Abshire v. Nordson Corp.

SMITH, Judge.

Plaintiffs appeal from a jury verdict against them in a products liability case. Plaintiff-husband sustained serious injuries as the result of a fire at his place of employment. Wife sought damages for loss of consortium. Plaintiffs brought suit against defendant Nordson Corporation, the supplier of electrostatic paint spraying equipment, and Don V. Davis Company, the supplier of toluol. The fire was caused by the interaction of the equipment and the chemical. Both defendants were charged with supplying an unreasonably dangerous product without warnings of the danger. The jury returned its verdict in favor of both defendants. Following appeal plaintiffs settled with the Davis Company, so only the appeal from the jury verdict in favor of Nordson is before us.

The sole attack on appeal is directed to defendant’s converse instructions to each plaintiffs verdict-directing instruction.1 The verdict-director (MAI 25.05 modified by 19.01) hypothesized the sale of the product by defendant, that it was unreasonably dangerous when used as anticipated, that defendant failed to give adequate warning of the danger, that the product was used in the anticipated manner and:

“... the sale of the electrostatic paint spraying system without an adequate warning directly caused or directly contributed to cause damage to plaintiff, Jack Abshire.”

Nordson utilized a true converse instruction (MAI 33.01, 33.04(4)) which stated:

“Your verdict must be for defendant Nordson Corporation on the claim of plaintiff Jack Abshire, unless you believe said defendant did not give an adequate warning of the danger and as a direct result of such failure, plaintiff Abshire sustained damage.”

*2Plaintiffs contend that the utilization of the “direct result” language served to mislead the jury into ignoring the “directly contributed” language of the verdict-director and allowed them to return a verdict for Nordson if they believed Nordson’s conduct was not the sole cause of the plaintiff’s injuries, even if such conduct contributed to cause those injuries. Their argument basically emanates from MAI 19.01 indicating that in joint tortfeasor cases the “direct result” language in the verdict-director “might be misleading.” Because of that a plaintiff, at his option, may use the verdict-director utilized by plaintiffs here.

The author has expressed his opinion concerning whether the utilization of the “direct result” converse is error in a dissenting opinion in Brickner v. Normandy Osteopathic Hospital Inc., 687 S.W.2d 910 (No. 47217) handed down contemporaneously. Both cases having been heard by the same expanded panel on rehearing no useful purpose would be served by restating that opinion. We will assume therefore that the converse as used was erroneous.

We find no prejudice to plaintiffs from the use of that instruction. As pointed out in Brickner the instructions in this case included a jury instruction on apportionment of fault and an apportionment of fault verdict-director. These items along with the verdict-directors made it clear that recovery could be had against both defendants. See Sall v. Ellfeldt, 662 S.W.2d 517 (Mo.App.1983) [11]. That destroyed any implication that the converse instructions required a sole cause finding.

Judgment affirmed.

DOWD, PUDLOWSKI, SIMON, GAERT-NER and KAROHL, JJ., concur. REINHARD, C.J., dissents. STEWART, J., dissents in separate opinion. CRIST, J., dissents & concurs with dissenting opinion.

. The converse was identical as to each plaintiff so we will discuss the issue only in regard to the plaintiff-husband.