Supreme Court of Missouri
en banc

TABLE OF INSTRUCTIONS
MAI 23.14 VERDICT DIRECTING – EMPLOYEE’S BREACH OF DUTY

OF LOYALTY

(Instruction – New)
(Notes on Use – New)
(Committee Comment – New)

MAI 2.01 EXPLANATORY INSTRUCTION FOR ALL CASES
(Instruction - Revision)
(Committee Comment – Revision)


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, 2006, 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


MAI 23.14 [2006 New] VERDICT DIRECTING — EMPLOYEE’S BREACH
OF DUTY OF LOYALTY
Your verdict must be for plaintiff if you believe:

First, defendant was employed by plaintiff, and
Second, while so employed, defendant (here describe the act(s) alleged to be beyond mere planning and preparation for a competing enterprise that constitute direct competition with the plaintiff), and
Third, defendant thereby1 went beyond mere planning and preparation and acted in direct competition with plaintiff, and
Fourth, as a direct result of such conduct, plaintiff sustained damage.

*[unless you believe plaintiff is not entitled to recover by reason of Instruction No. _____

(here insert number of affirmative defense instruction)].

1. If multiple acts are submitted, Paragraph Third should begin, “Third, defendant, in any one or more of the respects submitted in Paragraph Second, thereby. . . 2. Select the appropriate phrase.  
*Add if affirmative defense is submitted.

In the case of Nat’l Rejectors Inc. v. Triemann, 409 S.W.2d 1, 41 (Mo. banc 1966), the Court, drawing on Restatement (2d) of Agency, implicitly recognized a separate cause of action for the breach of the duty of loyalty in the employer-employee relationship.  See Scanwell Freight Express STL, Inc., v. Chan, 162 S.W.3d 477 (Mo. banc 2005).  In Scanwell, the Court noted that in broad general terms an employee must not act contrary to the employer’s interest.  While an employee is allowed to agree with other employees to compete with their then employer upon termination of their employment, “it necessarily follows that a breach arises when the employee goes beyond the mere planning and preparation and actually engages in direct competition, which, by definition, is to gain advantage over the competitor.”  Scanwell at 479.
Restatement (2d) of Agency, section 393, cmt. e, further describes the kind of activities that can constitute a breach of duty of loyalty: “After termination of his agency, in the absence of restrictive agreement, the agent can properly compete with his principal as to matters for which he has been employed.  See section 396.  Even before the termination of the agency, he is entitled to make arrangements to compete, except that he cannot properly use confidential information peculiar to his employer’s business and acquired therein.  Thus, before the end of his employment, he can properly purchase a rival business and upon termination of employment immediately compete.  He is not, however, entitled to solicit customers for such rival business before the end of his employment nor can he properly do other similar ads in direct competition with the employer’s business.”

MAI 2.01 [2006 REVISION] EXPLANATORY INSTRUCTION FOR ALL CASES
(1) GENERAL - JURY INSTRUCTIONS
This instruction and other instructions that I will read to you near the end of this trial are in writing.  All of the written instructions will be handed to you for guidance in your deliberation when you retire to the jury room.  They will direct you concerning the legal rights and duties of the parties and how the law applies to the facts that you will be called upon to decide.
(2) OPENING STATEMENTS
The trial may begin with opening statements by the lawyers as to what they expect the evidence to be.  What is said in opening statements is not to be considered as proof of a fact.  However, if a lawyer admits some fact on behalf of his client, the other party is relieved of the responsibility of proving that fact.
(3) EVIDENCE
After the opening statements, the plaintiff(s) will introduce evidence.1  The defendant(s) may then introduce evidence.  There may be rebuttal evidence after that.  The evidence may include the testimony of witnesses who may not appear personally but whose testimony may be read or shown to you and exhibits, such as pictures, documents and other objects.
(4) OBJECTIONS
There may be some questions asked or evidence offered by the parties to which objections may be made.  If I overrule an objection, you may consider that evidence when you deliberate on the case.  If I sustain an objection, then that matter and any matter I order to be stricken is excluded as evidence and must not be considered by you in your deliberations.
(5) RULINGS OF LAW AND BENCH CONFERENCES
While the trial is in progress, I may be called upon to determine questions of law and to decide whether certain matters may be considered by you under the law.  No ruling or remark that I make at any time during the trial will be intended or should be considered by you to indicate my opinion as to the facts.  There may be times when the lawyers come up to talk to me out of your hearing.  This will be done in order to permit me to decide questions of law.  These conversations will be out of your hearing to present issues of law, which I must decide, from becoming mixed with issues of fact, which you must decide.  We will not be trying to keep secrets from you.
(6) OPEN MINDS AND NO PRELIMINARY DISCUSSIONS
Justice requires that you keep an open mind about the case until the parties have had the opportunity to present their case to you.  You must not make up your mind about the case until all evidence, and the closing arguments of the parties, have been seen or heard.  You must not comment on or discuss with anyone, not even among yourselves, what you hear or learn in trial until the case is concluded and then only when all of you are present in the jury room for deliberation of the case under the final instructions I give to you.
(7) OUTSIDE INFLUENCES
During the trial you should not remain in the presence of anyone who is discussing the case when the court is not in session.  Otherwise some outside influence or comment might influence a juror to make up his/her mind prematurely and be the cause of a possible injustice.  For this reason, the lawyers and their clients are not permitted to talk with you until the trial is completed.
(8) JUROR RESEARCH PROHIBITED
Your decision must be based only on the evidence presented to you in the proceedings in this courtroom.  You should not conduct your own research or investigation into any issues in this case.  You should not visit the scene of any of the incidents described in this case.  You should not conduct any independent research of any type by reference to textbooks, dictionaries, magazines, the use of the Internet or any other means.
(9) FINAL INSTRUCTIONS
After all of the evidence has been presented, you will receive my final instructions.  They will guide your deliberations of the issues of fact you are to decide in arriving at your verdict.
(10) CLOSING ARGUMENTS
After you have received my final instructions, the lawyers may make closing arguments.  In closing arguments, the lawyers have the opportunity to direct your attention to the significance of evidence and to suggest the conclusions that may be drawn from the evidence.
(11) DELIBERATIONS
You will then retire to the jury room for your deliberations.  It will be your duty to select a foreperson, to decide the facts and to arrive at a verdict.  When you enter into your deliberations, you will be considering the testimony of witnesses as well as other evidence.  In considering the weight and value of the testimony of any witness, you may take into consideration the appearance, attitude and behavior of the witness, the interest of the witness in the outcome of the case, the relation of the witness to any of the parties, the inclination of the witness to speak truthfully or untruthfully and the probability or improbability of the witness’ statements.  You may give any evidence or the testimony of any witness such weight and value as you believe that evidence or testimony is entitled to receive.
[(12) NOTETAKING
Each of you may take notes in this case, but you are not required to do so.  I will give you notebooks.  Any notes you take must be in those notebooks only.  You may not take any notes out of the courtroom before the case is submitted to you for your deliberations.  No one will read your notes while you are out of the courtroom.  If you choose to take notes, remember that notetaking may interfere with your ability to observe the evidence and witnesses as they are presented.
Do not discuss or share your notes with anyone until you begin your deliberations.  During the deliberations, if you choose to do so, you may use your notes and discuss them with other jurors.  Notes taken during trial are not evidence.  You should not assume that your notes, or those of other jurors, are more accurate than your own recollection or the recollection of other jurors.
After you reach your verdict your notes will be collected and destroyed.  No one will be allowed to read them.]2

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.

Other appropriate oral 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.
Supreme Court Rule 69.03 provides:
Juror Note-taking

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.
The court shall collect all juror notes immediately before discharge of the jury.
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.

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.