Court of Appeals of Missouri, Southern District, Second Division
RITA F. GRAVATT, Plaintiff-Appellant,
DARYL L. SIMS and JAMES S. BARKER, d/b/a Barker Tree Service, and CYNTHIA A. BARKER, d/b/a Barker Tree Service, Defendants-Respondents.
FROM THE CIRCUIT COURT OF TANEY COUNTY Honorable Laura J.
Johnson, Circuit Judge.
WILLIAM W. FRANCIS, JR., J.
Gravatt ("Gravatt") filed suit against Daryl L.
Sims ("Sims"), and James S. Barker, d/b/a Barker
Tree Service and Cynthia A. Barker, d/b/a Barker Tree Service
(collectively the "Barkers") following an
automobile accident. The jury returned
a verdict in favor of Sims and the Barkers, and against
Gravatt. This appeal followed. Gravatt raises two points of
error. Finding no merit to any of Gravatt's points, we
affirm the judgment of the trial court.
and Procedural History
24, 2009, Gravatt and Sims were involved in a head-on
collision on East Highway 76 in Branson. Gravatt sustained
serious personal injuries in the accident.
29, 2011, Gravatt filed a petition for damages in Taney
County against Sims and Sims' employer, the Barkers,
under whose authority Gravatt claimed Sims was acting at the
time of the crash.
commenced on July 20, 2015, and the central contested issue
was whether it was Gravatt or Sims that crossed the
centerline, thereby causing the head-on collision.
the close of the evidence, a jury instructions conference was
held. The instructions conference proceeded with most of the
discussion being between the trial court and Sims'
attorney. The instructions conference, comprising nine pages
of transcript, indicates that Gravatt's attorney spoke
four times: twice in non-substantive contributions, once to
consent to an instruction, and once to indicate that he had
no other objections or additions to the instructions at the
close of the conference. Gravatt's attorney made no
objection on the record to any of the jury instructions,
either during the jury instructions conference or at any
other time during proceedings.
24, 2015, the trial court entered its judgment consistent
with the jury's verdict. On August 10, 2015, Gravatt
filed her "Amended Motion for New Trial" asserting,
in relevant part, that the trial court gave "erroneous
or incomplete jury instructions" to the jury. The trial
court denied the motion. This appeal followed.
points on appeal, Gravatt asserts the trial court erred in
failing to include a verdict director from MAI 17.04, and in
failing to hold a proper instructions conference pursuant to
issues for our determination are whether the trial court
erred in failing to: (1) sua sponte include verdict
director MAI 17.04 in the jury instructions, or (2) hold a
proper instruction conference pursuant to Rule 70.02(e).
a jury was instructed properly is a question of law this
Court reviews de novo." Hervey v. Mo. Dept.
of Corr., 379 S.W.3d 156, 159 (Mo. banc 2012).
"Instructional errors are reversed only if the error
resulted in prejudice that materially affects the merits of