dissenting.
I respectfully dissent.
In a very recent pronouncement the Supreme Court of this state said:
“Retrials are burdensome. There has been in recent years a trend away from reversal for error in instruction, unless there is a substantial indication of prejudice. This trend appears both in civil and in criminal cases. The very adoption of MAI, indeed, demonstrates confidence that the issues may be presented to juries through argument and that prolix factual instructions are neither necessary nor desirable. Our conclusion is consist*915ent with this observed trend.” (Footnotes omitted) Fowler v. Park Corporation, 673 S.W.2d 749 (Mo.banc 1984) [14].
I must assume that this admonition applies equally to trial courts confronted with motions for new trial and to appellate courts reviewing the rulings made on those motions. Our deference therefore to the ruling of the trial court granting a new trial comes into play only if there is error in the instruction and substantial indication of prejudice. I find neither here.
MAI 33.01 requires that the true converse be in substantially the same language used in the verdict-director. That precaution is intended to avoid the distortion of the legitimate burden of proof on the issue submitted. Snyder v. Chicago, Rock Island & Pacific Railroad Co., 521 S.W.2d 161 (Mo.App.1973) [9-12]; Sall v. Ellfeldt, 662 S.W.2d 517 (Mo.App.1983) [3-5]. The verdict-director and the converse must be read together to determine the meaning to a jury of ordinarily intelligent laymen. Sall v. Ellfeldt, supra, [6]. In Snyder v. Chicago, Rock Island & Pacific Railroad Co., supra, the court found prejudicial error in the use of “direct result” language in an FELA case. The basis for this finding was that “direct result” requires proof of common law proximate cause rather than the less restrictive FELA “cause in whole or in part.” [11,12] In Sall v. Ellfeldt, supra, the court dealt with very nearly the identical question presented by the ease before us. The court there found the utilization of the “direct result” language “was not erroneous as a matter of law, caused no unfairness to the plaintiff, and did not materially affect the merits of the action.” [11],
I note that plaintiffs’ attack is not really to the entire phrase “direct result.” The word “directly” was used in the verdict-director so “direct” was substantially the same wording. “Result” as a noun means “something that results as a consequence, effect, issue or conclusion.” Websters Third New International Dictionary. “Direct result” is common law proximate cause which it was plaintiffs’ burden to prove. Snyder v. Chicago, Rock Island & Pacific Railroad Co., supra. The use of that phrase in no way placed any greater burden on plaintiffs or changed their theory of recovery. The identical phrase was, in fact, used in their damage instructions. If defendant’s actions directly caused or directly contributed to cause damage to plaintiffs, then that damage was the direct result of defendant’s actions. The words used in the converse were synonymous with those used in the verdict-director. I do not find the converse erroneous as violating the “substantially the same” requirement.
I also am unable to conclude that the converse could have confused a reasonably intelligent jury of laymen. I find it incongruous to believe that a reasonably intelligent jury instructed that it could find against the hospital if its negligence “directly caused or directly contributed to cause the death” of Brickner could interpret the “direct result” converse to allow recovery only if the hospital’s negligence was the sole cause of death. The majority opinion finds prejudice because the converse implies that a verdict can be returned against the hospital only if it was the sole cause of the death. From this it is reasoned that the jury may have been led to believe that it could return a verdict against one of, but not both, the defendants. If the converse implies sole cause then what it led the jury to believe was that it could not return a verdict against either defendant unless he or it was the sole cause of the death. Exactly the same verdict-directing instruction and converse were submitted as to Dr. Bean. The jury returned a verdict against Dr. Bean. Either the implication of sole cause was not conveyed to the jury by the converse instructions or it concluded that in fact Dr. Bean was the sole cause of the death, thereby freeing the hospital of liability. Whichever alternative is accepted there is no prejudice to plaintiffs. I am unable to accept the majority premise that the jury interpreted the converse as to the hospital to submit sole cause and interpreted the *916identical converse as to Dr. Bean to submit contributory fault.
The liability of the hospital here is based upon the alleged negligence of its employee, Dr. Smith. The charge was based upon Dr. Smith’s failure to diagnose the cancer and this in turn was based upon his failure to remove the testicle during surgery for pathological examination. Dr. Smith was a resident at the hospital and performed the surgery under the direct supervision of Dr. Olson for whose negligence the hospital was not liable. There was substantial evidence, virtually uncontested, that Dr. Smith had no discretionary authority during the surgery, he did only what he was directed to do by Dr. Olson. Because of the settlement Dr. Olson’s possible negligence was never submitted to the jury. Dr. Bean’s negligence was in his failure after the operation to discover the continued presence of cancer in the testicle or at least to be aware of that possibility and warn the decedent. In this posture the verdict of the jury is quite rational and in keeping with the evidence submitted to it.
I would reverse the order of the trial court granting plaintiffs a new trial against the hospital and would reinstate the jury verdict.