Southwestern Bell Telephone Co. v. Kroupa

OPINION ON MOTION FOR REHEARING OR IN THE ALTERNATIVE TO TRANSFER CAUSE TO THE SUPREME COURT

PER CURIAM.

Defendant in his motion for rehearing has pointed out that we recently approved an instruction in the case of Southwestern Bell Telephone Company v. Webb, Mo.App., 393 S.W.2d 117, which was identical in all respects to defendant’s Instruction D-1. This case was not cited by defendant in his brief. The opinion in the Webb case did not recite the instruction. We have examined the transcript in that case and have found the questioned instruction is similar in all pertinent respects to defendant’s Instruction D-1 in the instant case. The opinion in the Webb case did hold that the instruction properly hypothesized the issue of damages and did not authorize an award of double damages. In that respect the opinion in the Webb case is in error and is in conflict with what we have said, in this opinion. That part of the opinion in the Webb case that holds the questioned instruction properly hypothesized the issue of damages and did not authorize an award of double damages should not be followed.

Defendant’s motion for rehearing, or in the alternative to transfer cause to the Supreme Court of Missouri is overruled.