33.01 [1996 Revision] Converse Instructions-General Comment

Instruction No 1 33.01 [1996 Revision] Converse Instructions--General Comment Cases prior to MAI recognized that a defendant is entitled to a converse of plaintiff's verdict directing instruction. Frazier v. Ford Motor Company, 365 Mo. 62, 276 S.W.2d 95 (1955). A true converse instruction does not need testimony to support it "because, absent a judicial admission, ... the credibility of the witnesses giving oral testimony establishing the affirmative remains for the jury." Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W.2d 461, 464 (1945). In Dell'Aria v. Bonfa, 307 S.W.2d 479, 480 (Mo.1957), the Missouri Supreme Court said: "[a defendant] may submit the exact converse of plaintiff's submission, Janssens v. Thompson, 360 Mo. 351, 228 S.W.2d 743 (Mo.banc 1950) or the converse of any one of the elements essential to plaintiff's recovery, McCarty v. Milgram Food Stores, Inc., 252 S.W.2d 343 (Mo.1952), or he can submit facts (supported by the evidence ) which would disprove one or more of the factual elements essential to a recovery by plaintiff. Liebow v. Jones Store Co., 303 S.W.2d 660 (Mo.1957)." For an extensive discussion of Converse Instructions under MAI, see Note, 42 Mo.L.Rev. 175 (1977). Verdict directing instructions of plaintiffs (and cross claimants counterclaimants ) may be conversed in one of the following two ways: True Converse An instruction beginning "Your verdict must be for defendant unless you believe" followed by one or more propositions submitted by the verdict directing instruction and in substantially the same language used in the verdict directing instruction. It is important to understand that the converse instructions shown in Illustrations 33.03, 33.04, 33.06 and 33.15 are merely illustrations of the method by which the "unless you believe" introductory language is to be combined with language from the verdict director being conversed. Unlike other forms of instructions shown in this book, it is not safe to select a complete converse instruction from Chapter 33 for use in particular litigation because the language of the verdict director in the litigation involved is likely to differ from the examples shown in the book. The form book for the language of the converse instruction, other than the introductory phrase, is the verdict director itself. If a defendant converses more than one element of a verdict director, the converse instruction should use the same connecting term (and vs. or ) as used in the verdict director. In other words, in conversing conjunctive submissions, the converse uses "and" between elements; in conversing disjunctive submissions, it uses "or". Thus, the principle that all of the language of the converse instruction except the preliminary phrase is to be taken from the verdict director covers the selection of the appropriate connecting term as well as the other language of the elements being conversed. This simple rule will avoid any error or ambiguity in selecting the proper connecting term, whether conversing and conjunctive or disjunctive submissions. See the discussion in 42 Mo.L.Rev. 175 at 181­ 83 (1977). A true converse instruction requires no independent evidence to support it. The defendant's converse instruction rests upon his contention that the plaintiff has failed to prove some portion of his case; it is the device with which the defendant seeks to emphasize one or more of the elements of the case upon which the plaintiff has the burden of proof. Unlike an affirmative converse instruction, there is no requirement that the verdict director contain a phrase, commonly referred to as an "affirmative defense" tail, which refers the jury directly from the verdict director to the true converse instruction. The defendant has the option to converse one or more elements of the verdict director. The only limitation on defendant's right to converse as much or as little of the verdict director as desired is with respect to disjunctive submissions. If defendant elects to converse any element which is submitted by the verdict director in the disjunctive, he must converse all such disjunctive elements. For example, if plaintiff submits that defendant either "failed to keep a careful lookout or drove at an excessive speed," a converse stating that "Your verdict must be for defendant unless you believe defendant drove at an excessive speed" would be improper because it deprives the plaintiff of the opportunity for a verdict if the jury does not believe excessive speed but finds defendant failed to keep a proper lookout. A proper converse of excessive speed must also converse lookout. Defendant may converse all of the disjunctive submissions only or may combine his converse of the disjunctive submissions with one or more additional conjunctive submissions from the verdict director. If defendant elects not to converse any of the disjunctive submissions, he may converse one or more of the remaining conjunctive submissions as he sees fit. Affirmative Converse The other type of converse instruction provided is an instruction beginning "Your verdict must be for defendant if you believe" followed by a hypothesized ultimate issue which, if true, would defeat plaintiff's claim. See Hiers v. Lemley, 834 S.W.2d 729 (Mo.banc 1992); and Notes on Use and Committee Comment to MAI 33.05(1). Use of this form requires independent evidence to support it. However, unlike a true converse instruction, there is a requirement that the verdict director contain a phrase, commonly referred to as an "affirmative defense" tail, which refers the jury directly from the verdict director to the affirmative converse instruction. The facts hypothesized in an affirmative converse instruction must be sufficient in law to defeat the plaintiff's claim. Shepard v. Ford Motor Company, 457 S.W.2d 255 (Mo.App.1970). The affirmative converse instruction should not be used to submit in the affirmative the same issue in substantially the same language as has already been submitted in the verdict directing instruction. Use a true converse instruction to converse an element submitted by the verdict director. See Stover v. Patrick, 459 S.W.2d 393 (Mo.banc 1970) and Oliver v. Bi­State Development Agency, 494 S.W.2d 49 (Mo.1973). Types of Converse Instructions Withdrawn The "If you do not believe" format for a true converse instruction and the general converse instruction (MAI 33.13) are withdrawn because limitations placed on their use under the prior rules resulted in only a limited n