burden of proof instruction in Missouri

2006Id.; see also, Crawford v. Smith, 470 S.W.2d 529, 531-32 (Mo.1971) (“[I]n a fraudulent misrepresentation case tried to a jury, the burden of proof is not greater than in other cases tried to a jury, and ... the proper burden of proof instruction is MAI 3.01.”).

1993In this posture, we cannot conclude the bankruptcy court held Plaintiff to the “clear and convincing standard” and ignored the proper burden of proof earlier pronounced by Grogan. 6 In Missouri, the burden of proof in a fraud case tried to a jury is no greater than in any other case tried to a jury, and the proper burden of proof instruction is MAI 3.01. 7 Crawford v. Smith, 470 S.W.2d 529, 531-32 (Mo. banc 1971) (rejecting notion that fraud must be proved by clear, cogent, and convincing evidence).

1976Defendant contends that the court erred in giving instruction No. 3, 6 because the “ * * * instruction, taken as a whole, lessens the [State’s] burden of proof, particularly since it equates ‘reasonable doubt’ to a ‘substantial doubt touching on the defendant’s guilt and not a mere possibility of defendant’s innocence.’ ” In this connection, he cites State v. Davis, 482 S.W.2d 486 (Mo.1972), 7 and relies on an opinion by Seiler, J., concurring in result only ( 482 S.W.2d at 489 ) which recognized that the instruction had been approved, but expressed the hope that the burden of proof instructio

1975This same point has been before the appellate courts of this State on numerous occasions and at the time this case was tried, June 18, 1973, this was the instruction approved by the Supreme Court en banc, State v. Scott, 491 S.W.2d 514, 520 [11] (1973).

2014“In cases where a complainant alleges that a regulated utility is violating the law, its own tariff, or is otherwise engaging in unjust or unreasonable actions, ... the burden of proof at hearing rests with complainant.” AG Processing, Inc. v. KCP & L Greater Mo. Operations Co., 385 S.W.3d 511, 514 (Mo.App.2012) (citations and internal quotation marks omitted).

2014"In cases where a complainant alleges that a regulated utility is violating the law, its own tariff, or is otherwise engaging in unjust or unreasonable actions, . . . the burden of proof at hearing rests with complainant." AG Processing, Inc. v. KCP & L Greater Mo. Operations Co., 385 S.W.3d 511, 514 (Mo. App. 2012) (citations and internal quotation marks omitted).

2002Although aggravating circumstances damages and punitive damages are treated as akin for purposes of the burden of proof instruction (M.A.I. 3.01; Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104, 111 (Mo. banc 1996)), the Commissioner makes no argument that damages for aggravating circumstances in a wrongful death case cannot be recovered from the Fund.

2001Specifically, he complains that the burden of proof instruction did not advise the jury that an award of punitive damages must be *588 supported by “clear and convincing evidence” as required by Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104, 111 (Mo.banc 1996), and incorporated in M.A.I. 3.01.

1987We cannot improve what was said in the majority opinion in Pendergrass, id. at 833-34, authored by Prewitt, P.J., or in the concurring opinion in Pendergrass, id. at 834-36, authored by Maus, J.

1987We cannot improve what was said in the majority opinion in Pendergrass, id. at 833-34, authored by Prewitt, P.J., or in the concurring opinion in Pendergrass, id. at 834-36, authored by Maus, J.

1963The next year this court again criticized a burden of proof instruction using the phrase, to the reasonable satisfaction of the jury, in Stumpf v. Panhandle Eastern Pipeline Co. (1945), 354 Mo. 208 , 189 S.W.2d 223, 229 [13, 14].

1963The next year this court again criticized a burden of proof instruction using the phrase, to the reasonable satisfaction of the jury, in Stumpf v. Panhandle Eastern Pipeline Co. (1945), 354 Mo. 208 , 189 S.W.2d 223, 229 [13, 14].

1959See, for example, the burden of proof instructions set forth in Nelson v. Tayon, Mo.Sup., 265 S.W.2d 409 and Osborne v. Goodman, Mo.Sup., 289 S.W.2d 68 .

1958As stated in Nelson v. Tayon, Mo., 265 S.W.2d 409, 414 [1]: "When * * * the instructions, read and construed as a whole, contain a complete exposition of the law necessary to guide the jury in arriving at a verdict and are not contradictory, the verdict will be sustained even though one or more of them, separately considered, would have been misleading had it or they not been supplemented or explained by the others." See also Gladden v. Missouri Public Service Co., Mo., 277 S.W.2d 510, 520 [13]; West v. St.

1983Plaintiffs cite the case of Arnel v. Roettgen, 530 S.W.2d 20 (Mo.App.1975), where under an earlier MAI burden-of-proof instruction, the jury was told: “The burden is upon plaintiff to cause you to believe the propositions necessary to support his claim against defendant.” 530 S.W.2d at 21 .

1979Plaintiff relies on Arnel v. Roettgen, 530 S.W.2d 20 (Mo. App.1975) where the court held, in a personal injury action, that the burden of proof instruction was erroneous in omitting to tell the jury that the burden was on the defendant with respect to the affirmative defense of contributory negligence and rejected the defendant’s contention that the plaintiff invited the error by preparing and submitting the erroneous burden of proof instruction.

2008The Passman case addressed the correct burden of proof instruction to provide a jury “as to the burden placed on a party claiming an inter vivos gift after the death of an alleged donor.” Id. at 381 .

1980Respondent contends former MAI 3.01 should have been modified to require the petitioner to support her claim by proof which was “clear, cogent, and convincing.” See Committee Comments to MAI 3.01; In re Passman’s Estate, 537 S.W.2d 380, 384 (Mo.1976).

1986Notes on Use, MAI No. 3.01; Sears, Roebuck and Co. v. Peerless Products, Inc., 539 S.W.2d 768, 770 (Mo.App.1976).

1984MAI 3.01, Sears, Roebuck & Co. v. Peerless Products, Inc., 539 S.W.2d 768 (Mo.App.1976).

1975State v. Wilfong, 438 S.W.2d 265 (Mo.1969), cert. denied, 396 U.S. 995 , 90 S.Ct. 496 , 24 L.Ed.2d *311 460 (1969).

1974State v. Barton, 361 Mo. 780 , 236 S.W.2d 596 (banc 1931); State v. Washington, 364 S.W.2d 572, 576 (Mo.1963); State v. Wilfong, 438 S.W.2d 265, 266 (Mo.1969), cert. den., 396 U. S. 995 , 90 S.Ct. 496 , 24 L.Ed.2d 460 .” It is unassailably explicit in Tindall that omission of an affirmative statement that the burden of proof was on the state did not render Instruction No. 6 erroneous.

1965The defendant cited the cases of Lebow v. Missouri Public Service Company, Mo., 270 S.W.2d 713 and Hustad v. Cooney, Mo., 308 S.W.2d 647 , both of which deal with burden of proof instructions in civil actions based on negligence as distinguished from a criminal action and are clearly not in point.

1963In Hustad v. Cooney, Mo. (1958), 308 S.W.2d 647, 650, 651 , the court held that a burden of proof instruction employing the phrase “to your reasonable satisfaction” was not in the circumstances of that case “so prejudicially erroneous as to demand the granting of a new trial.” In 1958 in Ilgenfritz v. Quinn, Mo., 318 S.W.2d 186 , this court affirmed the order of the trial court granting a new trial because it had erred in giving a burden of proof instruction containing the direction that the charge of negligence had to be sustained by “the preponderance, that is, the greater weight of the cred

1963In 1953 in Machens v. Machens, Mo., 263 S.W.2d 724, 731, 732 , this court -held that a burden of proof instruction in a will contest case which used the expressions “by a preponderance of the evidence and .to your satisfaction” and “to your satisfaction by a preponderance of the evidence” was erroneous under the rule announced in Pulse v. Jones, supra, but that examining the entire submission the instruction in that case did not constitute reversible error, particularly in view of the fact that another instruction correctly stated the *618 burden of proof to be by a preponderance of the eviden

1958Rasp v. Baumbach, Mo., 223 S.W.2d 472 ; Johnson v. Dawidoff, 352 Mo. 343 , 177 S.W.2d 467 ; Machens v. Machens, supra; Pulse v. Jones, supra. In short, as to all of these instructions, it is not demonstrable that there was such error materially affecting the merits of the action, V.A.M.S. § 512.160, or the plaintiff’s right to a fair trial as to demand the granting of a new trial by this court.

1963This court said as long ago as 1935 in Rouchene v. Gamble Construction Co., 338 Mo. 123 , 89 S.W.2d 58, 63 [12], that a proper burden of proof instruction should consist of a statement as to which party had the burden, accompanied by a “clear definition of preponderance of evidence, informing the jury that what is meant thereby is evidence which is more convincing to them * * * than that which is offered in opposition thereto.” Since that time many cases have considered the phrases in question where one or the other has been used and, in some instances, where both phrases have been used in the

1963This court said as long ago as 1935 in Rouchene v. Gamble Construction Co., 338 Mo. 123 , 89 S.W.2d 58, 63 [12], that a proper burden of proof instruction should consist of a statement as to which party had the burden, accompanied by a “clear definition of preponderance of evidence, informing the jury that what is meant thereby is evidence which is more convincing to them * * * than that which is offered in opposition thereto.” Since that time many cases have considered the phrases in question where one or the other has been used and, in some instances, where both phrases have been used in the

1963Co. (1942), 349 Mo. 1249 , 164 S.W.2d 336, 340, 341 , 147 A.L.R. 372 , this court pointed out that a burden of proof instruction which required plaintiff to prove “to your satisfaction by a preponderance or greater *617 weight of the testimony” denoted a greater degree of proof than a requirement that plaintiff prove his case by a preponderance or greater weight of the evidence.

1963Co. (1942), 349 Mo. 1249 , 164 S.W.2d 336, 340, 341 , 147 A.L.R. 372 , this court pointed out that a burden of proof instruction which required plaintiff to prove “to your satisfaction by a preponderance or greater *617 weight of the testimony” denoted a greater degree of proof than a requirement that plaintiff prove his case by a preponderance or greater weight of the evidence.

1963The court there suggested that inasmuch as that case was being reversed and remanded for error in another instruction, it would not decide whether the burden of proof instruction constituted reversible error, but that what the court had said about it should be “a sufficient warning to the bar and trial courts to observe the admonition in the Rouchene case, supra, as to burden of proof instructions.” In Johnson v. Dawidoff (1944), 352 Mo. 343 , 177 S.W.2d 467, 472 [8], the phrase “to the reasonable satisfaction of the jury” in the burden of proof instruction was criticized as casting a greater

1963The court there suggested that inasmuch as that case was being reversed and remanded for error in another instruction, it would not decide whether the burden of proof instruction constituted reversible error, but that what the court had said about it should be “a sufficient warning to the bar and trial courts to observe the admonition in the Rouchene case, supra, as to burden of proof instructions.” In Johnson v. Dawidoff (1944), 352 Mo. 343 , 177 S.W.2d 467, 472 [8], the phrase “to the reasonable satisfaction of the jury” in the burden of proof instruction was criticized as casting a greater

2020Mo. Apr. 22, 2016) (emphasis added).8 Similarly, here, because no real estate conveyances were part of the joint venture agreement in question, the burden of proof standard is preponderance of the evidence.9 Jury Instruction No. 4, given here, instructed accordingly, directing in relevant part, that “[t]he 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.” See State Bd. of Nursing v. Berry, 32 S.W.3d 638, 642 (Mo. App. W.D. 2000) (explaining that “[p]reponderance of the evidence is defined as that degree of evidence

2020Mo. Apr. 22, 2016) (emphasis added).8 Similarly, here, because no real estate conveyances were part of the joint venture agreement in question, the burden of proof standard is preponderance of the evidence.9 Jury Instruction No. 4, given here, instructed accordingly, directing in relevant part, that “[t]he 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.” See State Bd. of Nursing v. Berry, 32 S.W.3d 638, 642 (Mo. App. W.D. 2000) (explaining that “[p]reponderance of the evidence is defined as that degree of evidence

2020Mo. Apr. 22, 2016) (emphasis added).8 Similarly, here, because no real estate conveyances were part of the joint venture agreement in question, the burden of proof standard is preponderance of the evidence.9 Jury Instruction No. 4, given here, instructed accordingly, directing in relevant part, that “[t]he 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.” See State Bd. of Nursing v. Berry, 32 S.W.3d 638, 642 (Mo. App. W.D. 2000) (explaining that “[p]reponderance of the evidence is defined as that degree of evidence