, 182 S.W.3d 561 (Mo. banc 2006).
     
Day - to - Day

_____________________________
MARY R. RUSSELL
Acting Chief Justice