reference instruction in Missouri

1985Tobin principally relies upon Owen v. Owen, 642 S.W.2d 410 (Mo.App.1982).

1984See also: State v. Daniels, 347 S.W.2d 874, 879 (Mo. 1961), 87 A.L.R.2d 1208 , cert, denied 369 U.S. 862 , 82 S.Ct. 951 , 8 L.Ed. 19 : State v. Butler, 353 S.W.2d 698 (Mo.1962). 7 We believe these cases control and the trial court did not commit error in overruling appellant’s objection to the testimony of Officer Siscal that appellant was known to have used the name “James O’Connor” on a prior occasion. 8 The evidence that appellant had previously used the name “James O’Connor” did not in any way suggest he did so in connection with any criminal activity.

1984See also: State v. Daniels, 347 S.W.2d 874, 879 (Mo. 1961), 87 A.L.R.2d 1208 , cert, denied 369 U.S. 862 , 82 S.Ct. 951 , 8 L.Ed. 19 : State v. Butler, 353 S.W.2d 698 (Mo.1962). 7 We believe these cases control and the trial court did not commit error in overruling appellant’s objection to the testimony of Officer Siscal that appellant was known to have used the name “James O’Connor” on a prior occasion. 8 The evidence that appellant had previously used the name “James O’Connor” did not in any way suggest he did so in connection with any criminal activity.

1984See also: State v. Daniels, 347 S.W.2d 874, 879 (Mo. 1961), 87 A.L.R.2d 1208 , cert, denied 369 U.S. 862 , 82 S.Ct. 951 , 8 L.Ed. 19 : State v. Butler, 353 S.W.2d 698 (Mo.1962). 7 We believe these cases control and the trial court did not commit error in overruling appellant’s objection to the testimony of Officer Siscal that appellant was known to have used the name “James O’Connor” on a prior occasion. 8 The evidence that appellant had previously used the name “James O’Connor” did not in any way suggest he did so in connection with any criminal activity.

1977Thereafter, the court considered the extrinsic circumstances of the donee and indicated that these circumstances removed any question of doubt with respect to the validity of the exercise relying primarily upon proof that the donee was aware of his power of appointment and knowingly exercised it. 4 A North Carolina case, First Union National Bank v. Moss, 32 N.C.App. 499 , 233 S.E.2d 88 (1977), has, on even broader language, found a specific reference clause not to require descriptive language in the exercise of the power.

1977Thereafter, the court considered the extrinsic circumstances of the donee and indicated that these circumstances removed any question of doubt with respect to the validity of the exercise relying primarily upon proof that the donee was aware of his power of appointment and knowingly exercised it. 4 A North Carolina case, First Union National Bank v. Moss, 32 N.C.App. 499 , 233 S.E.2d 88 (1977), has, on even broader language, found a specific reference clause not to require descriptive language in the exercise of the power.

1976Recognition is then given to May Department Stores Co. v. Union Electric Co., 341 Mo. 299 , 107 S.W.2d 41 (1937), wherein the court said: “The [Commission] has exclusive jurisdiction to establish public utility rates and may do so either by approval of rate schedules filed with it or by order after investigation or hearing.” Consumers construe that statement to mean approval of alternative methods, although it is not clear if the “hearing” referred to was in reference to one possibly held in connection with the new rate filing or was a reference to a hearing under the complaint method.

1976Recognition is then given to May Department Stores Co. v. Union Electric Co., 341 Mo. 299 , 107 S.W.2d 41 (1937), wherein the court said: “The [Commission] has exclusive jurisdiction to establish public utility rates and may do so either by approval of rate schedules filed with it or by order after investigation or hearing.” Consumers construe that statement to mean approval of alternative methods, although it is not clear if the “hearing” referred to was in reference to one possibly held in connection with the new rate filing or was a reference to a hearing under the complaint method.

1970Fields v. Kansas City, Mo.Sup., 383 S.W.2d 543 , involved consideration of a damage instruction in a case where there had been *619 an obvious error in the reference to the instruction number in a motion for new trial.

1970Fields v. Kansas City, Mo.Sup., 383 S.W.2d 543 , involved consideration of a damage instruction in a case where there had been an obvious error in the reference to the instruction number in a motion for new trial.

1962We recognize that in Rosenfeld v. Peters, Mo.Sup., 327 S.W.2d 264 , and Burow v. Red Line Service, Inc., 343 Mo. 605 , 122 S.W.2d 919 , partially similar instructions which omitted a reference to the standard of care were held to be more favorable to plaintiff than he was entitled to because those instructions were said to authorize a verdict for defendant only if it were impossible, upon any hypothesis, for the driver to have taken action to avoid the collision.

1962We recognize that in Rosenfeld v. Peters, Mo.Sup., 327 S.W.2d 264 , and Burow v. Red Line Service, Inc., 343 Mo. 605 , 122 S.W.2d 919 , partially similar instructions which omitted a reference to the standard of care were held to be more favorable to plaintiff than he was entitled to because those instructions were said to authorize a verdict for defendant only if it were impossible, upon any hypothesis, for the driver to have taken action to avoid the collision.

1962We recognize that in Rosenfeld v. Peters, Mo.Sup., 327 S.W.2d 264 , and Burow v. Red Line Service, Inc., 343 Mo. 605 , 122 S.W.2d 919 , partially similar instructions which omitted a reference to the standard of care were held to be more favorable to plaintiff than he was entitled to because those instructions were said to authorize a verdict for defendant only if it were impossible, upon any hypothesis, for the driver to have taken action to avoid the collision.

1954Arditi v. Brooks Erection Co., Mo.Sup., 266 S. W. 2d 556, 560 ; Consolidated School Dist. v. West Missouri Power Co., 329 Mo. 690 , 46 S.W. 2d 174 ; Chamberlain v. Missouri-Arkansas Coach Lines, Inc., 351 Mo. 203 , 173 S.W. 2d 57 .

1954Arditi v. Brooks Erection Co., Mo.Sup., 266 S. W. 2d 556, 560 ; Consolidated School Dist. v. West Missouri Power Co., 329 Mo. 690 , 46 S.W. 2d 174 ; Chamberlain v. Missouri-Arkansas Coach Lines, Inc., 351 Mo. 203 , 173 S.W. 2d 57 .

1954Arditi v. Brooks Erection Co., Mo.Sup., 266 S. W. 2d 556, 560 ; Consolidated School Dist. v. West Missouri Power Co., 329 Mo. 690 , 46 S.W. 2d 174 ; Chamberlain v. Missouri-Arkansas Coach Lines, Inc., 351 Mo. 203 , 173 S.W. 2d 57 .

1954Arditi v. Brooks Erection Co., Mo.Sup., 266 S. W. 2d 556, 560 ; Consolidated School Dist. v. West Missouri Power Co., 329 Mo. 690 , 46 S.W. 2d 174 ; Chamberlain v. Missouri-Arkansas Coach Lines, Inc., 351 Mo. 203 , 173 S.W. 2d 57 .

1954Arditi v. Brooks Erection Co., Mo.Sup., 266 S. W. 2d 556, 560 ; Consolidated School Dist. v. West Missouri Power Co., 329 Mo. 690 , 46 S.W. 2d 174 ; Chamberlain v. Missouri-Arkansas Coach Lines, Inc., 351 Mo. 203 , 173 S.W. 2d 57 .

1933However, it has frequently been held that even in those cases, wherein the account itself constitutes the statement of the cause of action, that it is not error in an instruction to refer to the claim or account where the reference is not 'to determine any issue in the case but merely for purpose of identifying a matter about which an issue had been raised. [Elstroth v. Karrenbrock, 285 S. W. 525 , l. c. 529.] The question as to whether reference to the pleading is so stated as to confuse or mislead the jury to the defendant’s prejudice determines as to whether the reference in the instruction

1930The defendant did not request any further or different definition to these words, and its failure to offer any such instruction waived error, if any. [Dobbs v. Railway Co., 202 S. W. 276 ; Rippetoe v. Railway, 138 Mo. App. 402, 407 , 122 S. W. 314 .] Complaint is made of the court’s failure to give instruction lettered E which undertook to tell the jury that if the jury found the plaintiff was not using ordinary care and exercising ordinary prudence at the time of his injury, and that to fail to use such care and prudence was the sole cause of his injuries then the verdict should be for the de

1930The defendant did not request any further or different definition to these words, and its failure to offer any such instruction waived error, if any. [Dobbs v. Railway Co., 202 S. W. 276 ; Rippetoe v. Railway, 138 Mo. App. 402, 407 , 122 S. W. 314 .] Complaint is made of the court’s failure to give instruction lettered E which undertook to tell the jury that if the jury found the plaintiff was not using ordinary care and exercising ordinary prudence at the time of his injury, and that to fail to use such care and prudence was the sole cause of his injuries then the verdict should be for the de

1913Among the cases cited by defendant in support of the objection is Hawes v. Stock Yards Co., 103 Mo. 60 .

1913On the contrary, as we understand it, it is more in the nature of “a policy which insures directly against liability, and one that insures against loss or damage by reason of liability.” [Finley v. Casualty Co., supra. See also Salmon Falls Bank v. Leyser, 116 Mo. 51 , 22 S. W. 504 .] If it was the intention to pay only when and to the amount the assured had paid, a reference to clause 14 of the Travelers policy shows how easily that intention could have been expresed.

1913On the contrary, as we understand it, it is more in the nature of “a policy which insures directly against liability, and one that insures against loss or damage by reason of liability.” [Finley v. Casualty Co., supra. See also Salmon Falls Bank v. Leyser, 116 Mo. 51 , 22 S. W. 504 .] If it was the intention to pay only when and to the amount the assured had paid, a reference to clause 14 of the Travelers policy shows how easily that intention could have been expresed.

1906We have found decisions holding that when parties go to trial without an answer being filed raising issues of fact, and without objecting to the trial on that score, the irregularity is waived. [Kirkpatrick v. Alexander, 60 Ind. 95 ; Anderson v. Sloan, 1 Colo. 484 .] The judgment is affirmed.

1906We have found decisions holding that when parties go to trial without an answer being filed raising issues of fact, and without objecting to the trial on that score, the irregularity is waived. [Kirkpatrick v. Alexander, 60 Ind. 95 ; Anderson v. Sloan, 1 Colo. 484 .] The judgment is affirmed.

1892“The jury should have been left to make such finding as they considered just on that issue, without casting into the balance such a reference to the presumption obtaining in the absence of the evidence.” And to the same effect are the decisions of this court in Rapp v. Railroad, 106 Mo. 423 ; Myers v. Kansas City, 108 Mo. 480 ; Barr v. Kansas City, 105 Mo. 558 ; Railroad v. Stebbing, 62 Md. 504 .

1892“The jury should have been left to make such finding as they considered just on that issue, without casting into the balance such a reference to the presumption obtaining in the absence of the evidence.” And to the same effect are the decisions of this court in Rapp v. Railroad, 106 Mo. 423 ; Myers v. Kansas City, 108 Mo. 480 ; Barr v. Kansas City, 105 Mo. 558 ; Railroad v. Stebbing, 62 Md. 504 .

1892“The jury should have been left to make such finding as they considered just on that issue, without casting into the balance such a reference to the presumption obtaining in the absence of the evidence.” And to the same effect are the decisions of this court in Rapp v. Railroad, 106 Mo. 423 ; Myers v. Kansas City, 108 Mo. 480 ; Barr v. Kansas City, 105 Mo. 558 ; Railroad v. Stebbing, 62 Md. 504 .

1892We are cited by respondent to the case of Correll v. Railroad, 38 Iowa, 120 , in which this instruction was approved.