Paul C. Wilson, Judge.
BNSF Railway Company ("BNSF") appeals the judgment of the circuit court, entered upon a jury verdict, in favor of Sherry Spence ("Spence") on her wrongful death cause of action for the death of her husband, Scott Spence ("Decedent"). This Court has jurisdiction under article V, section 10 of the Missouri Constitution, and the judgment is affirmed.
Spence sued BNSF for the wrongful death of Decedent, who was killed in 2012 after a BNSF train struck his pickup truck at a railroad crossing. Spence alleged BNSF was negligent for failing to trim the vegetation around the railroad crossing, which prevented Decedent from being able to see the approaching train. Spence also pursued a claim of respondeat superior liability against BNSF, alleging its train crew members were negligent for failing to stop or slow the train because the crew members, from their higher vantage point, should have seen Decedent's pickup truck as he was approaching the railroad crossing. In response, BNSF alleged Decedent was negligent in driving his vehicle onto the railroad crossing as the train was approaching.
On appeal, BNSF asserts the circuit court erred in overruling BNSF's motion for a new trial based upon a juror's intentional nondisclosures. BNSF also claims the circuit court erred in overruling BNSF's motion for a new trial because it should not have submitted (over BNSF's objections) the verdict directors in Instruction Nos. 6 and 7 and the corresponding Verdict Form A. Finally, BNSF claims the circuit court erred in overruling BNSF's motion for a new trial because it should not have submitted (over BNSF's objection) Instruction No. 8 dealing with BNSF's duties and because it should have granted a mistrial during opening statement when Spence's counsel referred to BNSF's removal of certain sight tables from its traffic engineering instructions.
At the center of BNSF's motion for a new trial is the conduct of Juror Kimberly Cornell ("Juror Cornell"). Before trial, each juror received a juror questionnaire with their name preprinted at the top. On Juror Cornell's questionnaire, however, her name was spelled incorrectly as "Kimberly Ann
Twelve days before trial, the circuit clerk's office distributed the juror questionnaires, the pool selection report, and a seating chart to both sides. On each of these documents Juror Cornell's last name was misspelled "Carnell." Relying on these documents, BNSF claims it conducted a Case.net search for "Kimberly Carnell" and found no litigation in which she was listed as a party.
When Juror Cornell reported for jury selection, she informed circuit court staff that her name had been misspelled at the top of her questionnaire. Upon learning this, the court's deputy clerk informed counsel for both parties of the correct spelling of Juror Cornell's name. The deputy clerk also made a handwritten correction to Juror Cornell's name on the master list of venirepersons and provided that list to counsel on both sides. The deputy clerk took these measures prior to 8:28 a.m., when the venire was seated and voir dire began.
Before counsel began questioning members of the venire, the trial judge explained how important it was for prospective
Voir dire concluded at 11:23 a.m., at which time the court took a recess. When court resumed, the trial judge took up the parties' motions to strike for cause and their peremptory challenges, as well as other matters. At 12:35 p.m., the jury—including Juror Cornell—was seated and sworn.
In its motion for new trial, BNSF claimed that immediately after trial a BNSF representative overheard Juror Cornell tell Spence she could relate to Spence because she had a son who was killed in a motor vehicle accident.
Spence responded that, pursuant to Rule 69.025(e), BNSF had waived any claim for relief based upon juror nondisclosure because it failed to conduct a reasonable investigation (i.e., by searching Case. net for "Kimberly Cornell") and informing the court of Juror Cornell's undisclosed litigation history prior to the jury being seated and sworn. BNSF claimed it had done a Case.net search for "Kimberly Carnell," the name it had been given, and it had no reason to suspect her name was "Kimberly Cornell" until after the verdict was rendered. At an evidentiary hearing, the circuit court received testimony from the deputy clerk who said she advised counsel for both parties orally of the misspelling of Juror Cornell's name and provided
"This Court will not disturb the circuit court's ruling on motion for a new trial based on juror nondisclosure unless the trial court abused its discretion." Johnson v. McCullough, 306 S.W.3d 551, 555 (Mo. banc 2010) (citation omitted). "A trial court abuses its discretion if its `ruling is clearly against the logic of the circumstances then before the court and so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.'" Id. (citation omitted). Moreover, any question regarding the proper construction of Rule 69.025 and its reasonable investigation requirement is reviewed de novo because "this Court interprets its rules by applying the same principles used for interpreting statutes." McGuire v. Kenoma, LLC, 447 S.W.3d 659, 662 (Mo. banc 2014) (citation omitted).
Rule 69.025 provides, in full:
The waiver provision of Rule 69.025(e) applies whether the juror nondisclosure occurred on the questionnaire or during voire dire, whether the questions to which the juror should have responded were clear or ambiguous, and whether the juror's nondisclosure was intentional or unintentional. In all cases, Rule 69.025 conditions the right of any party to seek relief on a claim of juror nondisclosure upon that party: (a) conducting a "reasonable investigation" (which Rule 69.025(b) defines as a "review of Case.net before the jury is sworn"); and (b) informing the court it has reasonable grounds to believe the nondisclosure has occurred. Most significantly, in order to preserve its right to seek relief, the party must do both of these "
Here, according to the testimony of the deputy clerk (which the trial court specifically found credible), BNSF had more than four hours between the time she informed the parties of the misspelling of Juror Cornell's name (and provided a corrected copy of the master list of the veniremembers) and the time the jury was seated and sworn. This was ample time to search Case.net with the corrected spelling. Because BNSF failed to do so, it "waive[d] the right to seek relief based on juror nondisclosure" under Rule 69.025(e).
BNSF claims, even if it waived the right to seek relief for Juror Cornell's failure to disclose her litigation history, Rule 69.025(e) applies only to the nondisclosure of a juror's litigation history and, therefore, BNSF did not waive the right to seek relief for Juror Cornell's failure to disclose her accident history. This argument lacks direct textual support because, notwithstanding a number of references to "litigation history" throughout Rule 69.025 (including in Rule 69.025(e)(2)), the waiver language in Rule 69.025(e) speaks to claims for "relief based on juror nondisclosure" and is not limited only to nondisclosures of a juror's litigation history.
That said, the Court need not decide in this case whether the waiver provision in Rule 69.025(e) would apply to a standalone claim that a juror failed to answer truthfully a question concerning her accident history because BNSF's claims that Juror Cornell failed to disclose her litigation history and her accident history were inseparably linked from the beginning. There can be no doubt that, had BNSF searched Case.net using a proper spelling of Juror Cornell's name, it would have discovered both. Not only was one of the cases returned in the Case.net search plainly identified as a "wrongful death" action, the docket entries for that litigation referred to a payment by an automobile insurance carrier and the first page of the petition in that action disclosed Juror Cornell's son had died in an automobile accident. In fact, BNSF admitted in the circuit court a simple Case.net search of Juror Cornell's name would have revealed both her failure to disclose her litigation history and her
Accordingly, this Court affirms the circuit court's overruling of BNSF's motion for a new trial based on juror nondisclosure.
Over BNSF's objections, the circuit court submitted the following verdict directors: Instruction No. 6 relating to Spence's claim BNSF was negligent for failing to maintain the railroad crossing to provide motorists with adequate sight lines to oncoming trains, and Instruction No. 7 relating to Spence's claim BNSF was liable under respondeat superior for the failure of BNSF's train crew to stop or slow the train as Decedent approached given their greater height and enhanced sight lines.
On the claim of Plaintiff Sherry Spence for compensatory damages for the wrongful death of her husband, Scott Spence, we the undersigned jurors assess percentages of fault as follows:
Defendant BNSF on sight distance claim ______ % (zero to 100%) Defendant BNSF on failure to stop or slow claim ______ % (zero to 100%) Decedent Scott Spence ______ % (zero to 100%) TOTAL ______ % (zero or 100%)
On appeal, BNSF argues the circuit court erred in overruling its motion for new trial on the ground that, under MAI 20.02, the circuit court should have submitted a single verdict director with two disjunctive acts of negligence, rather than two separate verdict directors setting forth two independent theories of negligence. As a result, BNSF argues Verdict Form A also was improper in that it should have had only one line for its fault and one line for Decedent's fault. The Court rejects these arguments.
"Whether a jury was properly instructed is a question of law that this Court reviews de novo." Edgerton v. Morrison, 280 S.W.3d 62, 65 (Mo. banc 2009) (citation omitted). "An issue submitted by an instruction must be supported by the evidence. . . ." Oldaker v. Peters, 817 S.W.2d 245, 251 (Mo. banc 1991) (citation omitted). "In making this determination as to a particular instruction, this Court views the evidence in the light most favorable to its submission." Edgerton, 280 S.W.3d at 65-66 (citation omitted). An instructional error is only grounds for reversal "when the instruction misdirected, misled, or confused the jury and resulted in prejudice." Id. at 66 (citation omitted).
According to BNSF, Spence's case was based upon two distinct acts of negligence and, therefore, the circuit court should have used MAI 20.02, "Multiple Negligence Acts Submitted," to submit those separate acts in the disjunctive. But Comment B to MAI 37.05(1) is directly on point and refutes BNSF's argument. This Comment states:
Here, like the example in Comment B, Spence sought to recover on the basis of respondeat superior and on BNSF's own (or direct) negligence, and BNSF sought to have the jury attribute a percentage of comparative fault to Decedent. As explained in the Comment, therefore, each of these requires a separate verdict director and all three determinations should be recorded on separate lines in the verdict form.
Because MAI 37.05(1) is only to be used when agency is disputed, BNSF argues Comment B (which follows MAI 37.05(1)) cannot apply because agency was not disputed in this case. Nothing in the language of Comment B depends upon whether agency is or is not disputed, however, and BNSF makes no compelling argument why the logic of Comment B should not apply equally in both situations. As noted above, the focus of Comment B is on what to do when the plaintiff makes a submissible case on separate claims of direct and imputed liability and the defendant makes a submissible case on comparative fault. Comment B correctly states the law, and the circuit court did not err in submitting Instruction Nos. 7 and 8 and Verdict Form A.
BNSF claims the circuit court erred in overruling its motion for new trial because the court should not have submitted—over BNSF's objection—Instruction No. 8 regarding the duties owed by BNSF. As given, Instruction No. 8 read:
Notably, Spence only sought to have the court give Instruction No. 8 after the court announced it would give two similar instructions requested by BNSF regarding the duties owed by it and by Decedent, i.e., Instruction No. 14 (regarding the duties owed by BNSF with respect to maintaining the crossing)
The Court need not reach this issue, however, because, one party "cannot sustain a claim of prejudicial error where the alleged defect in the [opposing party's] instruction also exists in her own." Jewell v. Arnett, 318 S.W.2d 277, 279 (Mo. 1958). See also Carson v. Evans, 351 Mo. 376, 173 S.W.2d 30, 32 (Mo. 1943) ("The rule is widely recognized that an appellant will not be heard to complain of an error or omission in respondent's instruction which is common to his own instruction or when his own exhibits the same fault.").
Here, BNSF will not be heard to complain about Instruction No. 8 because any flaw in Instruction No. 8 also is present in Instruction Nos. 13 and 14, which BNSF tendered. See, e.g., Anderson v. Woodward Implement Co., 256 S.W.2d 819, 824-25 (Mo. 1953) ("Having persuaded the trial court to give, at his request, two instructions covering that field of the case, the plaintiff will not be heard to base an assertion of reversible error upon the court's giving, at defendants' request, a third instruction upon the same subject matter."); Bowers v. Etherton, 216 S.W.2d 83, 87 (Mo. 1949) ("Whatever vice existed in defendant's instruction C also existed in plaintiff's instruction No. 7 and, if there be error, plaintiff may not complain."). Accordingly, the circuit court did not err in submitting Instruction No. 8.
Spence filed her original petition in February 2013. In December 2014, she amended her petition to raise additional claims that BNSF was directly negligent for removing the AASHTO sight tables
At trial, Spence's counsel referenced BNSF's removal of the sight tables during her opening statement.
In opening statements, counsel is granted wide latitude to present a good-faith statement of what counsel expects the evidence will show. Buck v. St. Louis Union Tr. Co., 267 Mo. 644, 185 S.W. 208, 212 (Mo. 1916). "The scope of opening statements is within the discretion of the trial court." State v. Thompson, 68 S.W.3d 393, 395 (Mo. banc 2002) (citation omitted). "Review is only for abuse of discretion." Id. Equally important, mistrial is a drastic remedy and the decision to grant or deny such relief lies in the sound discretion of the trial court. Pierce v. Platte-Clay Elec. Co-op., Inc., 769 S.W.2d 769, 778 (Mo. banc 1989)). "Absent a manifest abuse of discretion, an appellate court will not interfere with the trial court's decision." Id.
In Spence's opening statement, counsel was entitled to refer to the AASHTO sight tables and BNSF's removal of them because counsel had a good-faith belief Spence's experts would testify about those subjects. The mere fact Spence was no longer claiming this as a separate direct negligent act (in the disjunctive with her claim BNSF was directly negligent for failing to maintain the crossing so as to provide motorists adequate sight lines), does not mean evidence of the AASHTO sight tables was not relevant to her existing claim of direct negligence. Indeed, Spence's opening statement turned out to be entirely accurate because Spence later called two experts who testified—without objection from BNSF—about these topics. Accordingly, the circuit court did not err in overruling BNSF's objection and request for a mistrial during opening statements and did not err in later overruling BNSF's motion for new trial on these same grounds.
For the reasons set forth above, the judgment of the circuit court is affirmed.
Fischer, C.J., Draper, Russell and Breckenridge, JJ, concur;
Powell, J., dissents in separate opinion filed;
Stith, J., concurs in opinion of Powell, J.
W. Brent Powell, Judge, dissenting.
I respectfully dissent. BNSF did not waive its juror nondisclosure claim related to automobile accident history based on Rule 69.025, as the principal opinion maintains.
"This Court interprets its rules by applying the same principles used for interpreting statutes." Buemi v. Kerckhoff, 359 S.W.3d 16, 20 (Mo. banc 2011). Therefore, the primary principle for interpreting a rule is to give effect to this Court's intent as reflected in the plain language of the rule. See id.; see also Parktown Imps., Inc. v. Audi of Am., Inc., 278 S.W.3d 670, 672 (Mo. banc 2009). As with a statute, this Court does not look at any one portion of a rule in isolation when interpreting the meaning of the rule. See Union Elec. Co. v. Dir. of Revenue, 425 S.W.3d 118, 122 (Mo. banc 2014). Rather, this Court considers the context of the entire rule to determine its plain meaning. See id.
Pursuant to Rule 69.025, claims of juror nondisclosure may be waived unless a party informs the court of suspected nondisclosure before the jury is sworn. But not all claims of juror nondisclosure are governed by Rule 69.025 because the text of the rule limits its applicability to specific juror nondisclosure claims. The plain language of Rule 69.025 speaks to juror nondisclosure of litigation history. The rule does not mention or refer to any other juror nondisclosure claim. Subdivision (c) of the rule requires a court to "give all parties an opportunity to conduct a reasonable investigation as to whether a prospective juror
These provisions of Rule 69.025 specifically limit the application of the rule to claims that a juror has failed to disclose that he or she has been a party to litigation. Subdivision (c) of the rule does not require a court to provide an opportunity for the parties to investigate anything other than juror litigation history. Subdivision (d) of the rule does not require a party to inform the court of anything other than juror nondisclosure of litigation history. And subdivision (e) of the rule does not provide for the waiver of a juror nondisclosure claim for anything other than the failure to disclose litigation history. Considering the context of the entire rule, Rule 69.025 applies only to juror nondisclosure of litigation history.
The principal opinion, however, holds Rule 69.025 applies not only to nondisclosure of litigation history but also to nondisclosure of "pertinent facts" that are "readily apparent" from a Case.net search. Op. at 776, n.7. As Rule 69.025 does not speak of such "pertinent facts," this holding finds no support in the plain language of the rule. The principal opinion does not suggest otherwise, as its analysis does not cite any specific language in Rule 69.025. Nevertheless, the principal opinion reasons "it is fair" to charge a party with constructive knowledge of such "pertinent facts." Op. at 776, n.7. This reflects a policy preference rather than principles of interpretation. This Court's principles of interpretation "are not intended to be applied haphazardly or indiscriminately to achieve a desired result." Parktown Imps., 278 S.W.3d at 672. "This Court is constrained by the language of [a rule] when construing it and may not find a meaning that is not supported by the language of the rule." Buemi, 359 S.W.3d at 20.
If this Court believes it would be good policy for Rule 69.025 to apply to juror nondisclosure of any facts readily apparent from a Case.net search, then it may simply amend the rule to provide for such application in future cases. See Mo. Const. art. V, § 5. In the meantime, this Court must apply the rule as it is written. As written, Rule 69.025 does not apply to a claim that a juror failed to disclose that a family member had been involved in an automobile accident. Accordingly, the common law, not Rule 69.025, applies to this issue, and BNSF preserved its juror nondisclosure claim by raising the claim when it first gained actual knowledge of the nondisclosure. See Brines by and through Harlan v. Cibis, 882 S.W.2d 138, 140 (Mo. banc 1994). I therefore dissent.
