fatal error in Missouri

1993Id. at 69 .

1993Id. at 69 .

1992(Emphasis in original.) “The point fails to state wherein and why the court’s rulings are erroneous, a fatal violation of Rule 84.04(d).” Callier v. Callier, 793 S.W.2d 164 (Mo.App.1990).

1983In support of his contention that this was fatal error, defendant relies on several cases, including State v. Adcox, 312 Mo. 55 , 278 S.W. 990 (1925); State v. Adams, 308 Mo. 664 , 274 S.W. 21 (1925); State v. Butler, 178 Mo. 272 , 77 S.W. 560 (1903); and State v. Farris, 229 S.W. 1100 (Mo.App.1921).

1983In support of his contention that this was fatal error, defendant relies on several cases, including State v. Adcox, 312 Mo. 55 , 278 S.W. 990 (1925); State v. Adams, 308 Mo. 664 , 274 S.W. 21 (1925); State v. Butler, 178 Mo. 272 , 77 S.W. 560 (1903); and State v. Farris, 229 S.W. 1100 (Mo.App.1921).

1983In support of his contention that this was fatal error, defendant relies on several cases, including State v. Adcox, 312 Mo. 55 , 278 S.W. 990 (1925); State v. Adams, 308 Mo. 664 , 274 S.W. 21 (1925); State v. Butler, 178 Mo. 272 , 77 S.W. 560 (1903); and State v. Farris, 229 S.W. 1100 (Mo.App.1921).

1983In support of his contention that this was fatal error, defendant relies on several cases, including State v. Adcox, 312 Mo. 55 , 278 S.W. 990 (1925); State v. Adams, 308 Mo. 664 , 274 S.W. 21 (1925); State v. Butler, 178 Mo. 272 , 77 S.W. 560 (1903); and State v. Farris, 229 S.W. 1100 (Mo.App.1921).

1983In support of his contention that this was fatal error, defendant relies on several cases, including State v. Adcox, 312 Mo. 55 , 278 S.W. 990 (1925); State v. Adams, 308 Mo. 664 , 274 S.W. 21 (1925); State v. Butler, 178 Mo. 272 , 77 S.W. 560 (1903); and State v. Farris, 229 S.W. 1100 (Mo.App.1921).

1983In support of his contention that this was fatal error, defendant relies on several cases, including State v. Adcox, 312 Mo. 55 , 278 S.W. 990 (1925); State v. Adams, 308 Mo. 664 , 274 S.W. 21 (1925); State v. Butler, 178 Mo. 272 , 77 S.W. 560 (1903); and State v. Farris, 229 S.W. 1100 (Mo.App.1921).

1961Jur., Trial, Sec. 462, page 366: “However, the rule just stated as to the opening argument of the plaintiff is not often observed and enforced.” In Goldstein v. Fendelman, Mo.Sup., 336 S.W.2d 661, 667 , Judge Hyde in discussing the effect of the failure of plaintiff’s counsel in his opening argument to state what amount of money he was asking the jury to give, stated: “ * * * while we recognize that the trial court has considerable discretion in the matter of arguments of counsel, we consider it unfair and improper to permit plaintiff’s counsel to do this for the first time in his closing argu

1918This was fatal error. [State ex rel. v. Ellison, 270 Mo. 645, 653 .] It is true that a plaintiff may charge several separate specific acts of negligence in his petition and need only "-prove one of them, if that one is sufficient to constitute a cause of action. [Jordon v. Transit Co., 202 Mo. 418, 426 ; Spaulding v. Street Ry.

1918This was fatal error. [State ex rel. v. Ellison, 270 Mo. 645, 653 .] It is true that a plaintiff may charge several separate specific acts of negligence in his petition and need only "-prove one of them, if that one is sufficient to constitute a cause of action. [Jordon v. Transit Co., 202 Mo. 418, 426 ; Spaulding v. Street Ry.

1918Co., 129 Mo. App. 607, 612 .] But that is not what was doné by the plaintiff in the present case.

1916But, under the rules of practice and pleadings in this State, defendant waived the objection by answering to the merits of the action finally pleaded, and going to trial thereon. [Scovill v. Glasner, 79 Mo. 449 ; Liese v. Meyer, 143 Mo. 547, 556 , 45 S. W. 282 ; Dakan v. Chase Mercantile Co., 197 Mo. 238, 270 , 94 S. W. 944 ; Cook v. Globe Printing Co., 227 Mo. 471, 525 , 127 S. W. 332 .] That such objection may he waived, and a proper trial he had, and a valid judgment he rendered would appear to be clear.

1916But, under the rules of practice and pleadings in this State, defendant waived the objection by answering to the merits of the action finally pleaded, and going to trial thereon. [Scovill v. Glasner, 79 Mo. 449 ; Liese v. Meyer, 143 Mo. 547, 556 , 45 S. W. 282 ; Dakan v. Chase Mercantile Co., 197 Mo. 238, 270 , 94 S. W. 944 ; Cook v. Globe Printing Co., 227 Mo. 471, 525 , 127 S. W. 332 .] That such objection may he waived, and a proper trial he had, and a valid judgment he rendered would appear to be clear.

1916But, under the rules of practice and pleadings in this State, defendant waived the objection by answering to the merits of the action finally pleaded, and going to trial thereon. [Scovill v. Glasner, 79 Mo. 449 ; Liese v. Meyer, 143 Mo. 547, 556 , 45 S. W. 282 ; Dakan v. Chase Mercantile Co., 197 Mo. 238, 270 , 94 S. W. 944 ; Cook v. Globe Printing Co., 227 Mo. 471, 525 , 127 S. W. 332 .] That such objection may he waived, and a proper trial he had, and a valid judgment he rendered would appear to be clear.

1916But, under the rules of practice and pleadings in this State, defendant waived the objection by answering to the merits of the action finally pleaded, and going to trial thereon. [Scovill v. Glasner, 79 Mo. 449 ; Liese v. Meyer, 143 Mo. 547, 556 , 45 S. W. 282 ; Dakan v. Chase Mercantile Co., 197 Mo. 238, 270 , 94 S. W. 944 ; Cook v. Globe Printing Co., 227 Mo. 471, 525 , 127 S. W. 332 .] That such objection may he waived, and a proper trial he had, and a valid judgment he rendered would appear to be clear.

1916But, under the rules of practice and pleadings in this State, defendant waived the objection by answering to the merits of the action finally pleaded, and going to trial thereon. [Scovill v. Glasner, 79 Mo. 449 ; Liese v. Meyer, 143 Mo. 547, 556 , 45 S. W. 282 ; Dakan v. Chase Mercantile Co., 197 Mo. 238, 270 , 94 S. W. 944 ; Cook v. Globe Printing Co., 227 Mo. 471, 525 , 127 S. W. 332 .] That such objection may he waived, and a proper trial he had, and a valid judgment he rendered would appear to be clear.

1916But, under the rules of practice and pleadings in this State, defendant waived the objection by answering to the merits of the action finally pleaded, and going to trial thereon. [Scovill v. Glasner, 79 Mo. 449 ; Liese v. Meyer, 143 Mo. 547, 556 , 45 S. W. 282 ; Dakan v. Chase Mercantile Co., 197 Mo. 238, 270 , 94 S. W. 944 ; Cook v. Globe Printing Co., 227 Mo. 471, 525 , 127 S. W. 332 .] That such objection may he waived, and a proper trial he had, and a valid judgment he rendered would appear to be clear.

1916But, under the rules of practice and pleadings in this State, defendant waived the objection by answering to the merits of the action finally pleaded, and going to trial thereon. [Scovill v. Glasner, 79 Mo. 449 ; Liese v. Meyer, 143 Mo. 547, 556 , 45 S. W. 282 ; Dakan v. Chase Mercantile Co., 197 Mo. 238, 270 , 94 S. W. 944 ; Cook v. Globe Printing Co., 227 Mo. 471, 525 , 127 S. W. 332 .] That such objection may he waived, and a proper trial he had, and a valid judgment he rendered would appear to be clear.

1895The fact that his wife was unnecessarily joined with him as a party plaintiff and included in the judgment, affords no ground for reversal of the judgment since “such joinder is not a fatal error, and may be corrected in this court by striking out her name as party plaintiff, and leaving the judgment to stand in the name of the husband alone. ” Mueller v. Kaessmann, 84 Mo. 318 .

1882In the case of the State v. Hill, 69 Mo. 451 , it was held that in a ease for murder in the first degree, “ it is a fatal error to give an instruction which ignores the element of deliberation, notwithstanding another instruction is given correctly defining the crime.” Eor the errors above pointed out, under the authority of the following cases the judgment must be reversed: State v. Simms, 68 Mo. 305 ; State v. Dearing, 65 Mo. 532 ; State v. Mitchell, 64 Mo. 192 ; Jones v. Talbot, 4 Mo. 279 ; Hickman v. Griffin, 6 Mo. 37 .

1882In the case of the State v. Hill, 69 Mo. 451 , it was held that in a ease for murder in the first degree, “ it is a fatal error to give an instruction which ignores the element of deliberation, notwithstanding another instruction is given correctly defining the crime.” Eor the errors above pointed out, under the authority of the following cases the judgment must be reversed: State v. Simms, 68 Mo. 305 ; State v. Dearing, 65 Mo. 532 ; State v. Mitchell, 64 Mo. 192 ; Jones v. Talbot, 4 Mo. 279 ; Hickman v. Griffin, 6 Mo. 37 .

1882In the case of the State v. Hill, 69 Mo. 451 , it was held that in a ease for murder in the first degree, “ it is a fatal error to give an instruction which ignores the element of deliberation, notwithstanding another instruction is given correctly defining the crime.” Eor the errors above pointed out, under the authority of the following cases the judgment must be reversed: State v. Simms, 68 Mo. 305 ; State v. Dearing, 65 Mo. 532 ; State v. Mitchell, 64 Mo. 192 ; Jones v. Talbot, 4 Mo. 279 ; Hickman v. Griffin, 6 Mo. 37 .

1882In the case of the State v. Hill, 69 Mo. 451 , it was held that in a ease for murder in the first degree, “ it is a fatal error to give an instruction which ignores the element of deliberation, notwithstanding another instruction is given correctly defining the crime.” Eor the errors above pointed out, under the authority of the following cases the judgment must be reversed: State v. Simms, 68 Mo. 305 ; State v. Dearing, 65 Mo. 532 ; State v. Mitchell, 64 Mo. 192 ; Jones v. Talbot, 4 Mo. 279 ; Hickman v. Griffin, 6 Mo. 37 .