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

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.

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.

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

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.

1923Co., 226 S. W. 650 .] We have carefully examined all the instructions in the case and hold that the error in instruction No. 1 was not cured by other instructions given.

1920In Stolovey v. Fleming et al., 8 S.W.2d 832 , Division One again had a similar instruction under consideration, the action being for personal injuries sustained by the plaintiff while endeavoring to board a street car.

1914The judgment appealed from is reversed and the cause remanded. [See Gordon v. Railroad, 153 Mo. App. l. c. 565, 134 S. W. 26 , and Glenn v. Street Ry.

1913Besides, when one is convicted of a lower degree of the offence, an error in an instruction as to a higher degree is harmless. [State v. Stockwell, 106 Mo. 36 ; State v. Grote, 109 Mo. 345 .] Declarations of Deceased as Evidence.

1913Besides, when one is convicted of a lower degree of the offence, an error in an instruction as to a higher degree is harmless. [State v. Stockwell, 106 Mo. 36 ; State v. Grote, 109 Mo. 345 .] Declarations of Deceased as Evidence.

1913This is all that is meant by the declaration that has occasionally been made to the effect that ‘error is presumptively prejudicial.’ ” [Morton v. Heidorn, 135 Mo. l. c. 617, 618, 37 S. W. 504 .] The burden is always on the appellant to convince the court, not only that error was committed against him, but that it was prejudicial. [Lower v. Coal & Min.

1913An erroneous instruction must be prejudicial in order to warrant a reversal. [Bradford v. Railroad, 136 Mo. App. l. c. 711, 119 S. W. 32 .] “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 case, 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.

1912Without going into the case with any more particularity and confining ourselves here to a discussion of the points presented on this appeal, we reiterate what we said in this case, 142 Mo. App. 676 , when formerly here as to the merits of the case itself and as to the correctness of this verdict and judgment, the error in the instruction for which it was formerly reversed not having been repeated at this second trial.

1911Co. v. Rothbaum (decided this term.)] And though if non-lien-able articles are, by mistake, innocently included, it will not vitiate the lien (Hydraulic Press Brick Co. v. McTaggart, 76 Mo. App. 347 ), yet if they are of such nature, or the facts are such, that the good cannot be separated from the bad, the whole lien is destroyed. [Dugan Cut Stone Co. v. Gray, 43 Mo. App. 671 ; O’Brien Boiler Works v. Haydock, 59 Mo. App. 653 ; Lumber Co. v. Wright, 81 Mo. App. 535 .] In Boisot on Mechanics Liens, sec. 428, the rule isstatedasfollows: “In order to render an error in the claim harmless, it mus