(dissenting).
Brandriets alleged in their amended complaint that but for the mishandling of their VA loan application by Norwest, the loan would have been approved. Therefore, the genesis of their claim is that they were qualified for the VA loan. If not qualified, they could not have suffered any damages no matter how ineptly the application was processed by Norwest.
Brandriets’ pleading advised Norwest that they were qualified to receive the VA loan. Since they alleged this fact, they had to present evidence to prove it. Gross v. Gross, 355 N.W.2d 4, 8 (S.D.1984).
Not only is it essential that every fact necessary to constitute a cause of action or defense be pleaded ... but every such fact, if put in issue, must be proved. Pleadings do not prove themselves, that is, their allegations do not constitute evidence of the facts alleged in favor of the pleader, and averments of a pleading unsupported by proof are unavailing. Thus, as a general rule, every material allegation of a complaint, declaration, or petition must be proved unless admitted or deemed admitted by the adverse party[.]
71 C.J.S. Pleading § 520 (1951).
It is obvious from the record of this case Norwest did not admit that Brandriets were qualified for the VA loan. In fact, the closing argument of counsel for Nor-west was to the effect that Brandriets had not proven by a preponderance of the evidence that they qualified for the VA loan. In the rebuttal argument of counsel for Brandriets, the following is a portion of same:
Ladies and gentlemen, there is one thing I submit. Read all the instructions, and if you find one instruction that says that we have to absolutely— ... we have to absolutely prove that we would have gotten the loan. If you find an instruction from the judge that says we have to prove that they would have gotten the loan, you rule for the bank.
This is an accurate statement since a review of the court’s instructions reveals that there is no mention of Brandriets having to prove that they absolutely would, possibly could or even might, qualify for the VA loan. This is incredulous when considering the pleadings. Also, after the verdict was rendered, Norwest filed a motion for judgment n.o.v. At the conclusion of the hearing on this motion, the judge stated that whether the VA would or would not have approved the loan was a jury question and the jury decided the loan would have been approved. How can this be if the jury was never instructed that one of the elements to be proven by Brandriets in their cause of action was their qualification for the VA loan.
When there is competent evidence on any issue in a case, the trial court has to instruct the jury accordingly and failure to so instruct constitutes prejudicial error. Kreager v. Blomstrom Oil Co., 379 N.W.2d 307, 309 (S.D.1985). Even though the court and counsel for Brandriets agreed a jury question existed on whether or not Brandriets qualified for the VA loan, the jury was never instructed that before they were to go to the claims of fraudulent misrepresentation, negligent misrepresentation or negligent procedure, they had to determine the threshold issue of qualification.* The failure to so instruct has prejudiced Norwest in this case. Therefore, I would reverse and remand for a new trial so that a complete and accurate set of jury instructions would be given.
A review of Seedorf s expert testimony certainly does not provide a clearcut answer as to Bran-driets’ qualifications for the loan. Depending on what figures the expert relies on, his answer on qualifications vascilates. Therefore, the trial court would need to give the jury instructions on how to resolve the issue of qualification for the VA loan based on appropriate standards employed in processing the loan.