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Woodward v. Research Medical Center8/23/2005
in an action brought under section 537.020, which relates to the survival of actions for personal injury or death regardless of the death of either party, and (ii) the court erroneously and prejudicially modified the personal-injury verdict director and corresponding damages instruction with the MAI 19.01 multiple causes instruction.
STANDARD OF REVIEW
We review a circuit court's denial of a new trial motion for abuse of discretion, which we will find only when the ruling is so arbitrary and unreasonable that it shocks our sense of justice and indicates a lack of careful consideration. Bowan ex rel. Bowan v. Express Med. Transporters, Inc. , 135 S.W.3d 452, 456 (Mo. App. E.D. 2004). Our standard of review following denial of a motion for judgment notwithstanding the verdict is whether the plaintiff made a submissible case. Id. "A case is not submissible unless each and every fact essential for liability is predicated upon legal and substantial evidence." Id. And, in determining whether a submissible case has been made, "we consider the evidence, and all reasonable inferences therefrom, in the light most favorable to the plaintiff, and we disregard all evidence contrary to plaintiff's claim." Id.
Whether a jury has been properly instructed is a question of law, and we give little deference to the circuit court's decision. Wright v. Barr , 62 S.W.3d 509, 526 (Mo. App. W.D. 2001). Jury instructions must be supported by substantial evidence, and we review the evidence and every inference in a light most favorable to the submission of the instruction. Id. The opponent's evidence is disregarded, "unless it tends to support the submission." Bank of Am., N.A. v. Stevens , 83 S.W.3d 47, 54 (Mo. App. S.D. 2002). In addition, a party is entitled to have his theory of the case submitted to the jury by instructions, as long as the instructions are within the pleadings and evidence and are correct in form and substance. Wright , 62 S.W.3d at 530. If a party is entitled to an instruction that has been requested but not given, reversal is warranted when the merits of the case have been materially affected. Id.
LEGAL ANALYSIS
The circuit court apparently refused to modify the wrongful-death instruction on the basis of the Notes on Use to MAI 20.02. The courts consider these notes to be an integral part of the Missouri Approved Instructions. Gormly v. Johnson , 451 S.W.2d 45, 46-47 (Mo. 1970). The instructions are authoritative, and, if applicable, they and the Notes on Use must be followed "religiously." Royal Indem. Co. v. Schneider, 485 S.W.2d 452, 458 (Mo. App. 1972).
A narrow exception to this rule has been developed, however; an MAI and its Notes on Use are not binding to the extent that they conflict with substantive law. State v. Carson , 941 S.W.2d 518, 520 (Mo. banc 1997). In this case, Mr. Woodward argues and Research agrees that, despite the absence of any specific reference in MAI 20.02 to MAI 19.01, the multiple causes instruction can be applied to a wrongful-death case. See, e.g., Hagen v. Celotex Corp. , 816 S.W.2d 667, 673 n. 9 (Mo. banc 1991) (stating that MAI 19.01 can apply to wrongful-death cases by substituting the words "the death of" for "damage to"); Honey v. Barnes Hosp. , 708 S.W.2d 686, 692-93 (Mo. App. E.D. 1986) (court finds no error in application of MAI 19.01 to applicable wrongful-death verdict director, MAI 20.02). Accordingly, the fact that the Notes on Use to MAI 20.02 do not expressly allow its modification by MAI 19.01 should not have precluded the circuit court from allowing the modification, if warranted by the evidence.
The parties disagree about whether the evidence showed that there were multiple causes
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