error instruction in Missouri

1992First National Bank of Collinsville v. Goldfarb, supra. The important question is not who made the error but whether the error was made in rendering the judgment or in the entry of it.

1978First National Bank of Collinsville v. Gold- *371 farb, supra. The important question is not who made the error but whether the error was made in rendering the judgment or in the entry of it.

1968However, it was said therein that "to constitute a valid gift causa mortis, the gift must be fully executed as distinguished from a mere executory gift; but the gift, though fully executed, is nevertheless a conditional and revocable gift." Deneff v. Helms, 42 Or. 161 , 70 P. 390 , also pertains to a gift causa mortis, and the court found that "It is clearly manifest from what he said and did that it was his present purpose to part with the title to the money, and bestow it upon his sister, after the payment of the specified expenses and charges, which he directed Helms [the one to whom delive

1968However, it was said therein that “to constitute a valid gift causa mortis, the gift must be fully executed as distinguished from a mere executory gift; but the gift, though fully executed, is nevertheless a conditional and revocable gift.” Deneff v. Helms, 42 Or. 161 , 70 P. 390 , also pertains to a gift causa mortis, and the court found that “It is clearly manifest from what he said and did that it was his present purpose to part with the title to the money, and bestow it upon his sister, after the payment of the specified expenses and charges, which he directed Helms [the one to whom delive

1968However, it was said therein that “to constitute a valid gift causa mortis, the gift must be fully executed as distinguished from a mere executory gift; but the gift, though fully executed, is nevertheless a conditional and revocable gift.” Deneff v. Helms, 42 Or. 161 , 70 P. 390 , also pertains to a gift causa mortis, and the court found that “It is clearly manifest from what he said and did that it was his present purpose to part with the title to the money, and bestow it upon his sister, after the payment of the specified expenses and charges, which he directed Helms [the one to whom delive

1968However, it was said therein that “to constitute a valid gift causa mortis, the gift must be fully executed as distinguished from a mere executory gift; but the gift, though fully executed, is nevertheless a conditional and revocable gift.” Deneff v. Helms, 42 Or. 161 , 70 P. 390 , also pertains to a gift causa mortis, and the court found that “It is clearly manifest from what he said and did that it was his present purpose to part with the title to the money, and bestow it upon his sister, after the payment of the specified expenses and charges, which he directed Helms [the one to whom delive

1947Long v. Ellison, 272 Mo. 571 , 199 S. W. 984, 988 , that the error they claim inheres in instruction 2 is not cured by ar correct or limiting instruction given at the instance of the adverse party.

1947Long v. Ellison, 272 Mo. 571 , 199 S. W. 984, 988 , that the error they claim inheres in instruction 2 is not cured by ar correct or limiting instruction given at the instance of the adverse party.

1945The favorite quotation on the subject is lifted from Harrison v. Kansas City Electric Light Co., 195 Mo. 606, 635 , 93 S. W. 951, 960 , where it is said: ‘To hold otherwise would be to establish the rule of practice that when a court made a mistake and admitted incompetent testimony, it could not ef *376 fectually correct the error by instruction to the jury, but that in order to remove the sting of the error it would have to discharge the jury and award a new trial before a new venire.

1945The favorite quotation on the subject is lifted from Harrison v. Kansas City Electric Light Co., 195 Mo. 606, 635 , 93 S. W. 951, 960 , where it is said: ‘To hold otherwise would be to establish the rule of practice that when a court made a mistake and admitted incompetent testimony, it could not ef *376 fectually correct the error by instruction to the jury, but that in order to remove the sting of the error it would have to discharge the jury and award a new trial before a new venire.

1899And when the court delegates to the jury a work that it should have done, and in doing so it gave' an erroneous instruction, and the jury proceed thereunder, and made a finding for the right party, as the court should have done without them, no error has been committed authorizing the granting of a new trial, 'notwithstanding the error in the instruction.’ It is the. settled doctrine of this court that if upon the pleadings and undisputed facts the judgment is for the right party, there can be no reversal no matter what errors intervened upon the trial. [Orth v. Dorschlein, 32 Mo. 336 ; Ellerb

1895Orth v. Dorschlein, 32 Mo. 366 ; Ellerbe v. Bank, 109 Mo. 445 , and others.

1988This argument is drawn from language in Fowler v. Park, 673 S.W.2d at 756 , suggesting that use by a party of language in closing argument which is taken from an instruction contended to be erroneous may be looked to as indicative of whether the error had “likely prejudicial impact.” The theory is that if the complaining party finds the instruction language appropriate for use in closing argument, or at least does not make argument more difficult, such is one indication the error in the instruction is not prejudicial.

1979Plaintiff also suggests that the giving of the verdict coercive instruction was not justified in this case by the state of jury deliberations, a factor of significance as noted in Cowan, supra. In contrast to Cowan , however, where no deadlock or impasse was reported, the jury reported to the court in the subject case after more than two hours’ deliberation that they could not reach a verdict.

1966Bowles v. Eisenmayer, Mo.App., 22 S.W.2d 884 , 885; Carey v. Crawford Electric Cooperative, Inc., Mo., 347 S.W.2d 184, 190 ; Crews v. Kansas City Public Service Co., 341 Mo. 1090 , 111 S.W.2d 54, 57 .

1966Bowles v. Eisenmayer, Mo.App., 22 S.W.2d 884 , 885; Carey v. Crawford Electric Cooperative, Inc., Mo., 347 S.W.2d 184, 190 ; Crews v. Kansas City Public Service Co., 341 Mo. 1090 , 111 S.W.2d 54, 57 .

1966Bowles v. Eisenmayer, Mo.App., 22 S.W.2d 884 , 885; Carey v. Crawford Electric Cooperative, Inc., Mo., 347 S.W.2d 184, 190 ; Crews v. Kansas City Public Service Co., 341 Mo. 1090 , 111 S.W.2d 54, 57 .

1965Co., Mo., 325 S.W.2d 776, 781 , “* * * neither the evidence nor the instructions may be broader than the pleadings, one may not plead one state of facts and theory and to the unprepared surprise of his adversary recover on another and different theory and state of facts. * * * ” For this error in the instruction, which was highly prejudicial to appellant, the judgment should be reversed and the cause remanded.

1949The judgment must be reversed and the cause remanded. ’ ’ In Cook v. Globe Printing Co. 227 Mo. 471 , 127 S. W. 332 , Judge Gantt, speaking for the Supreme Court en Bane, at page 356, said: “While the verdict is, in our opinion, too large, yet we cannot say that we believe that it is the result of either passion or prejudice, and therefore we are of the opinion that it is a case in which a remittitur may properly be required of the plaintiff, and if he accedes to it that the judgment should be affirmed for the amount of the verdict less the remittitur.” I feel that the remittitur, ordered by t

1949The judgment must be reversed and the cause remanded. ’ ’ In Cook v. Globe Printing Co. 227 Mo. 471 , 127 S. W. 332 , Judge Gantt, speaking for the Supreme Court en Bane, at page 356, said: “While the verdict is, in our opinion, too large, yet we cannot say that we believe that it is the result of either passion or prejudice, and therefore we are of the opinion that it is a case in which a remittitur may properly be required of the plaintiff, and if he accedes to it that the judgment should be affirmed for the amount of the verdict less the remittitur.” I feel that the remittitur, ordered by t

1939Court of Appeals), 50 S. W. (2d) 217 , l. c. 220.] And in Cassin v. Lusk, 277 Mo. 663 , l. c. 673, 210 S. W. 902 , l. c. 905, the court held that: “It is the established rule in this State, that an instruction which purports to cover the entire case and direct a verdict, must contain within itself a submission of all the issues upon every phase of the evidence, and any failure on the part of the first instruction in that respect would have been reversible error. ’ ’ Plaintiff contends, however, that instruction 3 given on behalf of the defendant, as set out above, cures the error in instructio

1939Court of Appeals), 50 S. W. (2d) 217 , l. c. 220.] And in Cassin v. Lusk, 277 Mo. 663 , l. c. 673, 210 S. W. 902 , l. c. 905, the court held that: “It is the established rule in this State, that an instruction which purports to cover the entire case and direct a verdict, must contain within itself a submission of all the issues upon every phase of the evidence, and any failure on the part of the first instruction in that respect would have been reversible error. ’ ’ Plaintiff contends, however, that instruction 3 given on behalf of the defendant, as set out above, cures the error in instructio

1939Court of Appeals), 50 S. W. (2d) 217 , l. c. 220.] And in Cassin v. Lusk, 277 Mo. 663 , l. c. 673, 210 S. W. 902 , l. c. 905, the court held that: “It is the established rule in this State, that an instruction which purports to cover the entire case and direct a verdict, must contain within itself a submission of all the issues upon every phase of the evidence, and any failure on the part of the first instruction in that respect would have been reversible error. ’ ’ Plaintiff contends, however, that instruction 3 given on behalf of the defendant, as set out above, cures the error in instructio

1935In that situation clearly the error in the instruction was prejudicial to the rights of plaintiff. *935 In this connection we note that in Payne v. Reed, supra, in discussing an identical clause in an instruction, referred to it as “a patent error though not stressed here, but which may account for the jury returning a verdict against the weight of the evidence,”' and in the case before us that is evidently what the trial judge was convinced of, namely, that the error in the instruction caused the jury to return a verdict against the weight of the evidence and therefore granted plaintiff’s mot

1933Co., 143 Mo. 460, 468 , 45 S. W. 268 ; White v. Railroad, 250 Mo. 476, 486 , 157 S. W. 593 ), but the better reason seems to be that the error in the instruction complained of is thus made non-prejudieial. [Aronovitz v. Arky (Mo.), 219 S. W. 620 , 622; Coleman v. Rightmyer (Mo.), 285 S. W. 403 , 405.] Plaintiff’s own testimony made it a question for the jury whether “he failed to look to the south before attempting to make said turn,” and it was not reversible error to give this instruction.

1933Co., 143 Mo. 460, 468 , 45 S. W. 268 ; White v. Railroad, 250 Mo. 476, 486 , 157 S. W. 593 ), but the better reason seems to be that the error in the instruction complained of is thus made non-prejudieial. [Aronovitz v. Arky (Mo.), 219 S. W. 620 , 622; Coleman v. Rightmyer (Mo.), 285 S. W. 403 , 405.] Plaintiff’s own testimony made it a question for the jury whether “he failed to look to the south before attempting to make said turn,” and it was not reversible error to give this instruction.

1933Co., 143 Mo. 460, 468 , 45 S. W. 268 ; White v. Railroad, 250 Mo. 476, 486 , 157 S. W. 593 ), but the better reason seems to be that the error in the instruction complained of is thus made non-prejudieial. [Aronovitz v. Arky (Mo.), 219 S. W. 620 , 622; Coleman v. Rightmyer (Mo.), 285 S. W. 403 , 405.] Plaintiff’s own testimony made it a question for the jury whether “he failed to look to the south before attempting to make said turn,” and it was not reversible error to give this instruction.

1933Co., 143 Mo. 460, 468 , 45 S. W. 268 ; White v. Railroad, 250 Mo. 476, 486 , 157 S. W. 593 ), but the better reason seems to be that the error in the instruction complained of is thus made non-prejudieial. [Aronovitz v. Arky (Mo.), 219 S. W. 620 , 622; Coleman v. Rightmyer (Mo.), 285 S. W. 403 , 405.] Plaintiff’s own testimony made it a question for the jury whether “he failed to look to the south before attempting to make said turn,” and it was not reversible error to give this instruction.

1932Error in an instruction to the jury on the subject of the testimony of experts covering these phases of the case cannot be said to be "a mere technicality." This court ruled in Scanlon v. Kansas City, 325 Mo. 125 , 28 S.W.2d 84 , l.c. 95, that "an opinion, when not a mere guess or conjecture but an inference drawn by one of requisite experiential capacity from adequate data is evidence." It also ruled that, under the facts in that case, the error in the instruction on expert witnesses materially affected the merits of the action.

1932Error in an instruction to the jury on the subject of the testimony of experts covering these phases of the case cannot be said to be "a mere technicality." This court ruled in Scanlon v. Kansas City, 325 Mo. 125 , 28 S.W.2d 84 , l.c. 95, that "an opinion, when not a mere guess or conjecture but an inference drawn by one of requisite experiential capacity from adequate data is evidence." It also ruled that, under the facts in that case, the error in the instruction on expert witnesses materially affected the merits of the action.

1928Co., 295 S. W. 757 .] Furthermore, in view of the fact that plaintiff alone testified in his behalf as to the facts connected with his injury, which were more or less contradicted by the testimony of three of defendant’s witnesses, it is apparent that the error of this instruction was in favor of appellant and against respondent.

1928It was shown in evidence that she was rearing several children, some of whom were small and one was an infant, and we remarked that "the jury may have thought those were facts to be weighed on the issue of the amount to be awarded." The judgment was reversed and the cause remanded for retrial upon grounds other than the error in the instruction on the measure of damages, as to which latter ground we said that "we might pass over this error, had no other occurred prejudicial to defendants." We have ruled, however, in several recent cases, that the giving of an instruction on the measure of dama

1928It was shown in evidence that she was rearing several children, some of whom were small and one was an infant, and we remarked that "the jury may have thought those were facts to be weighed on the issue of the amount to be awarded." The judgment was reversed and the cause remanded for retrial upon grounds other than the error in the instruction on the measure of damages, as to which latter ground we said that "we might pass over this error, had no other occurred prejudicial to defendants." We have ruled, however, in several recent cases, that the giving of an instruction on the measure of dama

1928It was shown in evidence that she was rearing several children, some of whom were small and one was an infant, and we remarked that "the jury may have thought those were facts to be weighed on the issue of the amount to be awarded." The judgment was reversed and the cause remanded for retrial upon grounds other than the error in the instruction on the measure of damages, as to which latter ground we said that "we might pass over this error, had no other occurred prejudicial to defendants." We have ruled, however, in several recent cases, that the giving of an instruction on the measure of dama

1926Tt was held in Perry v. Van Matre, 176 Mo. App. 100 , 107: “Where an error in an instruction to a jury occurs at a trial, and it is'followed by a result prejudicial to the excepting party (as, for instance in this (‘ase, by an adverse verdict) a reviewing court cannot properly consider the error otherwise than as a cause contributing to that.' result, unless the exact bearing it has had thereon can be discerned, and is found to have been harmless to the rights of the complaining party.