April 15, 2016

Effective January 1, 2017

 
IN RE: REVISIONS TO MAI-CIVIL
TABLE OF INSTRUCTIONS




1.00 [2017 Revision] General Comment
 
 
A.  Chapter 1 prohibits certain instructions.  It is not intended to be an exhaustive list of prohibited instructions.  There may be other types of instructions that are prohibited by case law or rule.
 
B.  For example, “abstract statements of law” and “act of God” instructions have routinely been condemned by the courts.  Rule 70 prohibits instructions that submit to the jury or require findings of “detailed evidentiary facts.”
 
C.  Because an instruction is prohibited on a subject does not necessarily mean that evidence and argument are also prohibited.  The classic example is the prohibited “sole cause” instruction.  See MAI 1.03.  It is well established that “sole cause” evidence and argument are permissible, though an instruction on the subject is not.
 
D.  The Committee notes that in Pisoni v. Steak ‘N Shake Operations, Inc., 468 S.W.3d 922 (Mo. App. 2015), the court reviewed the Missouri case law on the subject of “spoliation” in the context of an adverse inference instruction.  The Pisoni court stated that spoliation, when established, may result in different remedies allowed by the trial court - including an adverse inference argument, preclusion of the offending party’s evidence as to what the missing evidence showed, and/or an “admission” against the offending party – but that a jury instruction on “spoliation” has not been approved under current Missouri case law.  Cf: Freight House Lofts Condo Association v. VSI Meters Services, Inc., 402 S.W.3d 586, 594-596 (Mo. App. 2013).  The court cited with approval the Committee’s observations in MAI (Civil), Why and How to Instruct a Jury, at LXXV-LXXVI, as follows:
 

The Committee continues to adhere to that view, but notes that other remedies may be properly fashioned by the trial court under circumstances different from those in reported Missouri decisions.  The Supreme Court has not definitively addressed these issues.

 
2.00 [2017 Revision] Submissions in Multi-Party or in Multi-Claim Litigation - General Comment
 
 
 
The former MAI system worked well in a simple case where one plaintiff brings one claim against one defendant.  As litigation has become more complex, it is not unusual for several plaintiffs and several defendants to be combined in the same lawsuit with the various plaintiffs often making claims for different losses based on differing theories of liability and with the various defendants counterclaiming or maintaining cross-claims or filing third-party petitions for apportionment of fault or asserting other theories of recovery.  The former MAI system has been modified and supplemented to meet the needs of such multi-claim litigation.

 
Much of the complexity in instructions in such a case results from the large number of instructions necessary to properly submit the case. To aid the jury in understanding and organizing this large number of instructions, the Court has adopted a method of arranging and organizing the various instructions in such a case by grouping together the general instructions that apply generally to the overall litigation and placing in separate packages the specific instructions that apply to a particular claim. This system, called “packaging,” is to be used as described herein in all cases having more than one verdict form.  Such a case (one having more than one verdict form) is referred to herein as a “complex case.”  The primary purpose of “packaging” is to aid the jury in complex litigation in moving through the instructions and, thus, through their deliberations from one claim to another in an organized and understandable manner.  One could describe the concept of “packaging” as a series of mini-sets of instructions, each of which is a subdivision of the overall set of instructions in the case.  Once the general instructions that apply to the entire case have been given, each “package” will consist of the remaining instructions applicable to a particular claim followed at the end of the package by the verdict form on which the jury will return its verdict as to that claim.
 
After the close of the evidence, MAI 2.03, an introductory instruction, is to be given in every case. This is to be followed by all of the instructions that apply generally to more than one claim in the case.  This will include the burden of proof instruction, definition instructions of terms used in more than one claim, MAI 2.02 Facts Not Assumed, which is no longer required to be given immediately before the Form of Verdict instruction, and MAI 2.04, which designates the number of claims in a multi-claim case and instructs that nine or more jurors may return a verdict.
 
The remaining instructions that apply to a particular claim will then be “packaged” by claim.  Each of these packages will begin with MAI 2.05, which specifies the particular instructions that apply to the particular claim described therein and refers the jury to the appropriate verdict form.  MAI 2.05 will be followed by all of the instructions that apply only to that particular claim.  These would include one or more verdict directors, one or more converse instructions if they are used, the appropriate affirmative defense instruction, the damage instruction, and any definitions that are applicable only to this claim.  The last page of the package will be the verdict form, which will be designated alphabetically (A, B, C, etc.) rather than numerically.  Further packages consisting of MAI 2.05, the other instructions applying to a particular claim, and a further verdict form will make up such other packages as are necessary to submit the case fully in an organized and understandable manner.
 
The set of general instructions and each package is to be stapled separately or similarly fastened so as not to be readily separated.  These packages should then be stacked together in the appropriate order, and the entire set of instructions secured together with a removable fastener such as a paper clip or other appropriate binder clip. The arrangement should be such that the jury can separate the packages if they wish, and each package, except the package of general instructions, will begin with MAI 2.05 and end with a verdict form that the jury will complete.

 
“Packaging” is designed to simplify the submission of complex cases.  In a simple case, where only one claim is involved, “packaging” is not necessary, and to require its use in such a case would only serve to complicate the system.  At the same time, the Court does not wish to create a trap for the unwary by drawing technical distinctions as to when “packaging” is or is not required.  As discussed in Section E hereof, the basis for “packaging” (by claim or otherwise) is for the determination of the trial judge based on what will present the case to the jury in a manner that will best allow them to consider all the issues in the case in an organized, understandable, and comprehensible manner.  If the basis for “packaging” decided upon by the trial court results in two or more packages in addition to the package of general instructions, then the general “packaging” rules for multi-claim cases will apply.  A simple and effective way to recognize and describe such a case is that it will be any case in which two or more verdict forms are used (since each package other than the package of general instructions ends with a verdict form). In a case in which there is only one verdict form, there will be only one package containing both the general instructions and all other instructions.  In such a case, referred to herein as a “simple” case, the court will give the same general instructions in the same order as is described in Section B above for multi-claim cases. These general instructions will be followed by the other instructions that would otherwise be separately packaged in a multi-claim case except that MAI 2.05 will not be given in a “simple” case.  Thus, the single package of instructions in a simple case will begin with MAI 2.01 and end with the verdict form.
 
In summary, the packaging rules to be followed in multi-claim cases will be modified as follows for the submission of a “simple” case (one containing only one verdict form):
 
1.  MAI 2.04 is to be modified by omitting the first sentence (see bracketed sentence footnoted number 1 in MAI 2.04);
 
2.  MAI 2.05 is not to be given in the “simple” case; and
 
3.  All instructions will be contained in a single package.
 
     
    Verdict forms will carry a letter designation rather than a number, i.e., A, B, C, etc.  All other instructions will be numbered sequentially beginning with MAI 2.01, which will be Instruction No. 1, and followed by MAI 2.03 numbered Instruction No. 2 and the other general instructions.  The numbering will then continue sequentially through the instructions in the various packages so that, for example, in a complex case one package may consist of instructions Nos. 8 through 14 and Verdict Form A and the next package of instructions Nos. 15 through 21 and verdict form B, etc.
 
 
Subject to the specific directions set out herein, the trial judge has discretion to determine the order in which the instructions will be given.  It will be up to the trial judge to determine the basis for “packaging” of a complex case so that the overall instructions will present the case to the jury in a manner that will best allow them to consider all of the issues in the case in an organized, understandable, and comprehensible manner.  In most instances, the case should be packaged so that the claim for damages of each party asserting a claim for damages will be covered by a separate package.
 
For example, if plaintiff A is claiming damages for personal injuries, all of the instructions applicable to this claim would be included in one package.  If plaintiff A is proceeding on alternative theories of negligence and strict liability, the verdict directors for both such theories would be included in the same package.  If plaintiff A is making his claim against both defendant X and defendant Y, the verdict directors against both defendants would be included in the package.  If these defendants claim that plaintiff A was comparatively negligent, the comparative negligence instruction would also be included in the package.  Any other instructions necessary to this claim, such as plaintiff A's damage instruction, would likewise be included in the package.
 
If defendant X is asserting a counterclaim against plaintiff A for property damage, this would constitute a second claim and would be submitted in a second package.  If defendant Y was claiming Apportionment of Fault from defendant X, this would be a third claim and would be submitted in a third package.
 
While “packaging” based on the claim asserted will be the most common basis upon which most cases will be packaged, there is no rigid requirement as to the criteria for “packaging.”  It should be done in any manner that will submit the case to the jury in a well-organized, understandable, and comprehensible manner.
 
 
MAI 2.05, the introductory instruction for each individual package, and the verdict form should include a descriptive phrase that describes and identifies the claim that is being submitted in that package.  Since MAI 2.05 limits the intervening instructions to the claim described in MAI 2.05 and submitted in that package, it is not necessary that each instruction in the package contain this descriptive phrase.  However, certain instructions in the package may require further identification if they do not apply to the entire claim covered by the package.  For example, if the package submits a claim against more than one defendant requiring separate verdict directors for each defendant, the verdict directors must be modified to identify the defendant to which each applies.  In such a situation, the first line of the instruction would be changed to read, “Your Verdict must be for plaintiff Jones against defendant Smith if you believe:”.
 
Identifying phrases should be as non-inflammatory and as neutral as possible and should avoid the assumption of disputed facts.  The following are examples of the types of identifying phrases that are appropriate to describe the claim in the first (MAI 2.05) and last (verdict form) instruction of each package:
 
 
If plaintiff claims damages for more than one type of injury in the same package (such as for his own personal injuries and for loss of consortium for injuries to his wife) under circumstances where he may be entitled to recover one type of damage even if he does not recover on the other, a description of both claims in the verdict form may be misleading because it may suggest he cannot recover on either unless he recovers on both.  For example, the verdict form would state, “On the claim of plaintiff for personal injuries and for damages for any injury to his wife, against defendant, we, the undersigned jurors, find in favor of: ....”  This ambiguity can be avoided by omitting the specific reference to both types of damages so that the verdict form will read, “On the claim of plaintiff against defendant, we, the undersigned jurors, find in favor of: ....”  The same problem arises when plaintiff seeks damages for both personal injury and property damage.
 
 
In complex litigation with multiple theories of liability (e.g.—commercial litigation), elements of damages under various theories may be identical in some respects, distinct in others, and overlapping in still others.  The issue will then arise as to whether multiple theories should be submitted in a single package (with a single damage instruction and a single verdict form) or in separate packages (with a separate damage instruction and a separate verdict form for each theory).  The Committee takes no position requiring a particular approach in all such cases.  The facts and law applicable to each case will determine the best approach in a given case.  The problems to be considered in making the selection of a single package or multiple package approach include the issues of duplicate or overlapping damages, the judgment to be entered if a jury returns damages on more than one theory submitted as separate packages, and the effect of a reversal on appeal on one theory but an affirmance on another.  Care should be taken to thoroughly consider the impact of duplicate or overlapping damages under separate theories so that the jury is given adequate guidance on the elements of damages and an appropriate means to express the jury's intent without confusion as to the total judgment to be entered by the trial court.  See: Illustration 35.15 for a method of submitting multiple theories in a single package, and MAI 36.02, MAI 36.10, and MAI 36.22 for methods of fashioning a verdict form with categories of damages.
 
 
MAI 2.04 instructs a jury that nine or more jurors must agree in order to return any verdict.  See article I, sec. 22(a) of the Missouri Constitution and sec. 494.490, RSMo 2000.
 
In dicta, the Supreme Court stated that the same nine jurors must agree on all elements necessary for a verdict for or against any particular party.  Stacy v. Truman Med. Ctr., 836 S.W.2d 911, 924 (Mo. banc 1992), abrogated on other grounds, Southers v. City of Farmington, 263 S.W.3d 603 (Mo. banc 2008).  See also, State ex rel. Boyer v. Perigo, 979 S.W.2d 953, 956 (Mo. App. 1998).
 
The general rule is not applicable where the jury is required to return more than one verdict.  Where there are multiple packages, each with a separate verdict form, a different group of nine jurors can agree to all of the elements of each verdict.  Mackey v. Smith, 438 S.W.3d 465, 474 (Mo. App. 2014); Kemp v. Burlington Northern R. Co., 930 S.W.2d 10, 12 (Mo. App. 1996).  Nine jurors may agree to liability and damages, but a different nine may apportion fault among the defendants.  Powell v. Norman Lines, Inc., 674 S.W.2d 191, 199 (Mo. App. 1984).  A different nine also may assess the amount of punitive damages in the second stage of trial under Illustration 35.19 in a bifurcated trial after nine jurors agree on liability, amount of compensatory damages, and liability for punitive damages in the first stage of trial.  Ellison v. O’Reilly Automotive Store, Inc., 463 S.W.3d 426, 439 (Mo. App. 2015).  Jurors who disagree with the remaining jurors on the resolution of one package (verdict) may not be prohibited by jury instructions from deliberating on another package (verdict).  To do so would deny the parties the right to a jury of twelve persons deliberating on all issues.  Ellison, 463 S.W.3d at 440; Mackey, 438 S.W.3d at 474; Powell, 674 S.W.2d at 199.
 
See Illustrations 35.02, 35.03, 35.04, 35.05, 35.15, and 35.19 for examples of cases in which packaging is employed to submit multiple claims.  On each verdict form within those Illustrations, a different nine may return any verdict in accordance with MAI 2.04.
 
 
The unique virtue of the MAI system is the recognition that the primary purpose of the instructions in a case is to convey to the jury the law applicable to the case in an understandable, non-argumentative and non-technical manner.  “Packaging” is designed to help meet this goal.  No rigid set of specific rules can ensure understanding and comprehension for every juror and every type of complex case.  “Packaging” is not intended to be a rigid set of rules; it is a tool for lawyers and judges to use with judgment and with consideration for all the facts and circumstances involved in the particular case.  If “packaging” is misused as a tool of advocacy to benefit one party and to the detriment of another, it will not serve the purpose for which it is designed.  When lawyers and judges use “packaging” in a bona fide effort to present the jury with an organized, understandable, and comprehensible set of instructions, it will serve as a major step forward in improving and perfecting the MAI system to meet the demands of modern litigation.

 
2.04 [1981 Revision] Return of Verdict
 
 
 
MAI 2.04 instructs a jury that nine or more jurors must agree in order to return any verdict.  See article I, sec. 22(a) of the Missouri Constitution and sec. 494.490, RSMo 2000.
 
In dicta, the Supreme Court stated that the same nine jurors must agree on all elements necessary for a verdict for or against any particular party.  Stacy v. Truman Med. Ctr., 836 S.W.2d 911, 924 (Mo. banc 1992), abrogated on other grounds, Southers v. City of Farmington, 263 S.W.3d 603 (Mo. banc 2008).  See also, State ex rel. Boyer v. Perigo, 979 S.W.2d 953, 956 (Mo. App. 1998).
 
The general rule is not applicable where the jury is required to return more than one verdict.  Where there are multiple packages, each with a separate verdict form, a different group of nine jurors can agree to all of the elements of each verdict.  Mackey v. Smith, 438 S.W.3d 465, 474 (Mo. App. 2014); Kemp v. Burlington Northern R. Co., 930 S.W.2d 10, 12 (Mo. App. 1996).  Nine jurors may agree to liability and damages, but a different nine may apportion fault among the defendants.  Powell v. Norman Lines, Inc., 674 S.W.2d 191, 199 (Mo. App. 1984).  A different nine also may assess the amount of punitive damages in the second stage of trial under Illustration 35.19 in a bifurcated trial after nine jurors agree on liability, amount of compensatory damages, and liability for punitive damages in the first stage of trial.  Ellison v. O’Reilly Automotive Store, Inc., 463 S.W.3d 426, 439 (Mo. App. 2015).  Jurors who disagree with the remaining jurors on the resolution of one package (verdict) may not be prohibited by jury instructions from deliberating on another package (verdict).  To do so would deny the parties the right to a jury of twelve persons deliberating on all issues.  Ellison, 463 S.W.3d at 440; Mackey, 438 S.W.3d at 474; Powell, 674 S.W.2d at 199.
 
See Illustrations 35.02, 35.03, 35.04, 35.05, 35.15, and 35.19 for examples of cases in which packaging is employed to submit multiple claims.  On each verdict form within those Illustrations, a different nine may return any verdict in accordance with MAI 2.04.

 
3.04 [2017 Revision] Clear and Convincing - Gift
 
 
Your verdict will depend on the facts you believe after considering all the evidence.  The burden is upon (insert name of alleged donee) to cause you to believe by clear and convincing evidence that the (describe the property such as “bonds”) were a gift to [him, her] by the decedent.  In determining whether or not you believe any fact, you must consider only the evidence and the reasonable conclusions you draw from the evidence.
 
 
A.  This instruction is to be used in those cases where the proof must be “clear and convincing” or “clear, cogent and convincing.”  See In re Passman's Estate, 537 S.W.2d 380 (Mo. banc 1976).  These cases usually involve the issue of whether a gift was made (inter vivos or causa mortis).  Some of the gift cases before Passman called for “clear, cogent and convincing proof to convince the jury beyond a reasonable doubt.”  In Passman, the Court held that a special burden of proof instruction is required, but it rejected the argument that the modification must include “reasonable doubt” language.
 
B.  If the proposition to be established is other than a gift, the language of the first sentence of the instruction should be modified accordingly.
 
C.  If there is an affirmative defense or a counterclaim that has a different burden of proof than the clear and convincing standard, the instruction should be modified accordingly.  See MAI 3.06 and MAI 3.08 for a method of submitting different burdens of proof for different issues within the same instruction.

 
3.05 [2017 Revision] Libel or Slander - Plaintiff a Public Official or Public Figure
 
 
Your verdict will depend on the facts you believe after considering all the evidence.
 
The burden is on plaintiff to cause you to believe, by clear and convincing evidence, that:
 
 
There is a different burden of proof on all other facts.  On those other facts, the party who relies on any disputed fact has the burden to cause you to believe that such fact is more likely true than not true.
 
In determining whether or not you believe any fact, you must consider only the evidence and the reasonable conclusions you draw from the evidence.

 
3.06 [2017 Revision] Libel or Slander - Punitive Damages Sought by a Plaintiff Not a Public Official or Public Figure

    
Your verdict will depend on the facts you believe after considering all the evidence.  The party who relies upon any disputed fact has the burden to cause you to believe that such fact is more likely true than not true.  In determining whether or not you believe any fact, you must consider only the evidence and the reasonable conclusions you draw from the evidence.
    
There is a different burden of proof that applies only to punitive damages as submitted in the second paragraph of Instruction Number ____ (insert the number of the damage instruction, which will be MAI 4.15).   The plaintiff has the burden to cause you to believe that the evidence has clearly and convincingly established the facts necessary to recover punitive damages.

 
3.07 [2017 Revised] Clear and Convincing - Commitment for Mental Illness
 
    
    Your verdict will depend on the facts you believe after considering all the evidence.  The burden is upon petitioner to cause you to believe by clear and convincing evidence that respondent is mentally ill and, as a result, presents a likelihood of serious physical harm to himself/herself or others.  In determining whether or not you believe any fact, you must consider only the evidence and the reasonable conclusions you draw from the evidence.

 
3.08 [1998 Revision] Paternity Actions
 
 
 
A.  The bracketed sentence submits the appropriate burden of proof in accordance with §210.822.2, RSMo, in a case where the defendant submits evidence and an instruction to rebut the statutory presumption.  It should be used only if the defendant submits MAI 31.20 to rebut a statutory presumption.  The burden of proof to support the presumption or to otherwise support the plaintiff's claim remains on the plaintiff.   Section 210.822.2, RSMo, does not shift the burden of proof; rather, it places a separate and different burden on the defendant if he or she submits a rebuttal to the presumption.
 
B.  MAI 3.08, MAI 31.18, MAI 31.19, MAI 31.20, and MAI 36.28 were drafted for civil paternity actions under §§210.817 et seq., RSMo.  Effective July 1, 1987, §210.839.4 was amended to provide that no party in such a paternity action has a right to trial by jury.  The Committee has chosen not to withdraw or revise these instructions and the related verdict form in the event that they are instructive or perhaps useful in the future since the Supreme Court has held that the Parentage Act (§§210.817 et seq.) is not the exclusive means to determine paternity.  Matter of Nocita, 914 S.W.2d 358 (Mo. banc 1996); see MAI 3.01 (2016 Revision).

 
9.03 [2017 Revision] Burden of Proof
 
 
The burden is on the defendant to cause you to believe that defendant has sustained damage and the amount thereof.  In determining the amount of your verdict, you must consider only the evidence and the reasonable conclusions you draw from the evidence.

 
31.00 [2011 New] General Negligence—Single Negligent Act Submitted

 
A.  Where agency is in issue, see MAI 18.01.
 
B.  Where suit involves multiple causes of damages, see MAI 19.01.
 
C.  Where suit is for wrongful death, see MAI 20.01 and MAI 20.02.
 
D.  Where suit is for loss of services or medical expense of dependent, see MAI 31.04.
 
E.  The “general negligence” theory has been the subject of several cases and should not be confused with a “premises liability” theory.  For submission of a premises liability case, see Chapter 22.  The “general negligence” theory is premised on basic negligence principles of duty, breach of duty, and injury proximately caused by the breach of duty.  In a “general negligence” case, allegations are directed to the acts or omissions of the defendant and not to a possessor's liability for the condition of premises.  See Smith v. Dewitt and Associates, Inc., 279 S.W.3d 220 (Mo. App. 2009) (worker delivered cabinets to job site and fell from third floor guardrail, which collapsed due to alleged removal and reinstallation of rail by subcontractor using same nail holes); Cossey v. Air Systems International, Inc., 273 S.W.3d 588 (Mo. App. 2009) (bulk petroleum storage operator undertook but failed to ground and drain a tank in preparation for repair and relining of the tank by an independent contractor); Richey v. Philipp, 259 S.W.3d 1 (Mo. App. 2008) (insurance agent told insured that homeowner's insurance did not cover removal of tree limb from roof, and homeowner's brother fell from roof attempting to remove limb); Griffith v. Dominic, 254 S.W.3d 195 (Mo. App. 2008) (independent contractor working at abbey injured when a monk attempted to assist with moving drywall but caused dry wall to fall on contractor); Daoukas v. City of St. Louis, 228 S.W.3d 30 (Mo. App. 2007) (airport electrician had responsibility to de-energize electrical cabinets, failed to do so, and affirmatively dismantled interlock safety system, causing severe injuries to independent contractor working on cabinets); Nagaragadde v. Pandurangi, 216 S.W.3d 241 (Mo. App. 2007) (homeowner failed to extinguish ceremonial lamp burning in basement prayer area causing guest's sari to catch fire). Woodall v. Christian Hospital NE-NW, 473 S.W.3d 649 (Mo. App. 2015) (railing removed by defendant's employee submitted under general negligence as opposed to premises liability).

 
35.00 [2017 Revision] General Comment
 
 
1.  The Committee furnishes for your use illustrations prepared by the Committee in certain hypothetical cases using court-approved instructions.  If any conflict exists between an instruction and an illustration, the court-approved instruction governs.  Northeast Mo. Elec. Power Co-op. v. Fulkerson, 542 S.W.2d 26 (Mo. App. 1976); State ex rel. State Highway Com'n v. Schwartz, 526 S.W.2d 952 (Mo. App. 1975).
 
2.  In referring to the illustrations, care should be used to be certain that the illustration and its instructions apply to the facts and legal theory of the case being submitted and that none of the instructions used in the illustration has been revised by the Committee.  (Always check the most recent pocket part.)
 
3.  In the illustrations in this edition of MAI, factual situations may differ from those used in illustrations in prior editions of MAI.  The annotations to the prior illustrations will vary in applicability depending on the extent to which the former factual situation was carried over into the present illustration.
 
4.  The provisions of H.B. 393 (Laws 2005), applicable to actions filed after August 28, 2005, do not appear to impact jury instructions in the view of the Committee except: (1) on the subject of apportionment of fault in a medical malpractice case to a settling tortfeasor under §538.230 (repealed by H.B. 393) and (2) possibly the revisions by H.B. 393 with respect to punitive damages in §510.265 and §537.067, RSMo, which may or may not affect the method of submission of instructions on punitive damages in all cases.  The Committee takes no position on the meaning or impact of §510.265 or §537.067 on the method of submission of punitive damages.  The Committee takes no position on the constitutionality of any provision of H.B. 393.
 
5.  MAI 2.04 instructs a jury that nine or more jurors must agree in order to return any verdict.  See article I, sec. 22(a) of the Missouri Constitution and sec. 494.490, RSMo 2000.
 
In dicta, the Supreme Court stated that the same nine jurors must agree on all elements necessary for a verdict for or against any particular party.  Stacy v. Truman Med. Ctr., 836 S.W.2d 911, 924 (Mo. banc 1992), abrogated on other grounds, Southers v. City of Farmington, 263 S.W.3d 603 (Mo. banc 2008).  See also, State ex rel. Boyer v. Perigo, 979 S.W.2d 953, 956 (Mo. App. 1998).
 
The general rule is not applicable where the jury is required to return more than one verdict.  Where there are multiple packages, each with a separate verdict form, a different group of nine jurors can agree to all of the elements of each verdict.  Mackey v. Smith, 438 S.W.3d 465, 474 (Mo. App. 2014); Kemp v. Burlington Northern R. Co., 930 S.W.2d 10, 12 (Mo. App. 1996).  Nine jurors may agree to liability and damages, but a different nine may apportion fault among the defendants.  Powell v. Norman Lines, Inc., 674 S.W.2d 191, 199 (Mo. App. 1984).  A different nine also may assess the amount of punitive damages in the second stage of trial under Illustration 35.19 in a bifurcated trial after nine jurors agree on liability, amount of compensatory damages, and liability for punitive damages in the first stage of trial.  Ellison v. O’Reilly Automotive Store, Inc., 463 S.W.3d 426, 439 (Mo. App. 2015).  Jurors who disagree with the remaining jurors on the resolution of one package (verdict) may not be prohibited by jury instructions from deliberating on another package (verdict).  To do so would deny the parties the right to a jury of twelve persons deliberating on all issues.  Ellison, 463 S.W.3d at 440; Mackey, 438 S.W.3d at 474; Powell, 674 S.W.2d at 199.
 
See Illustrations 35.02, 35.03, 35.04, 35.05, 35.15, and 35.19 for examples of cases in which packaging is employed to submit multiple claims.  On each verdict form within those Illustrations, a different nine may return any verdict in accordance with MAI 2.04.

 
36.23 [1991 New] Combined Injury and Derivative Claims
 
 
1.  Verdicts will be designated alphabetically (A, B, C, etc.).
 
2.  Insert if more than one defendant.
 
3.  Select the appropriate word(s).
 
Parenthetical directions to “(state the name)” in the above form are addressed to counsel.  The appropriate party's name should be typed in the prepared verdict at those points.  All other directions are for the jury and should be submitted to the jury as written.
 
A separate verdict form must be used for each “package” other than the package containing the general instructions.  The verdict form will be the last instruction in each such package.  See MAI 2.00 General Comment for an explanation of “packaging”.
 
Verdict forms should not be read by the court to the jury.
 
4.  Of course, if the verdict is in favor of the defendant and against the plaintiff on the primary claim, by operation of law, judgment must be entered in favor of the defendant on the derivative claim.