condemned instruction in Missouri

1968In State v. Robinson, 353 Mo. 934 , 185 S.W.2d 636, 642 , both the Hopkins and Creed cases were distinguished upon the ground that both contained the condemned instruction that “no one is justified in using more force than is necessary to get rid of an assailant.” With reference to the Creed case, it was further remarked that there was a real question of whether it was necessary for defendants to go to the excessive length of shooting the police officer who assaulted them with a club.

1968In State v. Robinson, 353 Mo. 934 , 185 S.W.2d 636, 642 , both the Hopkins and Creed cases were distinguished upon the ground that both contained the condemned instruction that “no one is justified in using more force than is necessary to get rid of an assailant.” With reference to the Creed case, it was further remarked that there was a real question of whether it was necessary for defendants to go to the excessive length of shooting the police officer who assaulted them with a club.

1965In the Rouchene case supra, this Court condemned a clause in an instruction on the burden of proof which read that if “ ‘the truth as to the charge of negligence remains in doubt in your mind.’ ” See 89 S.W.2d 1 . c. 63(11).

1965In the Ledkins case, 316 S.W.2d 1 . c. 569 (8), we stated that this Court had often admonished trial lawyers that instructions on burden of proof should be short and simple, advising a jury that a plaintiff has the burden of proving his case by a preponderance, that is, the greater weight of the credible evidence.

1963The instruction there was truly-concerned with the burden of proof in a res ipsa loquitur case, and in its second paragraph said, “You should not find that the defendant was negligent from the mere fact of the occurrence shown by plaintiff’s evidence.” See also Sutton v. Fox Missouri Theatre Company, (Mo.), 356 S.W.2d 41 , and its "the mere fact that plaintiff was injured by a fall." It was said in condemnation of the instruction in the Wise case that the italicized language was “argumentative and in certain circumstances confusing.” Instruction 7 does not mention “the mere fact of the occurre

1963The instruction there was truly-concerned with the burden of proof in a res ipsa loquitur case, and in its second paragraph said, “You should not find that the defendant was negligent from the mere fact of the occurrence shown by plaintiff’s evidence.” See also Sutton v. Fox Missouri Theatre Company, (Mo.), 356 S.W.2d 41 , and its "the mere fact that plaintiff was injured by a fall." It was said in condemnation of the instruction in the Wise case that the italicized language was “argumentative and in certain circumstances confusing.” Instruction 7 does not mention “the mere fact of the occurre

1963The instruction there was truly-concerned with the burden of proof in a res ipsa loquitur case, and in its second paragraph said, “You should not find that the defendant was negligent from the mere fact of the occurrence shown by plaintiff’s evidence.” See also Sutton v. Fox Missouri Theatre Company, (Mo.), 356 S.W.2d 41 , and its "the mere fact that plaintiff was injured by a fall." It was said in condemnation of the instruction in the Wise case that the italicized language was “argumentative and in certain circumstances confusing.” Instruction 7 does not mention “the mere fact of the occurre

1963The instruction there was truly-concerned with the burden of proof in a res ipsa loquitur case, and in its second paragraph said, “You should not find that the defendant was negligent from the mere fact of the occurrence shown by plaintiff’s evidence.” See also Sutton v. Fox Missouri Theatre Company, (Mo.), 356 S.W.2d 41 , and its "the mere fact that plaintiff was injured by a fall." It was said in condemnation of the instruction in the Wise case that the italicized language was “argumentative and in certain circumstances confusing.” Instruction 7 does not mention “the mere fact of the occurre

1957The court condemned an instruction which, in so far as pertinent here, read, in substance, that if the operator of the bus “having seen said defect, would not, in the exercise of the highest degree of care, have considered said defect to be dangerous, * * -V’ [ 361 Mo. 807 , 237 S.W.2d 106 ] The court pointed out that the instruction left the question of whether the defect in the street was dangerous to the driver of the bus.

1949In Taylor v. Metropolitan Street Ry Co. 166 Mo. App. 131 , 148 S. W. 470 , an instruction which stated a jury could consider such pain and suffering “as he (plaintiff) is reasonably likely to suffer therefrom in the future, ’ ’ was held to be good. ' , In Rolleg v. Lofton, supra, Judge Cox of this court condemned an instruction which told the jury that they might consider “such pain and mental, anguish as plaintix may in the future suffer, if any,* *,” and said: “This instruction is erroneous in that it-permits recovery for future pain and mental anguish.

1949In Taylor v. Metropolitan Street Ry Co. 166 Mo. App. 131 , 148 S. W. 470 , an instruction which stated a jury could consider such pain and suffering “as he (plaintiff) is reasonably likely to suffer therefrom in the future, ’ ’ was held to be good. ' , In Rolleg v. Lofton, supra, Judge Cox of this court condemned an instruction which told the jury that they might consider “such pain and mental, anguish as plaintix may in the future suffer, if any,* *,” and said: “This instruction is erroneous in that it-permits recovery for future pain and mental anguish.

1916Co., 62 Mo. 360 et seq.) held that “in civil cases involving a charge of crtme> the rule in this State is that the rights of the parties are to be determined by a preponderance of the evidence, while in a criminal prosecution the crime must be proved beyond a reasonable doubt.” It further held that “instructions are to be condemned as prejudicial which directly or indirectly suggest to the jury that the measure of proof required to establish the existence of a crime in issue in a civil case is affected by the criminal nature of the act under investigation,” following Rothschild v. Insurance Co

1916If it was improper for plaintiff to have referred, at all, to a criminal case, it was an impropriety adopted and joined in by defendant; a fault condoned. ’ ’ Relator contends the opinion of the Court of Appeals, in so far as it approves instruction “2,” is in conflict with Rodan v. Transit Co., 207 Mo. 392 ; Mockowik v. Railroad, 196 Mo. 571 ; State v. Kennedy, 154 Mo. 268, 288 ; and Morton v. Heidorn, 135 Mo. 608 . (a) In Morton v. Heidorn, this court condemned an instruction which told the jury that a will executed and published by one of sound mind was “presumed to be his free and voluntar

1916If it was improper for plaintiff to have referred, at all, to a criminal case, it was an impropriety adopted and joined in by defendant; a fault condoned. ’ ’ Relator contends the opinion of the Court of Appeals, in so far as it approves instruction “2,” is in conflict with Rodan v. Transit Co., 207 Mo. 392 ; Mockowik v. Railroad, 196 Mo. 571 ; State v. Kennedy, 154 Mo. 268, 288 ; and Morton v. Heidorn, 135 Mo. 608 . (a) In Morton v. Heidorn, this court condemned an instruction which told the jury that a will executed and published by one of sound mind was “presumed to be his free and voluntar

1916If it was improper for plaintiff to have referred, at all, to a criminal case, it was an impropriety adopted and joined in by defendant; a fault condoned. ’ ’ Relator contends the opinion of the Court of Appeals, in so far as it approves instruction “2,” is in conflict with Rodan v. Transit Co., 207 Mo. 392 ; Mockowik v. Railroad, 196 Mo. 571 ; State v. Kennedy, 154 Mo. 268, 288 ; and Morton v. Heidorn, 135 Mo. 608 . (a) In Morton v. Heidorn, this court condemned an instruction which told the jury that a will executed and published by one of sound mind was “presumed to be his free and voluntar

1915But in the case of Winslow v. Railroad, 170 Mo. App. 617, 622 , 157 S. W. 96 , the court condemned an instruction given at plaintiff’s request to the effect that, the shipper having proved an unreasonable delay in the transportation of stock, the burden was on the carrier to prove that such delay was not the result of negligence.

1915But in the case of Winslow v. Railroad, 170 Mo. App. 617, 622 , 157 S. W. 96 , the court condemned an instruction given at plaintiff’s request to the effect that, the shipper having proved an unreasonable delay in the transportation of stock, the burden was on the carrier to prove that such delay was not the result of negligence.

1913This view we think finds ample support in the books.” In Unterberger v. Seharff, 51 Mo. App. 102, 110 , the court said: “Where words are not actionable in themselves, it is incumbent upon the plaintiff to allege that they were meant to convey a sense in which they are actionable, and were so understood by the hearers or bystanders. [Christal v. Craig, 80 Mo. 373 .] But here the petition'neither alleges, nor does the proof show, that the words, ‘You are a liar; you did, and stuck the money in your pocket,’ were understood by the hearers to mean that plaintiff had embezzled or stolen the money.”

1913In Lewis v. Humphries, 64 Mo. App. 466, 471 , the court said: “The rule to be deduced from the authorities to be presently cited, including those of our own State, is that, in an action where the words are not obviously slanderous, that, in-order to entitle plaintiff to recover, first, he must allege and prove that the words were actually used in an actionable sense and were applied to plaintiff; second, that the hearers so understood them, and upon this latter point the testimony of the hearers as to how they understood them is- admissible. ” Many authorities are cited in support of this prop

1913This view we think finds ample support in the books.” In Unterberger v. Seharff, 51 Mo. App. 102, 110 , the court said: “Where words are not actionable in themselves, it is incumbent upon the plaintiff to allege that they were meant to convey a sense in which they are actionable, and were so understood by the hearers or bystanders. [Christal v. Craig, 80 Mo. 373 .] But here the petition'neither alleges, nor does the proof show, that the words, ‘You are a liar; you did, and stuck the money in your pocket,’ were understood by the hearers to mean that plaintiff had embezzled or stolen the money.”

1906The general rule in this State, in respect to allowing punitive damages, is that they may be awarded wherever there is a willful, malicious, wanton or reckless tort to the person or property of the plaintiff. [Ken nedy v. Railroad, 36 Mo. 351 ; Perkins v. Railroad, 55 Mo. 201 ; State v. Jungling, 116 Mo. 1 . c. 165; Albers v. The Merchants’ Exchange of St.

1906The general rule in this State, in respect to allowing punitive damages, is that they may be awarded wherever there is a willful, malicious, wanton or reckless tort to the person or property of the plaintiff. [Ken nedy v. Railroad, 36 Mo. 351 ; Perkins v. Railroad, 55 Mo. 201 ; State v. Jungling, 116 Mo. 1 . c. 165; Albers v. The Merchants’ Exchange of St.

1906The general rule in this State, in respect to allowing punitive damages, is that they may be awarded wherever there is a willful, malicious, wanton or reckless tort to the person or property of the plaintiff. [Ken nedy v. Railroad, 36 Mo. 351 ; Perkins v. Railroad, 55 Mo. 201 ; State v. Jungling, 116 Mo. 1 . c. 165; Albers v. The Merchants’ Exchange of St.