application of the general rule in Missouri

1915The rule, however, was by clear implication approved in Vail v. Dinning, 44 Mo. 210 , construing an act of the Legislature which authorized a contestor for the office of circuit judge to institute an original proceeding in the Supreme Court to determine the issue.

1914The rule, however, was by clear implication approved in Vail v. Dinning, 44 Mo. 210 , construing an act of the Legislature which authorized a contestor for the office of circuit judge to institute an original proceeding in the Supreme Court to determine the issue.

2004“This is but an application of the general rule that failure to file a required answer admits the allegations of the preceding pleading.” Id.

1993The application of the general rule prohibiting the jury from reviewing unadmit-ted exhibits is well illustrated in Southwick, supra, involving a dispute over the repair of an automobile.

1993The application of the general rule prohibiting the jury from reviewing unadmitted exhibits is well illustrated in Southwick, supra , involving a dispute over the repair of an automobile.

1992Bledsoe, 341 S.W.2d at 632 .

1976The holding in State v. Jenkins, supra, is an application of the general rule that logical consistency in a verdict in a criminal trial of a multiple count charge is not necessary. 76 Am.Jur.2d Trial, 66 1155-1159, pp. 123-127 (1975); Annotation: “Inconsistency of Criminal Verdict as Between Different Counts of Indictment or Information,” 18 A.L.R.3d 259 (1968); Dunn v. U. S., 284 U.S. 390 , 52 S.Ct. 189 , 76 L.Ed. 356 (1932).

1976The holding in State v. Jenkins, supra, is an application of the general rule that logical consistency in a verdict in a criminal trial of a multiple count charge is not necessary. 76 Am.Jur.2d Trial, 66 1155-1159, pp. 123-127 (1975); Annotation: “Inconsistency of Criminal Verdict as Between Different Counts of Indictment or Information,” 18 A.L.R.3d 259 (1968); Dunn v. U. S., 284 U.S. 390 , 52 S.Ct. 189 , 76 L.Ed. 356 (1932).

1976The holding in State v. Jenkins, supra, is an application of the general rule that logical consistency in a verdict in a criminal trial of a multiple count charge is not necessary. 76 Am.Jur.2d Trial, 66 1155-1159, pp. 123-127 (1975); Annotation: “Inconsistency of Criminal Verdict as Between Different Counts of Indictment or Information,” 18 A.L.R.3d 259 (1968); Dunn v. U. S., 284 U.S. 390 , 52 S.Ct. 189 , 76 L.Ed. 356 (1932).

1976In United States v. Maybury, 274 F.2d 899 (2d Cir. 1960), the court held that in a court-tried case, the judge as fact finder should be held to a different standard of consistency.

1967Louis Union Trust Co. v. Kelley, 355 Mo. 924 , 199 S.W.2d 344, 350 ; see also other cases cited under G472, West’s Missouri Digest, Wills.

1967Louis Union Trust Co. v. Kelley, 355 Mo. 924 , 199 S.W.2d 344, 350 ; see also other cases cited under G472, West’s Missouri Digest, Wills.

1967This, however, is nothing more than an application of the general rule that the intention of the testator must be ascertained from the will as a whole, for in no such case would the weaker provisions be permitted to overthrow the stronger.” See also Middleton v. Dudding, Mo.Sup., 183 S.W. 443 , 445; Barnhardt v. McGraw, 319 Mo. 680 , 5 S.W.2d 77, 80 ; St.

1967This, however, is nothing more than an application of the general rule that the intention of the testator must be ascertained from the will as a whole, for in no such case would the weaker provisions be permitted to overthrow the stronger.” See also Middleton v. Dudding, Mo.Sup., 183 S.W. 443 , 445; Barnhardt v. McGraw, 319 Mo. 680 , 5 S.W.2d 77, 80 ; St.

1966Plaintiff apparently takes the position that this was a separate oral agreement apart from the agreement between the parties expressed in the deed in order to avoid the application of the general rule that “Prior and contemporaneous negotiations and oral understandings of the contracting parties are said to merge into their written instrument and, with certain exceptions, that instrument cannot be varied, and a new and different contract substituted therefor, by parol testimony.” Fisher v. Miceli, Mo., 291 S.W.2d 845, 848 .

1960The preponderant logic for the execption in Ennis v. Truhitte, Mo., 306 S.W.2d 549 , induced my concurrence although cogent reasons remain in such a case for the application of the general rule, a product of judicial decision.

1960The preponderant logic for the exception in Ennis v. Truhitte, Mo., 306 S.W.2d 549 , induced my concurrence although cogent reasons remain in such a case for the application of the general rule, a product of judicial decision.

1960As indicated by the dissenting opinion in Ennis, the reasons for the exception in the Hamilton case, 285 S.W.2d 642 , are less convincing than in the Ennis factual situation.

1960As indicated by the dissenting opinion in Ennis, the reasons for the exception in the Hamilton case, 285 S.W.2d 642 , are less convincing than in the Ennis factual situation.

1955Even if said prerequisites had been met, the aforesaid “general rule is not applicable in unusual situations where defendant in his pleadings or by his.counsel in open court admits plaintiff’s claim, or by his evidence also establishes plaintiff’s claim * * *, or where there is no real dispute of the basic facts supported by uncontradicted testimony essential to a claim or an affirmative defense [citing many authorities].” Rogers v. Thompson, Mo., 265 S.W.2d 282 , loc. cit. 287; and to the same effect, see Davidson v. St.

1953We held in Morrison v. Roehl, supra, that even in those instances proper for the application of the general rule, a deed to a life tenant conveying the interest of a remainderman acquired on foreclosure is not void. ( 114 S.W. 984 .) If the payment or the purchase by the life tenant was in discharge of his own individual obligation, it is regarded as the fulfilment of a duty of the life tenant, and the title obtained by the life tenant inures to the benefit of the remainderman; and if the life tenant’s payment or purchase was in discharge of an obligation of both the life tenant and the remain

1945The principle has been announced that where the application of the general rule will work injustice it will not be followed even in a ease solely between the parties where a deed was made ‘ ‘ to avoid the possible outcome of some litigation.” Mentzer v. Mentzer, 325 Mo. 941 , 30 S. W. (2d) 146 .

1945The principle has been announced that where the application of the general rule will work injustice it will not be followed even in a ease solely between the parties where a deed was made ‘ ‘ to avoid the possible outcome of some litigation.” Mentzer v. Mentzer, 325 Mo. 941 , 30 S. W. (2d) 146 .

1939Therefore the decision in this case *554 must depend solely on the application of the general rule of law as stated in the case of McCune v. Goodwillie, 204 Mo. 306 at 340-1 , 102 S. W. 997 , that the purchase at a tax sale by one whose duty it was to pay the taxes operates merely as a payment of such taxes, leaving the payment to stand as if the payment had been made before the sale.

1939Therefore the decision in this case *554 must depend solely on the application of the general rule of law as stated in the case of McCune v. Goodwillie, 204 Mo. 306 at 340-1 , 102 S. W. 997 , that the purchase at a tax sale by one whose duty it was to pay the taxes operates merely as a payment of such taxes, leaving the payment to stand as if the payment had been made before the sale.

1938The one is proper within reasonable limits and subject to the sound discretion of the trial court (State v. Patton, 255 Mo. 245 , 164 S.W. 223 ; State v. Gregory, supra; 70 C.J. 801, 1025), but the other is permitted only when those circumstances of surprise, entrapment, and prejudice exist which serve to take the case from within the application of the general rule which prohibits the impeachment of one's own witness.

1938The one is proper within reasonable limits and subject to the sound discretion of the trial court (State v. Patton, 255 Mo. 245 , 164 S.W. 223 ; State v. Gregory, supra; 70 C.J. 801, 1025), but the other is permitted only when those circumstances of surprise, entrapment, and prejudice exist which serve to take the case from within the application of the general rule which prohibits the impeachment of one's own witness.

1915Cave v. Tincher, 258 Mo. l. c. 17, Walker, J., said: “These cases, while aptly illustrative of the application of the general rule i-n regard to the limitations placed by the Constitution upon legislation, do not, except in the Redmond case (Redmond v. Railroad, 225 Mo. 721 ), have particular references to the jurisdiction of courts as defined by the organic law.

1914We find here a proper case for the application of the general rule requiring that a bill of lading or receipt shall be taken as the sole evidence of the final agreement of the parties respecting the shipment. [O’Bryan v. Kinney, 74 Mo. 125 ; Railway Co. v. Cleary, 77 Mo. 634 ; Patterson v. Railway, 56 Mo. App. 657 .] The wording of the stipulation indicates that the general form, i. .e., the standard form of bill of lading was intended to be used and in this instance was used for the transportation of freight of extraordinary value.

1914We find here a proper case for the application of the general rule requiring that a bill of lading or receipt shall be taken as the sole evidence of the final agreement of the parties respecting the shipment. [O’Bryan v. Kinney, 74 Mo. 125 ; Railway Co. v. Cleary, 77 Mo. 634 ; Patterson v. Railway, 56 Mo. App. 657 .] The wording of the stipulation indicates that the general form, i. .e., the standard form of bill of lading was intended to be used and in this instance was used for the transportation of freight of extraordinary value.

1914We find here a proper case for the application of the general rule requiring that a bill of lading or receipt shall be taken as the sole evidence of the final agreement of the parties respecting the shipment. [O’Bryan v. Kinney, 74 Mo. 125 ; Railway Co. v. Cleary, 77 Mo. 634 ; Patterson v. Railway, 56 Mo. App. 657 .] The wording of the stipulation indicates that the general form, i. .e., the standard form of bill of lading was intended to be used and in this instance was used for the transportation of freight of extraordinary value.

1909This rule was declared in an other aspect, but without weakening the decision as an authority applicable to the present case, in Boland v. Railway Co., 36 Mo. 484 , wherein our Supreme Court, speaking through Judge Wagner, said it would be unjust to require of a child with little capacity and discretion the same precaution and prudence which reasonably may be expected of older persons; and therefore one using dangerous instruments, machinery or vehicles, when he knows infants, idiots or others of imperfect discretion, are in close proximity, is compelled to ase a degree of caution, skill and d

1909As a standard treatise says: “In such an inr stance the rule is clear because the child is not a trespasser, but the owner of the property, by inviting him to come on the premises, has assumed the duty of exei’cis-:ing reasonable care to the end that he sustain no injury in consequence of dangerous pitfalls, attractive nuisances or the like.” [1 Thompson, Neg., sec. 1050.] This doctrine is but one phase of the wider doctrine that an owner must keep his premises reasonably safe for the use of people whom he invites to come on them — an application of the general doctrine with special reference

1907In a case where it was agreed to divide the aggregate amounts by twelve and it was understood that the jury were not bound by the result, and that after the amount was so ascertained the jurors unanimously agreed to adopt it as the sum to be returned, the verdict was upheld. [Hunt v. Elliott, 77 Cal. 588 .] In Knight v. Fisher, 15 Colo. 176 , there was “an agreement in advance by the jurors to arrive at a verdict by each juror marking the amount on paper he is willing to allow, and by adding the said several amounts together and dividing the same by twelve and that the quotient or result shall