A party is entitled to choose the theory of recovery on which to submit his case to the jury. See Yoos v. Jewish Hospital of St. Louis, 645 S.W.2d 177, 191 (Mo.App. E.D. 1982); Certa v. Associated Building Center, Inc., 560 S.W.2d 593, 596 (Mo.App. 1977). And, a party is entitled to a verdict-directing instruction predicated on his theory of the case, if that theory is supported by the evidence.
A party is entitled to choose the theory of recovery on which to submit his case to the jury. SeeYoos v. Jewish Hospital of St. Louis, 645 S.W.2d 177, 191 (Mo.App.E.D. 1982); Certa v. Associated Building Center, Inc., 560 S.W.2d 593, 596 (Mo.App. 1977). And, a party is entitled to a verdict-directing instruction predicated on his theory of the case, if that theory is supported by the evidence.
Even in a situation where the evidence could support two theories of recovery to which two separate MAI instructions would be applicable, the plaintiff has the right to elect the theory on which to submit her case and to select the appropriate MAI verdict director. Certa v. Associated Bldg. Ctr., Inc., 560 S.W.2d 593, 596 (Mo.App. 1977). Malati could have pled facts alleging that the routine use of a small oil lamp on the floor of the home was a passive, dangerous condition of the property, but instead she asserted that Raghu's failure to extinguish the lamp on one occasion constituted a single negligent act.
The tests for propriety of a particular jury instruction and closing argument are essentially the same; both must be supported by sufficient evidence. Compare Certa v. Associated Building Center, Inc., 560 S.W.2d 593, 596-97 (Mo.App. 1977), with Harrison v. Weller, 423 S.W.2d 226, 231 (Mo.App. 1967). While there may indeed be instances where a trial court acts within its discretion in authorizing closing argument, without objection, upon an issue for which specific jury instruction is refused, in this case, we can find no justifiable distinction between the test of "sufficiency" called for by footnote 5 to MAI § 5.01, and that applied to authorizing closing argument on the issue of loss of future comfort and companionship.
In making that determination we view the evidence in the light most favorable to plaintiff's theory. Certa v. Associated Bldg. Center, Inc., 560 S.W.2d 593 (Mo.App. 1977). The jury could have found (1) (as Whitehead testified) that Moore stopped his vehicle near the center line with his red light flashing, blocking the northbound lanes of highway I-55, or (2) (as Moore testified) that he stopped his vehicle at the bottom of the ramp partly on the shoulder of the east side of main travel lanes facing south with his red light flashing and thereafter turned sharply to the left, pulling up onto the ramp when he saw the cars emerge from under the overpass, or (3) (as Smith testified) that Moore's vehicle was positioned on the concrete portion of the ramp.
We are to disregard all contrary evidence and inferences. Id. at 341 ( citing Cowan v. Perryman, 740 S.W.2d 303, 304 (Mo.App. 1987)); Certa v. Associated Building Center, Inc., 560 S.W.2d 593, 597 (Mo.App. 1977). Considering the evidence from that perspective, we find Carbo's testimony supports submission of comparative fault.
Defendant is entitled to the benefit of plaintiffs' evidence favorable to defendant and not contradicted by defendant's evidence or defendant's theory of the case. Certa v. Associated Bldg. Center, Inc., 560 S.W.2d 593, 597[8] (Mo.App. 1977). Section 304.
Plaintiffs' evidence at trial supported this theory. A plaintiff is entitled to choose the theory of recovery on which to submit his case to the jury as long as there is sufficient evidence to support him. Certa v. Associated Bldg. Center, Inc., 560 S.W.2d 593 (Mo.App. 1977). This principle necessarily includes the submitted verdict directing instructions.
Appellant does not claim that decedent was contributorily negligent because of a sudden stop or slowing. He contends that this was an occasion where the stopping or slowing was neither sudden nor unsignalled but still negligent as discussed in the committee's comments to MAI 17.20. He claims that MAI 17.20 as modified was proper and MAI 17.11 and 17.12 were not. Implicit in the use of MAI 17.12 "is the belief that under the applicable facts a gradual or well signalled stop would have been negligent and would have given those who were following the opportunity to avoid a collision". Certa v. Associated Building Center, Inc., 560 S.W.2d 593, 597 (Mo.App. 1977). In that well reasoned opinion the court considered the distinction between using MAI 17.12 and MAI 17.20. It held that MAI 17.20 is "appropriate and mandatory in a situation in which the theory of negligence lies not in the nature of the stop, be it unsignalled, sudden or otherwise, but in the fact that the party stopped at all."
The plaintiff is entitled to a verdict direction instruction on his theory of the case if it is supported by the evidence. Certa v. Associated Bldg. Center, Inc., 560 S.W.2d 593, 596 (Mo.App. 1979). The plaintiff tendered a proper lookout instruction which was supported by the evidence.