like rule in Missouri

1995Cone Memorial Hospital v. Mercury Construction Corporation, 460 U.S. 1 , 103 S.Ct. 927 , 74 L.Ed.2d 765 (1983) [S.Ct. 12, 13], the court stated: The Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.

1995Cone Memorial Hospital v. Mercury Construction Corporation, 460 U.S. 1 , 103 S.Ct. 927 , 74 L.Ed.2d 765 (1983) [S.Ct. 12, 13], the court stated: The Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.

1935It correctly declares the law, and is in the language employed in a like instruction approved by this court in State v. McMullin, 170 Mo. l. c. 625, 71 S. W. 221 .

1935The instruction is not set out in the opinion but the court says it "is in the language employed in a like instruction approved by this court in State v. McMullin, 170 Mo. l.c. 625, 71 S.W. 221 ." The instruction in the McMullin case required the jury to find, among other facts, before treating the declaration there in question as a dying declaration, that at the time of making the declaration the declarant "had given up all hopes of life and then believed that death was impending and near." The court said in the Peak case that the instruction was not "obnoxious to the criticism that the admis

2018The trial court found, in fact, that the delegation clause argument was Ford Motor Credit's "strongest responsive argument." Jones next argues that determining whether Ford Motor Credit waived arbitration by pursuing litigation is not encompassed by the delegation provision and was properly determined by the trial court. "[T]he presumption is that the arbitrator should decide allegation[s] of waiver, delay, or a like defense to arbitrability." Howsam v. Dean Witter Reynolds, Inc. , 537 U.S. 79 , 84, 123 S.Ct. 588 , 592, 154 L.Ed. 2d 491 (2002) (internal quotation omitted).

2018The trial court found, in fact, that the delegation clause argument was Ford Motor Credit's "strongest responsive argument." Jones next argues that determining whether Ford Motor Credit waived arbitration by pursuing litigation is not encompassed by the delegation provision and was properly determined by the trial court. "[T]he presumption is that the arbitrator should decide allegation[s] of waiver, delay, or a like defense to arbitrability." Howsam v. Dean Witter Reynolds, Inc. , 537 U.S. 79 , 84, 123 S.Ct. 588 , 592, 154 L.Ed. 2d 491 (2002) (internal quotation omitted).

2002Moreover, the Federal Arbitration Act “establishes that ‘as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.’” Lyster, 239 F.3d at 945 ; Moses H.

1990The like presumption is also drawn from the usual course of men’s private offices and business, where the primary evidence of the fact is wanting.’ 1 Greenl.Ev. § 40.” Mathias v. O’Neill, 94 Mo. 520, 526 , 6 S.W. 253 , 255 (1887).

1979Such instruction duplicates a like instruction quoted in full and condemned by this court in Cowan v. McEIroy, 549 S.W.2d 543 (Mo.App.1977).

1978There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” 89 S.Ct. at 2040 .

1977Hence the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.” The Supreme Court took the further opportunity to disavow any desire to base New York Times Co. upon a negligence standard, id. at 79, 85 S.Ct. 209 .

1968Lee v. Cavanaugh, Mo.App., 419 S.W.2d 929 ; Ex parte Meyer, Mo.App., 18 S.W.2d 560 ] ; and, although until recently the like privilege against self-incrimination guaranteed by the Fifth Amendment of the United States Constitution did not afford protection against state action [Adamson v. People of State of California, 332 U.S. 46 , 67 S.Ct. 1672 , 91 L.Ed. 1903 , 171 A.L.R. 1223 ; Kirtley, supra, 327 S.W. 2d at 168 (3)], it is now clear that such privilege may be invoked by one under examination in a state court.

1968Lee v. Cavanaugh, Mo.App., 419 S.W.2d 929 ; Ex parte Meyer, Mo.App., 18 S.W.2d 560 ] ; and, although until recently the like privilege against self-incrimination guaranteed by the Fifth Amendment of the United States Constitution did not afford protection against state action [Adamson v. People of State of California, 332 U.S. 46 , 67 S.Ct. 1672 , 91 L.Ed. 1903 , 171 A.L.R. 1223 ; Kirtley, supra, 327 S.W. 2d at 168 (3)], it is now clear that such privilege may be invoked by one under examination in a state court.

1968Malloy v. *236 Hogan, 378 U.S. 1 , 84 S.Ct. 1489 , 12 L.Ed. 2d 653 (1964); Cavanaugh, supra, 419 S.W.2d at 932 (1).

1968Malloy v. *236 Hogan, 378 U.S. 1 , 84 S.Ct. 1489 , 12 L.Ed. 2d 653 (1964); Cavanaugh, supra, 419 S.W.2d at 932 (1).

1962Consult also State v. Miller, 263 Mo. 326 , 172 S.W. 385, 388 [7]; State v. McKinney, 254 Mo. 688 , 163 S.W. 822 [2, 3]; State v. Hurley, 242 Mo. 452 , 146 S.W. 1154, 1156 [3, 4], The State contends this issue is not available to defendant because the court, at defendant’s request, gave instruction No. 6, which also had the claimed error in it.

1962Consult also State v. Miller, 263 Mo. 326 , 172 S.W. 385, 388 [7]; State v. McKinney, 254 Mo. 688 , 163 S.W. 822 [2, 3]; State v. Hurley, 242 Mo. 452 , 146 S.W. 1154, 1156 [3, 4], The State contends this issue is not available to defendant because the court, at defendant’s request, gave instruction No. 6, which also had the claimed error in it.

1960Co. v. Jopes, 142 U.S. 18 , 12 S.Ct. 109, 111 , 35 L.Ed. 919 , the United States Supreme Court said: “If the party who actually causes the injury is free from all civil and criminal liability therefor, his employer must also be entitled to a like immunity.” Other Missouri cases which hold that where the cause of action against the servant has been extinguished, no recovery can be had against the master, are the following: Stoutimore v. Atchison, T. & S. F. R.

1960Co. v. Jopes, 142 U.S. 18 , 12 S.Ct. 109, 111 , 35 L.Ed. 919 , the United States Supreme Court said: “If the party who actually causes the injury is free from all civil and criminal liability therefor, his employer must also be entitled to a like immunity.” Other Missouri cases which hold that where the cause of action against the servant has been extinguished, no recovery can be had against the master, are the following: Stoutimore v. Atchison, T. & S. F. R.

1960Co., 338 Mo. 463 , 92 S.W.2d 658 ; McGinnis v. Chicago, R.

1960Co., 338 Mo. 463 , 92 S.W.2d 658 ; McGinnis v. Chicago, R.

1945So considered, the authority of State v. Nasello, 325 Mo. 442 , 30 S. W. 2d 132 , is undoubtedly controlling, as that ease ruled the validity of a like instruction under objections which are duplicated here.

1945So considered, the authority of State v. Nasello, 325 Mo. 442 , 30 S. W. 2d 132 , is undoubtedly controlling, as that ease ruled the validity of a like instruction under objections which are duplicated here.

1944In this connection Carpenter v. Kurn, 345 Mo. 877 , 895, 136 S.W.2d 997 , 1007[12], points out in discussing a like error that if the court may assume the existence of an essential controverted fact because defendant offered [130] no evidence, it may with like propriety assume every essential fact not specifically controverted by evidence.

1944In this connection Carpenter v. Kurn, 345 Mo. 877 , 895, 136 S.W.2d 997 , 1007[12], points out in discussing a like error that if the court may assume the existence of an essential controverted fact because defendant offered [130] no evidence, it may with like propriety assume every essential fact not specifically controverted by evidence.

1936Nor need we consider the modification of the rule as to said presumption of undue influence, as announced in some of the earlier cases, that was made by this court en banc in the recent cases of Loehr v. Starke, 332 Mo. 131 , 56 S.W.2d 772 , and Pulitzer v. Chapman, 337 Mo. 298 , 85 S.W.2d 400 , because in *Page 765 this case an essential fact element, recognized by all the cases as necessary in order that the presumption may be indulged so as to shift the burden of proof, is lacking.

1936Nor need we consider the modification of the rule as to said presumption of undue influence, as announced in some of the earlier cases, that was made by this court en banc in the recent cases of Loehr v. Starke, 332 Mo. 131 , 56 S.W.2d 772 , and Pulitzer v. Chapman, 337 Mo. 298 , 85 S.W.2d 400 , because in *Page 765 this case an essential fact element, recognized by all the cases as necessary in order that the presumption may be indulged so as to shift the burden of proof, is lacking.

1936Nor need we consider the modification of the rule as to said presumption of undue influence, as announced in some of the earlier cases, that was made by this court en banc in the recent cases of Loehr v. Starke, 332 Mo. 131 , 56 S.W.2d 772 , and Pulitzer v. Chapman, 337 Mo. 298 , 85 S.W.2d 400 , because in *Page 765 this case an essential fact element, recognized by all the cases as necessary in order that the presumption may be indulged so as to shift the burden of proof, is lacking.

1936Nor need we consider the modification of the rule as to said presumption of undue influence, as announced in some of the earlier cases, that was made by this court en banc in the recent cases of Loehr v. Starke, 332 Mo. 131 , 56 S.W.2d 772 , and Pulitzer v. Chapman, 337 Mo. 298 , 85 S.W.2d 400 , because in *Page 765 this case an essential fact element, recognized by all the cases as necessary in order that the presumption may be indulged so as to shift the burden of proof, is lacking.

1932An additional instruction on self-defense should have been requested, if appellant believed that the given instruction did not go far enough. [State v. Rozell, supra.] A like instruction was given in State v. Harris, 209 Mo. 423 , 108 S.W. 28 .

1932An additional instruction on self-defense should have been requested, if appellant believed that the given instruction did not go far enough. [State v. Rozell, supra.] A like instruction was given in State v. Harris, 209 Mo. 423 , 108 S.W. 28 .

1931The demurrers to the evidence were properly rejected, since there was ample evidence, if believed by the jury, to support the case pleaded. [Haycraft v. Grigsby, 88 Mo. App. 345 , 360; State v. Koonse, 123 Mo. App. 655 , 101 S.W. 139 ; Dix v. Martin, 171 Mo. App. 266 , 157 S.W. 133 .] It is argued that plaintiff's evidence is opposed to physical facts and common observation and should be disregarded.

1931The demurrers to the evidence were properly rejected, since there was ample evidence, if believed by the jury, to support the case pleaded. [Haycraft v. Grigsby, 88 Mo. App. 345 , 360; State v. Koonse, 123 Mo. App. 655 , 101 S.W. 139 ; Dix v. Martin, 171 Mo. App. 266 , 157 S.W. 133 .] It is argued that plaintiff's evidence is opposed to physical facts and common observation and should be disregarded.

1931The demurrers to the evidence were properly rejected, since there was ample evidence, if believed by the jury, to support the case pleaded. [Haycraft v. Grigsby, 88 Mo. App. 345 , 360; State v. Koonse, 123 Mo. App. 655 , 101 S.W. 139 ; Dix v. Martin, 171 Mo. App. 266 , 157 S.W. 133 .] It is argued that plaintiff's evidence is opposed to physical facts and common observation and should be disregarded.

1931The demurrers to the evidence were properly rejected, since there was ample evidence, if believed by the jury, to support the case pleaded. [Haycraft v. Grigsby, 88 Mo. App. 345 , 360; State v. Koonse, 123 Mo. App. 655 , 101 S.W. 139 ; Dix v. Martin, 171 Mo. App. 266 , 157 S.W. 133 .] It is argued that plaintiff's evidence is opposed to physical facts and common observation and should be disregarded.

1931Louis v. Bux, 43 Ill.

1929McClintock v. Guinotte, 275 Mo. 298 , a like clause in Section 30, A /.I O /\+ t U W i* a m An 4 a 4n a4 i ■vi 4 h a Fourth Amendment having particular reference to the right to due process of law, was construed, and it was held that the inheritance statute did not deny this right.