Karen A. Swift v. R.H. MacY & Co., Inc., 780 F.2d 1358 (8th Cir. 1985). · Go Syfert
Karen A. Swift v. R.H. MacY & Co., Inc., 780 F.2d 1358 (8th Cir. 1985). Cases Citing This Book View Copy Cite
19 citation events (2 in the last 25 years) across 3 distinct courts.
Strongest positive: Wegener v. Johnson (ca8, 2008-06-06)
Top citers, strongest first. 13 distinct citers. How cited ↗
cited Cited as authority (rule) Wegener v. Johnson
8th Cir. · 2008 · confidence medium
Macy’s & Co., 780 F.2d 1358, 1361 (8th Cir.1985) (quoting Walsh v. Miehle-Goss-Dexter, Inc., 378 F.2d 409, 415 (3d Cir.1967)).
cited Cited as authority (rule) Angela Wegener v. Dean Johnson
8th Cir. · 2008 · confidence medium
Macy’s & Co., 780 F.2d 1358, 1361 (8th Cir. 1985) (quoting Walsh v. Miehle-Goss-Dexter, Inc, 378 F.2d 409, 415 (3d -10- Cir. 1967)).
cited Cited as authority (rule) Bristol Steel & Iron Works, Incorporated v. Bethlehem Steel Corporation
4th Cir. · 1994 · confidence medium
Macy’s & Co., Inc., 780 F.2d 1358, 1361 (8th Cir.1985).
cited Cited as authority (rule) Mozie v. Sears Roebuck and Co.
D.C. · 1993 · confidence medium
Macy’s & Co., 780 F.2d 1358, 1361 (8th Cir.1985) (quoting Walsh v. Miehl-Goss-Dexter, Inc., 378 F.2d 409, 415 (3rd Cir.1967)).
cited Cited as authority (rule) United States v. Peter J. Ribaste, A/K/A P.J. Ribaste
8th Cir. · 1990 · confidence medium
Macy’s & Co., 780 F.2d 1358, 1360-61 (8th Cir.1985).
cited Cited as authority (rule) James Jones v. Board Of Police Commissioners
8th Cir. · 1988 · confidence medium
Macy's & Co., 780 F.2d 1358, 1360-61 (8th Cir.1985).
cited Cited as authority (rule) Jones v. Board of Police Commissioners
8th Cir. · 1988 · confidence medium
Macy’s & Co., 780 F.2d 1358, 1360-61 (8th Cir.1985).
cited Cited as authority (rule) Sandra L. Montague v. Joy M. Heater and Ted Heater, D/B/A Specialized Auto Sales, Oren Henry. Sandra L. Montague v. Joy M. Heater and Ted Heater, D/B/A Specialized Auto Sales, Oren Henry
8th Cir. · 1988 · confidence medium
Macy's & Co., 780 F.2d 1358, 1361 (8th Cir.1985) (citing Keltner v. Ford Motor Co., 748 F.2d 1265, 1267 (8th Cir.1984)).
cited Cited as authority (rule) Montague v. Heater
8th Cir. · 1988 · confidence medium
Macy’s & Co., 780 F.2d 1358, 1361 (8th Cir.1985) (citineg Keltner v. Ford Motor Co., 748 F.2d 1265 /1267 (8th Cir.1984)).
cited Cited as authority (rule) Laro Corporation v. Big D Oil Company
8th Cir. · 1987 · confidence medium
Macy’s & Co., 780 F.2d 1358, 1360-61 (8th Cir.1985).
cited Cited as authority (rule) Patterson v. F.W. Woolworth Co.
8th Cir. · 1986 · confidence medium
Macy’s & Co., 780 F.2d 1358, 1361 (8th Cir.1985), and see Jiffy Markets, Inc. v. Vogel, 340 F.2d 495, 500 (8th Cir.1965), we do not find any error, much less plain error.
discussed Cited as authority (rule) 20 Fed. R. Evid. Serv. 450, prod.liab.rep.(cch)p 10,961 Beverly Patterson, Individually and as Administratrix of the Estate of Richard Patterson and Randy Patterson, David Keleher, as Conservator of the Nicholas Patterson Conservatorship and Administrator of the Estate of Betsy Luane Patterson and Mary L. Medina, Individually and as Administratrix of the Estate of Brian John Medina v. F.W. Woolworth Co., D/B/A Woolco Department Store, and Lakewood Engineering and Manufacturing Company, Beverly Patterson, Individually and as Administratrix of the Estate of Richard Patterson and Randy Patterson and David Keleher, as Conservator of the Nicholas Patterson Conservatorship and Administrator of the Estate of Betsy Luane Patterson, and Mary L. Medina, Individually and as Administratrix of the Estate of Brian John Medina v. F.W. Woolworth Co., D/B/A Woolco Department Store, and Lakewood Engineering and Manufacturing Company, Beverly Patterson, Individually and as Administratrix of the Estate of Richard Patterson and Randy Patterson and David Keleher, as Conservator of the Nicholas Patterson Conservatorship and Administrator of the Estate of Betsy Luane Patterson v. F.W. Woolworth Co., D/B/A Woolco Department Store, and Lakewood Engineering and Manufacturing Company
8th Cir. · 1986 · confidence medium
Macy's & Co., 780 F.2d 1358, 1361 (8th Cir.1985), and see Jiffy Markets, Inc. v. Vogel, 340 F.2d 495, 500 (8th Cir.1965), we do not find any error, much less plain error. 14 Although their brief is not clear, plaintiffs seem to contend that the instructions did not clearly set forth Iowa law on sole proximate causation, product misuse, and assumption of risk.
discussed Cited as authority (rule) Federal Enterprises, Inc., a Missouri Corporation, and Douglas S. Evans, Trustee in Bankruptcy v. Greyhound Leasing & Financial Corp.
8th Cir. · 1986 · confidence medium
Macy’s & Co., 780 F.2d 1358, 1360-61 (8th Cir.1985); see Beck v. Modern American Life Insurance Co., 589 S.W.2d 98, 103 (Mo.Ct.App.1979). 5 The instructions should state the governing law fairly and adequately; that they are “ ‘technically imperfect or are not a model of clarity does not render the charge erroneous.’ ” Crimm v. Missouri Pacific Railroad, 750 F.2d 703, 710 (8th Cir.1984) (quoting Tribble v. Westinghouse Electric Corp., 669 F.2d 1193, 1197 (8th Cir.1982), cert. denied, 460 U.S. 1080 , 103 S.Ct. 1767 , 76 L.Ed.2d 342 (1983)).
Retrieving the full opinion text from the archive…
Karen A. SWIFT, Appellant,
v.
R.H. MACY’S & CO., INC., Appellee
84-2662.
Court of Appeals for the Eighth Circuit.
Dec 30, 1985.
780 F.2d 1358
1985 U.S. App. LEXIS 25819
Basil L. North, Jr., Kansas City, Mo., for appellant., John P. Polan, Kansas City, Mo., for appellee.
Arnold, Wollman, Regan.
Cited by 16 opinions  |  Published
REGAN, Senior District Judge.

Karen A. Swift appeals from a jury verdict in favor of appellee, R.H. Macy’s & Co. Inc. (“Macy’s”). [1] The case was submitted to the jury on a false imprisonment theory. The verdict director substantially followed Missouri Approved Instruction (MAI) 23.04. Defendant asserted an affirmative defense that tracked the statutory language of[*1360] § 537.125 RSMo. and which substantially followed MAI 32.13. [2] Swift contends the district court erred in denying her motion for a new trial on the grounds that the Court committed reversible error by making the following comments during the court’s supplemental charge to the jury:

THE COURT: Members of the jury, I have five separate questions in writing, and in some cases the Court is able to write a short note back to the jury and answers the questions. These five questions, however, after discussion with counsel for both sides, everyone is agreed that it would be most helpful for the Court to bring the jury back and put these questions in perspective and to read two instructions which I gave you which you are to make the finding of fact and apply the principles of law that are stated in those two instructions____
There isn’t a single word in these instructions that relates to Macy’s training procedures, and that isn’t the issue of fact in this case. Had it been, an instruction would have been directed to a training program.
So I think you can understand that discussion of a training program does not assist the jury in following the instructions and making findings of fact and applying the law as given you by the Court.

The Court then repeated plaintiff’s verdict director and defendant’s affirmative defense instruction. After which the Court asked:

THE COURT: Now, does any member of the jury need any additional instruction in regard to the incorporation of the statutory language in the instruction and the lack of need of having a copy of the statute?
A JUROR: We are having a problem in agreeing what is reasonable.
THE COURT: That is a question of fact, what is reasonable, and this is what you must center on you must determine whether in the second element defendant had reasonable cause to believe that the plaintiff wrongfully had taken or was taking merchandise. You have heard the testimony as to what the witnesses testified as to what they saw and why Mr. Kevin Barnes went out and asked the plaintiff to come back in the security office, and you’ve got to determine whether the defendant had reasonable cause under the circumstances to take that action.

You must also find, thirdly, whether the restraint was made in a reasonable manner and for a reasonable length of time, and for the purpose of investigation, and you have heard the testimony of the witnesses in that regard, and you must determine unanimously the answer to those questions in fact.

Plaintiff failed to object to the court’s supplemental instruction before the jury retired to consider its verdict as Rule 51 of the Federal Rules of Civil Procedure requires. Coleman v. City of Omaha, 714 F.2d 804, 807 (8th Cir.1983). Error in the instructions not properly objected to is waived unless the error is plain error in the sense that a miscarriage of justice would otherwise result. Federal Crop Insurance Corporation v. Hester, 765 F.2d 723, 727 (8th Cir.1985), Rowe International, Inc. v. J-B Enterprises, Inc., 647 F.2d 830, 835 (8th Cir.1981); Cone v. Beneficial Standard Life Insurance Co., 388 F.2d 456, 459-60 (8th Cir.1968). The plain error exception to Rule 51 is narrow and is confined to the exceptional case where the error has seriously affected the fairness, integrity or public reputation of judicial proceedings. R.W. Murray Company v. Shatterproof Glass Company, 758 F.2d 266, 174-75 (8th Cir.1985). Wright v. Farmers Co-op of Arkansas and Oklahoma, 620 F.2d 694, 699 (8th Cir.1980); Rowe International, Inc., supra, 647 F.2d at 835; Johnson v. Houser, 704 F.2d 1049, 1051-52 (8th Cir.1983). When a portion of a jury instruction is assigned as error, the reviewing court[*1361] must look to the instruction as a whole to determine whether the charge, taken as a whole and viewed in light of the evidence, fairly and adequately submits the issues in the case to the jury. Chohlis v. Cessna Aircraft Co., 760 F.2d 901, 905 (8th Cir.1985); Monahan v. Flannery, 755 F.2d 678, 681 (8th Cir.1985); Ayoub v. Spencer, 550 F.2d 164, 167 (ed. Cir.), cert. denied, 432 U.S. 907, 97 S.Ct. 2952, 53 L.Ed.2d 1079 (1977); Des Moines Board of Water Works Trustees v. Alvord, Burdick and Howson, 706 F.2d 820, 823 (8th Cir.1983). It is not necessary for the district court to recite a requested instruction verbatim in order to avoid error, so long as the instructions given are accurate and fair to both parties. Villanueva v. Leininger, 707 F.2d 1007, 1009 (8th Cir.1983). “A party is not entitled ‘to have the jury instructed in any particular language, so long as the jurors understand the issues and are not misled.’ (citations omitted). A district judge has broad discretion in the choice of form and language____” Keltner v. Ford Motor Company, 748 F.2d 1265, 1267 (8th Cir.1984). Where a jury “makes known its difficulty and requests further instructions on the law applicable to an important issue, the trial judge is required to give such supplemental instructions as may be necessary to guide it in the determination of the issue, (citations omitted). A perfunctory re-reading of the very instruction which may have led to the difficulty does not fulfill the requirement.” Walsh v. Miehle-Goss-Dexter, Inc., 378 F.2d 409, 415 (3d Cir.1967).

Reviewing the charge as a whole, and in light of the evidence and applicable law, we find that the4 issues in the case were fairly and adequately submitted to the jury. We note that Swift not only failed to object to the Court’s supplemental charge, but also failed to tender or request a supplemental instruction which defined the term “reasonable” for the jury. Given these circumstances, we feel that the judge’s comments on the evidence during the supplemental charge were reasonable and permissible.

In charging the jury, the trial judge is not limited to instruction of an abstract sort. It is within his province, whenever he thinks it necessary to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing their attention to the parts of it, which he thinks important, and he may express his opinion upon the facts provided he makes it clear to the jury that all matters of fact are submitted to their determination.

Quercia v. U.S., 289 U.S. 466, 469, 53 S.Ct. 698, 699, 77 L.Ed. 1321 (1933). The trial court’s supplemental charge was not “plainly erroneous.” Mid-America Food Service v. ARA Services Inc., 578 F.2d 691, 696 (8th Cir.1978). The reasonableness of the procedures used by Macy’s to train security personnel was not an issue in the case. The reasonableness of Swift’s restraint was to be judged an objective standard. Ransom v. Adams Dairy Co., 684 S.W.2d 915, 921 (Mo.App.1985); Prosser, Law of Torts (4th Ed.1971) at 150. Therefore, we hold that the instructions, when viewed as a whole, fairly and adequately submitted the case to the jury. Furthermore any alleged error made in delivering the supplement charge was neither plain error nor properly preserved for review. Accordingly, we affirm.

1

. The Hon. John W. Oliver, Senior Judge, presiding.

2

. The case was not submitted on a negligent hiring/negligent training, or assault and battery theory. It is the duty of the court, in submitting a case to the jury, to confine its instructions to the issues raised by pleading and procf. State of Arkansas v. Godbehere, 261 F.2d 623, 625 (8th Cir.1958).