dissenting.
I dissent from the holding of the majority opinion that the plaintiff has met its burden to demonstrate a lack of prejudice in the conceded error in including “or defense” in the burden of proof instruction. I also conclude that the giving of the two forms of verdict instructions with the single verdict director was error but in the unusual posture of the evidence in this case was not prejudicial.
The issue with respect to the error in the use of the form of verdicts is plain enough. The verdict director (Instruction 7, set forth in the principal opinion) provided findings necessary to a verdict against both defendants. The necessary elements to find against one plaintiff for one store’s account and against both defendants on the other store’s account are not present in that verdict director or any other instruction. The jury’s verdict was returned against defendant Margie Strautman on the Craig store account and against defendants Margie Strautman and Everett Strautman on the Tarkio store account. A verdict directing instruction on this theory simply does not exist in this case. Instruction 7 directs a verdict for $51,424.33 against both defendants and requires a finding that both defendants are liable for both accounts. When there are two defendants and the issue of their joint or several responsibility for the account is in issue, the proof and finding must resolve this issue. Del Monte Corp. v. Stark & Son Wholesale, Inc., 474 S.W.2d 854 (Mo.App.1971). The jury’s verdict in this ease was returned against Margie Strautman on the Craig store account and against Margie Strautman and Everett Strautman on the Tarkio store account without any direction as to the factual findings upon which such a verdict must rest.
The majority opinion recognizes that the issue of joint responsibility for the Craig store account was controverted, but concludes that submission of that issue in the verdict form was within the discretion of the trial judge under the packaging instruction and not misleading under the guidelines set forth in Shurtz v. Jost, 597 S.W.2d 652 (Mo.App.1979), and Morse v. Johnson, 594 S.W.2d 610 (Mo. banc 1980).
The discussion of discretion in packaging and of misleading and confusing instructions is irrelevant. The jury simply had no proper verdict directing instruction to sup*765port the form of verdict they utilized to return their verdict.
The error is palpable but under the peculiar evidentiary setting of this case it does not require reversal. Defendants and plaintiffs stipulated the invoices for groceries delivered to each store were correct. They admitted the charges for the groceries were reasonable. They admitted Margie Strautman owned the Craig store and Margie Strautman and Everett Strautman owned the Tarkio store. The only dispute in the evidence was as to the calculation of late charges and interest. The jury followed the undisputed evidence as to the allocation of responsibility as to the accounts and the verdict is correct without question on the issue of liability. In this respect the case is remarkably similar to Mid-Continent National Bank v. DeShong, 538 S.W.2d 914 (Mo.App.1976), where the jury, despite palpable error, came to the only possible correct result under the evidence.
The issue with respect to the burden of proof instruction is on a different footing under the evidence in the case. The defendants asserted the amounts claimed by plaintiff were erroneous, not by reason of quantity or quality of merchandise, but by reason of improper calculations of amounts for late charges, interest, and various credits.
The majority opinion asserts without any assigned reason that plaintiff met its burden of establishing that no prejudice inhered in the erroneous inclusion of the words “or defense” in the burden of proof instruction. The only justification plaintiff offered in its brief was that defendants had pleaded an affirmative defense. No affirmative defense was submitted. Nothing was added at oral argument after the motion for rehearing was granted. Although the prejudicial effect of an instruction submitted in violation of Rule 70 is to be judicially determined, it is the instruction’s proponent’s burden to make “perfectly clear” that “no prejudice could have resulted from such deviation.” Brown v. St. Louis Public Service Co., 421 S.W.2d 255, 259 (Mo. banc 1967). Defendant has offered nothing to carry its burden to demonstrate a lack of prejudice.
The majority argues, sua sponte, that no prejudice could occur because the “negative defenses” were not before the jury in the form of an instruction headed “if you believe.” A jury cannot be assumed to have the sophistication necessary to distinguish, without instruction, between negative and affirmative defenses. Intelligent lay people, upon reading the burden of proof instruction as submitted, would assume that the defendants had the burden to dissuade them from believing plaintiff’s evidence on the additional charges and failure to give credits. The defendants’ evidence was directed only to the amount owed and only as to interest and credits. The jury may well have believed the defendants had the burden on this issue and been misled as to the burden plaintiff shouldered to prove the propriety of interest charges and credits.
I would reverse and remand for a new trial.