*1 by if be bad examination, direct lie bis was asked counsel prose- any hurting killing Miss Tbe injuring', Luna. intention attorney ^charged ap- objected ground it on tbe that was not cuting intentionally objection overruled pellant bad killed ber tbe was but Thereupon, appellant answered that bad no such intention. be prosecutor proceeded up to build this false issue in cross-exam- tbe be and Miss appellant elicited from tbe ination. He statement nightly keeping company bad been almost Luna sweethearts and were sorry Then that be be ber. months, for about six was killed target tbe at it. having prosecutor proceeded erected tbe to shoot prosecu- objection appellant’s counsel, the strenuous tbe Over to be in a res- permitted appellant tor ask tbe had not stated was night West later on of tbe taurant Plains homicide be girl.” guessed bad bad a for be “bad killed a bad wreck damned allowing question appellant stated because the (Tbe was tbe court kindly feeling deceased.) appellant bad tbe Tbe de- expressed making tbe in the whereupon nied statement restaurant court' they permitted tbe State to introduce who beard two witnesses said appellant it. Also prosecutor question him make tbe asked out, previously ruled he attended Miss Luna’s funeral. whether bad again questiоn reprimand tbe court excluded refused to rather him and prosecutor tbe fact defended took tbe blame it- —in Owing tbe prominence given matter, appellant’s thus self. into, it, go forced so was appellant counsel felt asked and testified his at of tbe confined to bed tbe time funeral. All that he was this foreign issue of unintentional tbe homicide cul- prejudicial think it negligence, appellant. and we Fur- pable ther, by ap- that the еrror not so far take view invited we they asked when him if be to kill pellant’s counsel intended Miss open tbe to all doors that followed. Luna, as of this judgment error admission For the tbe cause remanded. All concur. reversed Realty May St. Louis & Amusement Corporation, Flint Loew’s Corporation, Appellant. (2d)W. 193. Two, Division March 1939. 311' *2 appellant. Lindsey George Hodgman A. Robert 8.
B. respondent. Sherman Landau for *4 Realty Louis
BOHLING, St. Amusement C. Loew’s Com- appeals granting May pany, corporation, order Flint a giving trial for asserted error of Instructions Nos. "8” new $15,000 Respondent appellant. damages "9” asked on behalf respondent’s allegedly caught injuries sustained when foot *5 carpeting descending flight while loose, torn, worn and insecure a in reaches appellant’s premises. The case writer stairs on of reassignment. calling “a fair and Invoking Rule 15 for portion that of our
I. reiteration, state- of the of the- case without concise statement facts 1929, 1060, R. Mo. law, argument” (consult Sec. ments of alleging 1341), respondent filed a motion to dismiss Ann., p. Stat. has a biased and distorted presents that statement appellant’s substance argumen- of an record, interspersed with comments version of the testimony ap- nature, emphasizes favorable quotes tative requires .rule such pellant. portion have the above said We said facts, than a the ultimate rather a fair and concise statement of facts, testimony tending to admitted statement of the establish plaintiff defendant, except when on behalf of both evidence necessary evidence, to an is east on demurrer to the as are plaintiff assigned appeal. understanding of the errors and determination 447, 448, W. Hydraulic Co., 323 Mo. 19 S. v. Press Brick [Sims 294, No. 8 on the burden (2d) Appellant’s Instruction 295.] weight No. 9 on the and value of proof and Instruction discharge credibility witnesses. To that bur- and the City Jockey resting upon aрpellant here Kansas den v. [Simmons (2d) 119, 120(1); W. v. Club, 99, 104(1), 334 Mo. 66 S. Yuronis 1039, 518, 523(6)] W. Wells, 1048(III), (2d) 322 Mo. 17 S. not essential to a determination of
lengthy statement of facts was Appellant, support involved.. propriety of the instructions stating respondent, instructions, after ultimate facts said favorable and, in some in- inconsistent therewith mentioned other Re- stances, placed emphasis upon particular evidence. quoted and attention to two rather brief sentences spondent also directs our argumentative to cer- of an nature with reference wherein comments testimony appear. While statement does not strict- tain argument, a ly respect our rules with to conciseness and conform to of it the abstract of the record convinces us comparison with necessarily eonvejr false, distorted, imper- pernicious as to not so facts’bearing upon instructions, to the said impression аs fect .appellant discloses, pointedly, somewhat was entitled to perhaps thereon. The administration of rules of this proper instructions deprives not call for drastic action which with reason do court infractions, to an litigant of a review attributable advocate’s cause, present, respect his which pardonable devotion to client’s litigant disclosing error, has the burden of issues on which the to those difficulty Or this oрposing counsel court and are of no real no real presented. of the consequence [Harbison determination iss.ues Ry. 440, 448, 449, Co., R. I. P. 327 Mo. 37 S. W. Chicago, & v. City Rys. 612(1-3); (Mo.), Co. 243 S. W. Crockett Kansas respondent’s motion. 902, 905(2).] We overrule involved, II. Instruction No. so far as material to the issues negligence proved to the effect “that must be and that the burden *6 316 you upon presume that plaintiff; of that issue is the cannot proof of ’’ you guess, speculate; negligent, surmise or nor can
the defendant was negligence duty prove and upon plaintiff to defendant’s the rested that negligence plaintiff’s injury between and connection the causal passion, “neither jury; the that satisfaction of to the reasonable jury’s decision; that sympathy” should influence the prejudice testimony you upon negligence that the “if find and believe the'issue of weight credibility evenly balanced,” is respect its to with negligеnt, defendant jury be unable to determine whether the was. the of proof of issue “plaintiff has not sustained the burden then to required by is the law do” and the verdict negligence as she should be for the defendant. from their separated of this instruction are
a. clauses Individual subjected upon to is criticism which not warranted context reading as It is the clause “that of the instruction asserted whole. of negligence proved proof must be that the burdеn of that issue contributory of upon plaintiff” placed disproving the the burden is emphasized by negligence upon the that the error plaintiff; and “you presume negligent that the the clauses cannot defendant weight jury .” the effect if the the . and to that believed . credibilitjr negligence” the to be “upon of the issue of “evenly in balanced,” the verdict should be for defendant. The materially by respondent cases stressed differ structions the e., Lines, Inc., instruction; i. v. Ni Sun Mo. instant Szuch 332 the 475(4), (2d) 471, 473(5), W. “that .the 469, 58 S. discussed burden . plaintiff necessary to . . proof of is on the establish the facts (emphasis ours), a verdict in his favor under these instructions” upon plaintiff’s plain main instruction conditioned a verdict where ordinary care; Co., E. tiff’s and Clark Atchison & Br. of exercise 544, (2d) 153(16), differently W. 564, 143, presented Mo. 24 S. 324 containing An telling instruction a clause the worded instruction. contrary, proof jury that “on the the law casts the burden of with chargе respect negligence] plaintiff” upheld to it of [the against People’s Co., 695, M. 699, like attack in Linders v. 326 Mo. 32 (2d) only the (stating: W. “. . '. instruction S. deals right the plaintiff’s recovery, reference to issue of without City (Mo.), contributory Kansas 70 W. negligence”). Bliel v. ruling case) (ruled judges ap the Szuch 914(2) “that proved advising jury proof an the burden of .j upon plaintiff prove you his . . .” and “if believe case . . evenly . your .' . balanced verdict must ”.; intelligent . for defendant . reasoned аn would not include “plaintiff’s understand case did defendant’s defense” contributory negligence, and that matter was one nondirec 8, although tion rather than misdirection. Instruction No. somewhat refers, negli- inaptly worded, whole, when read as a. may any burden npon rest gence to or whom and makes no reference It not misdirect contributory negligence. does disprove . contributory negligence by informing disproving it the burden of in- having respondent, requested respondent; and was on contributory negligence, is proving struction on burden others, [See, among complain of nondirection. position no *7 462- Morgan 451, v. 214 Mo. cases, supra; Mulhall, Bliel and Linders speak not when 4, “He who’does 7(b) reasoning: W. (b), 114 S. — would;” v. he Norris should, speak heard to when he will not be 783, 695, 771, 144 W. Ry. Co., 789.] Mo. S. Louis, I. M. & S. 239 St. jury the a lecture to says the instruction was Respondent
b. also as to all the case. duty and not on its to defendant (cid:127) respondеnt here stresses proof, the of which the of burden On issue respondent upon instruction was discuss, and the cases relies like a Co., 996, 1003(2), 339 Doherty Butter Mo. approved in v. St. Louis the 742, 744(3). other statements in instruction (2d) 98 W. As to S. Turk, 899, constituting see Gardner v. 343 Mo. not reversible error herewith, 158, III, I and of even date (2d) paragraphs 123 W. S.
cases there cited. attorneys giving in duty resting upon to aid the court
The are for the to arrive át a correct proper instructions as needed presentation of instructions preparation the verdict embraces affecting their client’s of action or covering all issues cause proper upon the of but, respect issue whom burden defense the defeating rests, preparation not the of instructions proof does embrace adversary. directing their a verdict for a verdict for their client instructions, proof of Recently much on burden we have writtеn short, simple thereon. See for a instruction indicating preference 991, (2d) 691, 93 W. Evans, 996(2), 997(3), 338 Mo. Nelson Dyer 1082, 1083- (Mo.), (2d) 57 S. W. 694(4), 695(5); Mitchell v. upon by discussing and relied somewhat similar eases instructions the there re- ease criticised instruction respondent. The Mitchell instruction, indicating preference simple for a short’ viewed, A on fault reversible error. defendant’s instruction not hold the did places great erroneous because it too proof of is held the burden lеngth. instance, not of its For plaintiff the because upon burden required the to determine that Nelson case the the instruction wrong. elaborating upon In a sim- guilty positive of a defendant 163, 111 (2d) 342 Mo. S. W. instruction, Blunk v. Snider ilar are erroneous because that such instructions made manifest 165(7, 8), wrong”— “negligence positive is a premise that the false upon based whereas, wilfully committed;” á failure to exercise wrongful act, “a inattention, inadvertence, mеre act of unaccom- as a care—such due possesses potentialities wrongful sufficient to by any panied intent — negligence. constitute testimony of and facts record and circumstances much There - authorizing to, hereinafter) in this a defend- (referred part, case ant’s of proof. instruction on burden instant the upon by in the relied omits the features reversible error eases held cited) as respondent case, supra, the eases there (see Nelson well 561, 568(3), Co., (consult as Koebel v. Tieman & M. 337 Mo. others C. truth as to 523(2), discussing phrase the “the S. W. your negligence against remains in doubt charge the mind”). of defendant only alleged misstate- We have ruled hereinabove that the considering upon error ment of instruction was not law entirety. Respondent case, no and our search instruction as cites none, holding error. The has similar instructions reversible revealed trial the reasons the instruc- order for new does not state which Assignments respondent’s tion was considered erroneous. error against weight trial motion new because the verdict was for giving cautionary instructions other on the evidence support These appellant were not sustained. factors behalf of trial instruction erroneous for court did rule the conclusion cautionary discussion; for, so, the other instruc- under reason augmеnt alleged appellant would lecture tions behalf *8 they been, duty too have jury appellant its would the on to all not, have due inclination to considered erroneous. were We but, discretionary ruling record, from this it to a trial court’s defer exercising discretionary If not function. appears the court was sustaining authority instruction; the if not, ample there is against attack, any upheld are to like the at such instructions be time cоnsidering from affords, the evidence view- instant record instruction, justification of the an instance' wherein the point for be should sustained. instruction credibility the No. on Appellant’s
III. Instruction 9 was wit informing your material, jury after the “it is and, nesses so far as give duty weigh weight to it such to the value as ’’ have, stated, respect witnesses, the you to with to find and believe ‘1 you among things may . . . his or her consider demeanor "other you stand, and, . . . find and believe that a witness has on the you liberty disregard any are at to falsely to material fact as testified you given by which find and such witness be of the evidence . . .” to false lieve 458, 471, Danciger, 328 Mo. 41 S. W. Relying upon Jacobs a. 1237, 1245, A. L. R. the omission of 393(15), 77 the 389, (2d) “intentionally” “wilfully” in connection with qualifying word the-quoted portion last clause of in the the “testified” the word case an to be error. The Jacobs involved in- is asserted instruction uno, omnibus,” on based maxim struction “falsus falsus “wilfully” “intentionally” has that a witness held finriing rejection to fact essential of the a material falsely to sworn not testimony. instruction was Appellant’s whole such witness’ informing jury to scope limited based the maxim. Its testimony it found and believed liberty disregard that it was at necessity in- must, in all and of jury privileged be false. The issues, fact conflicting on there is essential stances wherein testimony of a part of such reject the or none or believe or whole true or false when the sаme to be given as it finds and believes witness testimony and facts and circum- light of all the considered 481, 468, Rogers, 326 Mo. Rockenstein v. in the ease. stances [See 379, 384, Horton, 337 Mo. 798(2); Dempsey v. (2d) 792, W. 31 S. in- case does not rule the 621, 623(4).] Jacobs 84 W. The self-evi- willing hold the obvious and issue; are not and we stant portion of the instruction' questioned proposition stated dent .in error. “his or her demeanor that the words is also made Complaint
b. to witnesses of the instruction aрplication limited the on the stand” testimony of a material testifying appellant as adduced in court and In a case where- was erroneous. deposition, the instruction witness in evidence deposition was read appear not but his plaintiff did material testimony of other witnesses on and conflicted they judges the sole told the were matters, instruction which appeared before credibility who “had of the several witnesses of the Co., Ry. L. & P. Hansberger v. Sedalia El. criticised them” was might plaintiff’s conclude because App. 82 Mo. appears to be Such matter open question. credibility The instruction in the than misdirection. rather nondirection one of materially presented the issue from the differed Hansberger case instruction was not limited in that the instant instant all “evi- “appeared” but embraced who scope to witnesses in its a common of the instruction embоdied portion questioned dence.” instruction; no and we jurors need about which proposition sense instruction, for the readily think understand jurors would *9 they to take into consideration issue, authorized were of this purposes instruction, in mentioned the wheth- all matters possible far as in so by deposition, but had not been person or in appeared the witness er passing upon demeanor on stand of the the opportunity afforded only by dеposition. adduced was whose of witnesses do, asserts error in the admission to privilged is as she Respondent, every on giving of and the each of certain not hereinbefore ruled: Briefly of the matters appellant. of behalf writing signature, narrative, in over her gave a Respondent IV. stated, among day happened. It other it on the occurrence of the “ me to fall.' not know what caused I ... do things: ... anything steps my and the were foоt on not catch . I did . . or obstruction that could have caused foreign any substance from free I slip, trip clearly me to or I stumble. could see where .... danger- going. . . . so I are steps was far as know the not testimony, any way.” witness, respondent’s ous or defective As a caught fragment to that her in- of part, was the effect she foot step fell; carpet; on the it was a tear in carpet rip the that the penetrated be- carpet; that, toe of her foot fabric of that the the the caught fell, carpet place fore she noticed the was worn at the she she that she not foot; stepped it; had noticed it before she onto her put it on-it; it, she when she her that she didn’t see noticed foot penetrate carpet. the felt her toe agree against admitting not respondent’s complaint
We do against It narrative evidence. contаined statements interest the impeach respondent as a The witness. clause “so and tended dangerous steps the are not . .” im- far as I know . tended to respondent we peach purported need discuss whether it “ knowledge any dangerous respondent’s extent of de- cover the or n steps condition of the as of the time of the narrative. fective” respondent V. behalf of court the the defined term “ordi- On nary jury; neg- and told thе care” “The omission of is care ligence Appellant’s that term used in In- as these instructions.” No. 5 to the if jury struction effect that the found re- ordinary spondent safety” ‘‘failed to use for her care own in cer- you find,” ., any, “if so particulars, tain then “such failure . . if negligence not, her part” by respondent did as contended would in attacking instruction, respondent but, said assume negligent, by respondent against as in her stated attack Instruc- jury tion to the Nо. submitted of respondent’s determination negligence; e., required i. a finding hypothesized of the fact respondent’s finding ordinary “failure use case” in connection finding as a condition to a that respondent therewith negligent. including respondent’s evidence, contradictory statements, sup- ported submission of the factual issues covered instruction. Respondent separates introductory
VI. clause of Instruction reading: No. court only “The instructs that the charge negligence you your will in arriving which consider at verdict carpet . whether not the . was in .,” . fact torn . . connecting its context and hy- with Instruction No. which pothesized constituting contributory negligence certain facts found, says contributory Instruction No. 6 negligence inferred the re- by telling jury they spondent If, need not consider that issue. suggests, respondent as clause is be read in connection with negligence No. 5 and Instruction cоnnection with the fact of a *10 is, any contributory carpet negligence torn issue of not, considered, readily (Instruction a would more reason No. 5 mak- ing obligation carpet) no mention of a torn that no upon rested re- spondent remedy any carpet tear in defendant’s and that said contributory negligence clause admission was had not been es- by any Reading tablished substantial evidence. Instruction No. 6 precludes as a рlaced upon by whole it respondent, construction contributory It negligence any because: made no reference to or du- ty part respondent. or exercise of on the It care carried an “and recognized duty also” It a upon clause. that rested appellant not permit by its carpet by to become unsafe or tear wear for use its remedy patrons condition, any, or torn the worn if if appel- knеw, known, lant or have could thereof in time to have remedied and, assuming respondent fell; same before the existence of wear tear, liability finding appellant conditioned knew, ordinary or in exercise known, care could have thereof in respondent time to have remedied same before fell.
Respondent’s complaints other are without merit. Her author- ities, supported by as her applicable insofar сontentions are author- assigned ity, error, error, hold the do not to be reversible error. Nos. Instructions not hereinbefore discussed, were of a and, cautionary expected, nature as is to be more or less abstract in of rules of their statements law. court trial exercised a dis- giving justify cretion in the instructions and-the record not does part. on our interference granting new trial is set
The order aside and the cause is re- directiоns reinstate the manded with verdict and enter Cooley CC., Westimes, thereon. judgment concur. foregoing opinion C.,
PER :(cid:127) —The adopted CURIAM Bohling, opinion judges as the of the court. All the concur. Rehearing. Motion for
On PER Respondent’s point rehearing in her motion for CURIAM: asserting there warranting was no evidence the submission of con- tributory negligence alleged based on lack due care “not watching step” “failing her going” to watch where she (ap- was pellant’s 5)No. appears Instruction not to have been specifically de- veloped opinion, although Consult, Opinion, ruled. Pars. IY Respondent descending stairway. Y. Appellant was ad- testimony respondent “looking straight duced ahead.” Re- signed spondent’s read, part: statement “The steps point at this lighted clearly I are could I going”; and, well see where was contradictory, respondent’s testify, while she did part: carpet worn”; “I noticed the that she had noticed or that particular spot stepped was worn before she down
32-2 my penetrate foot it, I felt the toe of “No, . I it; didn’t see spot put she noticed before had not this worn carpet”; she testimony, “No, I didn’t see it.” This viewed step; foot on her submitting justified said factual issues. standpoint, rehearing our attention to al- directs motion Kespondent’s motion, not to have been stated, leged errors may original they pre- If not be first so, submission.- assigned rehearing. a motion for sented motion overruled. Bailey, Appellant. S. W. 224.
The State Howard Two, Division March 1939.