view rule in Missouri

1987The court bases its interpretation on the statute’s legislative history which said that the “final judgment of the claimant is reduced by the amount paid for a release....” By using the term “final judgment,” the court concluded that the Washington legislature intended the settlement amount be deducted after reducing for the plaintiff’s comparative negligence. 673 P.2d at 182 .

1987The court bases its interpretation on the statute's legislative history which said that the "final judgment of the claimant is reduced by the amount paid for a release...." By using the term "final judgment," the court concluded that the Washington legislature intended the settlement amount be deducted after reducing for the plaintiff's comparative negligence. 673 P.2d at 182 .

1994In its order of November 24, 1992, the trial court stated: The Court finds this case was not legally pending on December 17, 1991 and, therefore, Hartman v. Hartman, 821 S.W.2d 852 (Mo.1991), does not apply.

1989The court in State v. Carlton, 733 S.W.2d 23 (Mo.App.1987), faced with a similar issue, adopted the view that no test of proportionality became involved unless the sentence imposed was grossly disproportionate to the gravity of the offense.

1984State v. Baker, supra, 598 S.W.2d at 545-46 .

1984State v. Baker, supra, 598 S.W.2d at 545-46 .

1975Appellant recognizes that this has been so but contends that the rule should be changed, citing in support thereof the concurring opinion of Judge Donnelly in State v. Hutchinson, supra , wherein he expressed the view that such an instruction is permissible under Missouri law and that in future cases such an instruction should be given if defendant does not object thereto.

1974There are cases in other states which support the view that a rule such as 44.01 does not extend the filing date where the last day is on Sunday or a holiday as, for example, Fulghum v. Baxley, 219 S.W.2d 1014 (Tex.Civ.App.1949).

1973The view that the rule of privity is to be rejected as to those third persons for whose benefit and guidance the accountant intends to supply the information, or knows that the recipient of the audit intends to supply such information to a limited class of persons, has been upheld in recent decisions and has been adopted by the Restatement of the Law, Second, Torts, § 552, Tentative Draft No. 12. 4 Ryan v. Kanne, Iowa, 170 N.W. *383 2d 395; Shatterproof Glass Corp. v. James, Tex.Civ.App., 466 S.W.2d 873 ; Rusch Factors, Inc. v. Levin, D.C.R.I., 284 F.Supp. 85 ; R.

1973The view that the rule of privity is to be rejected as to those third persons for whose benefit and guidance the accountant intends to supply the information, or knows that the recipient of the audit intends to supply such information to a limited class of persons, has been upheld in recent decisions and has been adopted by the Restatement of the Law, Second, Torts, § 552, Tentative Draft No. 12. 4 Ryan v. Kanne, Iowa, 170 N.W. *383 2d 395; Shatterproof Glass Corp. v. James, Tex.Civ.App., 466 S.W.2d 873 ; Rusch Factors, Inc. v. Levin, D.C.R.I., 284 F.Supp. 85 ; R.

1971In that connection this court recently said that “Missouri Approved Instructions were adopted so that questions of fact may be accurately and concisely submitted to a jury in lieu of the vast amount of surplusage that formerly was found in many instructions.” Stemme v. Siedhoff, Mo.Sup., 427 S.W.2d 461, 466 .

1969Whereas the power of the court is merely contingent, not primary, and only to be exercised where a failure of duty, or a disagreement on the part of the jury requires its exercise.” In State v. Levan, 306 Mo. 507 , 267 S.W. 935 , this court, in dictum, expressed the view that such an instruction given in advance of disagreement by the jury on punishment should be permissible.

1969Whereas the power of the court is merely contingent, not primary, and only to be exercised where a failure of duty, or a disagreement on the part of the jury requires its exercise.” In State v. Levan, 306 Mo. 507 , 267 S.W. 935 , this court, in dictum, expressed the view that such an instruction given in advance of disagreement by the jury on punishment should be permissible.

1968Section 4219, Rev.St.1889, is the one relied on to sustain this view; but the concluding words of that section provide that such failure to testify shall not ‘be referred to by any attorney in the case, nor be considered by the court or jury before whom the trial takes place.’ If the court had given such an instruction, it would have disobeyed the spirit, if not the letter, of the law.” The legislative and judicial departments of Missouri government have, for many years, concurred in the view that the privilege against self-incrimination is best protected by refraining “throughout the trial fr

1968Section 4219, Rev.St.1889, is the one relied on to sustain this view; but the concluding words of that section provide that such failure to testify shall not ‘be referred to by any attorney in the case, nor be considered by the court or jury before whom the trial takes place.’ If the court had given such an instruction, it would have disobeyed the spirit, if not the letter, of the law.” The legislative and judicial departments of Missouri government have, for many years, concurred in the view that the privilege against self-incrimination is best protected by refraining “throughout the trial fr

1965As is pointed out in an exhaustive discussion of the rule in Myers v. Buchanan, Mo., 333 S.W.2d 18 , the doctrine is predicated on the assumption that the party complaining of his opponent’s error invited or induced his opponent to commit the error.

1962The court there reaffirmed the view that a requirement of “satisfaction” or “reasonable satisfaction” denotes “a degree of proof substantially greater than a preponderance of the evidence * * ⅜.” (324 S.W.2d loc. cit. 749.) The phrase “reasonably satisfied” was held erroneous there, even though used in .connection with the “greater weight or preponderance of the evidence,” in that it increased “the legal burden resting on defendant to prove insanity by the preponderance of the evidence.” See also State v. Eaves, 362 Mo. 670 , 243 S.W.2d 129 ; State v. Johnson, Mo., 267 S.W.2d 642 , 44 A.L.R.2d

1962The court there reaffirmed the view that a requirement of “satisfaction” or “reasonable satisfaction” denotes “a degree of proof substantially greater than a preponderance of the evidence * * ⅜.” (324 S.W.2d loc. cit. 749.) The phrase “reasonably satisfied” was held erroneous there, even though used in .connection with the “greater weight or preponderance of the evidence,” in that it increased “the legal burden resting on defendant to prove insanity by the preponderance of the evidence.” See also State v. Eaves, 362 Mo. 670 , 243 S.W.2d 129 ; State v. Johnson, Mo., 267 S.W.2d 642 , 44 A.L.R.2d

1962The court there reaffirmed the view that a requirement of “satisfaction” or “reasonable satisfaction” denotes “a degree of proof substantially greater than a preponderance of the evidence * * ⅜.” (324 S.W.2d loc. cit. 749.) The phrase “reasonably satisfied” was held erroneous there, even though used in .connection with the “greater weight or preponderance of the evidence,” in that it increased “the legal burden resting on defendant to prove insanity by the preponderance of the evidence.” See also State v. Eaves, 362 Mo. 670 , 243 S.W.2d 129 ; State v. Johnson, Mo., 267 S.W.2d 642 , 44 A.L.R.2d

1962The court there reaffirmed the view that a requirement of “satisfaction” or “reasonable satisfaction” denotes “a degree of proof substantially greater than a preponderance of the evidence * * ⅜.” (324 S.W.2d loc. cit. 749.) The phrase “reasonably satisfied” was held erroneous there, even though used in .connection with the “greater weight or preponderance of the evidence,” in that it increased “the legal burden resting on defendant to prove insanity by the preponderance of the evidence.” See also State v. Eaves, 362 Mo. 670 , 243 S.W.2d 129 ; State v. Johnson, Mo., 267 S.W.2d 642 , 44 A.L.R.2d

1938Judge Faris in his concurring opinion in State v. Kester, supra, 201 S. W. 1 . c. 64, expressed the view that the rule under the statute ought to be the same as it was at common law in homicide cases — that a constructive intent follows the bullet.

1932Respondent contends that the evidence of plaintiff’s offensive acts and of the use by him of opprobrious languge, in the view and hearing of defendant’s wife and daughter, was admissible as tending to show plaintiff’s hostility to defendant, and consequently the reasonableness of the latter’s apprehension of danger when he saw plaintiff reached for the wrench on the cultivator. [State v. Burns, 312 Mo. 673 , 280 S. W. 1026 .] Such acts and language, however, were pleaded in justification, — as a complete defense.

1932Respondent contends that the evidence of plaintiff’s offensive acts and of the use by him of opprobrious languge, in the view and hearing of defendant’s wife and daughter, was admissible as tending to show plaintiff’s hostility to defendant, and consequently the reasonableness of the latter’s apprehension of danger when he saw plaintiff reached for the wrench on the cultivator. [State v. Burns, 312 Mo. 673 , 280 S. W. 1026 .] Such acts and language, however, were pleaded in justification, — as a complete defense.

1929Others, including the Supreme Court of the United States, give effect to the gift over as a conditional limitation *Page 1101 upon the legacy, taking the view that by violation of the condition under which the legacy was given, the legacy, ipso facto, vests in the other designated person, and considering also that the condition annexed, is "a material ingredient in the legacy." Brandenburger v. Puller, 266 Mo. 534 , was a suit upon a contract.

1928In the case of Hutchinson v. Safety Gate Company, 247 Mo. 71 , l. c. 103, 152 S. W. 52 , the Supreme Court approved an instruction which informed the jury that “if you find no evidence to the contrary, you may assume deceased, at the time he was injured, was in the exercise of ordinary care. ’ ’ If it is proper to give to the jury, in an instruction, the benefit of the presumption of due care, we can perceive no *820 sound objection to instructing' the jury that the deceased had a right to assume, under the circumstances set forth in the instruction complained of, that the statutory signals wo

1928In the case of Hutchinson v. Safety Gate Company, 247 Mo. 71 , l. c. 103, 152 S. W. 52 , the Supreme Court approved an instruction which informed the jury that “if you find no evidence to the contrary, you may assume deceased, at the time he was injured, was in the exercise of ordinary care. ’ ’ If it is proper to give to the jury, in an instruction, the benefit of the presumption of due care, we can perceive no *820 sound objection to instructing' the jury that the deceased had a right to assume, under the circumstances set forth in the instruction complained of, that the statutory signals wo

1915Co., 207 Mass. 184 .] But it will be observed from the foregoing citations that the courts of this State have adopted the view that where a presumption cannot be indulged, the law of the forum will be applied.

1915And that rule has support in other jurisdictions. [Buchanan v. Hubbard, 119 Ind. 187 ; Cincinnati R.

1914In harmony with this view is the rule that when one who has stolen or fraudulently converted money of another is sued therefor in assumpsit, he will not be allowed to set up his theft or wrongful conversion as a defense. [Bliss on Code Pleading (3 Ed.), sec. 13; Gordon v. Bruner, 49 Mo. 570 ; Crane v. Murray, 106 Mo. App. 697 ; Mathes v. Switzer Lumber Co., 173 Mo. App. 239 .] Aiiowance of Attorney’s Fees.

1914In harmony with this view is the rule that when one who has stolen or fraudulently converted money of another is sued therefor in assumpsit, he will not be allowed to set up his theft or wrongful conversion as a defense. [Bliss on Code Pleading (3 Ed.), sec. 13; Gordon v. Bruner, 49 Mo. 570 ; Crane v. Murray, 106 Mo. App. 697 ; Mathes v. Switzer Lumber Co., 173 Mo. App. 239 .] Aiiowance of Attorney’s Fees.

1914In harmony with this view is the rule that when one who has stolen or fraudulently converted money of another is sued therefor in assumpsit, he will not be allowed to set up his theft or wrongful conversion as a defense. [Bliss on Code Pleading (3 Ed.), sec. 13; Gordon v. Bruner, 49 Mo. 570 ; Crane v. Murray, 106 Mo. App. 697 ; Mathes v. Switzer Lumber Co., 173 Mo. App. 239 .] Aiiowance of Attorney’s Fees.

1913(U. S.) 163.] As to whether former adjudication must be pleaded to be a good plea, or whether it may be given in evidence under the general issue, the courts are divided._ Our courts in this State by the great weight -; Return.’ of authority incline strongly to the latter view that the defense is a matter of evidence.. [Garton v. Botts, 73 Mo. 274 ; Connecticut Ins.

1913Co. v. Smith, 117 Mo. 1 . c. 297; Offutt v. John, 8 Mo. 120 .] But we need not'quibble as to this, since the cases are'unanimous that when a party has no-opportunity to plead his defense of former adjudication he may give it in evidence, under the general issue, and it will be as conclusive as if pleaded. [9 Ency..

1913Co. v. Smith, 117 Mo. 1 . c. 297; Offutt v. John, 8 Mo. 120 .] But we need not'quibble as to this, since the cases are'unanimous that when a party has no-opportunity to plead his defense of former adjudication he may give it in evidence, under the general issue, and it will be as conclusive as if pleaded. [9 Ency..

1911Light Co., 110 Mo. App. 184 , 85 S. W. 99 .] The instruction under consideration proceeds on this theory and incorporates this view as the standard by which defendant’s liability must be determined and we regard it sufficient on that score.

1911Light Co., 110 Mo. App. 184 , 85 S. W. 99 .] The instruction under consideration proceeds on this theory and incorporates this view as the standard by which defendant’s liability must be determined and we regard it sufficient on that score.