*1 1925. Manthey Contracting Co. Kellerman no fol- longer like the he overruled and Childs, should lowed. i for
Our writ, quashed, should he however, Let opinion. son in other assigned paragraphs concur; All Walk quashed. order be that our writ he er, except in result all J., Paragraph of the opinion III.
JOSEPH MANTHEY KELLERMAN CONTRAC
TING Appellant. COMPANY, One,
Division December 1925. Exceptions. requires APPEAL: Bill 1. statute all during party either trial of cause to be included appeal exceptions. requirement applies one bill of And this to an granting appeal trial, from in a cause an order a new and to an assigned appeal granted upon grounds is wherein some motion a new for trial. Granting Order -: From New Trial: Other Grounds Considered. 2. appeal trial, appellate granting On from an an order not sustained on court will reverse the order can be motion, ground assigned though in the sustainable on even not specified grounds of record the trial court. Exception: -: -:' Proved Motion. -: In order appellate respondent in the court the benefit err- have assigned assigned in his new trial but not ors motion, grounds sustaining must the record trial court rulings upon excepted he the time show that assignments predicated A of errors. statement motion he those respondent excepted to the for a new trial the motion except. did that he instructions is not evidence of certain preserved in the bill of ex- must be shown given. ceptions as taken when the instructions Exceptions. Bill of Burden to Show Other Grounds: -: -: upon grounds of the motion record shows the When the upon appellant, trial, granted the burden is a new error show the new an grounds. ruling upon of the order But the effect those indulged presumption assigned, grounds overrule other MISSOURI, SUPREME COURT OP v. KeUerman contrary, ruling respondent until shows to but but the burden is him to make the can, show, it is him to if he from the bill made by appellant, ordering a new the’action of the trial *2 speci- right, though grounds trial was even not sustainable on the order, require appellant in- in the and he has the fied exceptions much as will enable clude his bill of so of the record in appellate whether the action of the trial the court to determine grounds on in the motion can be sustained stated court for a new trial. Amendment: Nunc Pro A OF EXCEPTIONS: Tunc BILL Order... exceptions duly the of when filed in a case becomes a bill of amendatory subject subsequently record, operation of restrictions, motions, same extent and under the same other, parts be made the record. But such amendments cannot of memory merely subsequent resting matters in the term at a judge, parol proof by nor on others. Where the bill trial exceptions approved and filed shows no saved to instructions, assigned giving of certain as errors motion subsequent term, trial, for, a a the court cannot at make newa amending excep- pro the bill such tuno order so as to show rmno itself, saved, something appears in in tiqns unless the bill were ’ entries, minutes, stenographer’s judge’s the clerk’s notes or paper a basis such an the case which will afford some
order. Exceptions: Motion to Amend Overruled: Sub- Omission -:6. Respondent. stituting Filed New Bill After verdict defend- trial, alleging ant, a motion for a new error filed giving for defendant. was sus- five instructions erroneous, ground that one of the instructions was on tained appealed, granting a new trial defendant an order from exceptions, approved bill of which set forth the instruc- his filed' any exception given, not show that thereto was saved. but did tions subsequent Thereupon, to the term at which the new a term require granted, plaintiff be filed a motion to were saved to the as to show so amended allegation basing instructions, motion on an notes of reported proceedings reporter who of the trial con- official motion, ap- exceptions. denied the The court and no said tained overruling days the order it. But five later peal complete showing presented a such ex- filed, judge approved it ceptions, and ordered it the trial presented and is here as the true bill of ex- abstracted been it has is asked ceptions and this to substitute it for approved and filed in connection the bill Manthey v. Kellerman Held, appeal granting plaintiff trial. with from the new filing exceptions was- the allowance previously unauthorized, the bill and it cannot be substituted for question approved by appellant, in- said and the whether and filed grounds for structions erroneous and were valid only considered, be can bill that new trial be since the cannot were saved. show thereto considered does not Granting: of Evidence: Mis- TRIAL: Grounds for Admission
NEW7. sustaining plaintiff’s motion for take: Memorandum. An order stated that the sustained on the therein evidence, upheld incompetent admitting cannot erred in was excluded. shows that the evidence where the record “incompetent ref- a clear evidence” be identified And the judge opinion in the order to memorandum erence specified. particular evidence is Injury: Negligence: Trial. Mere New Proved 8. INSTRUCTION: plaintiff was that “the mere fact that effect An instruction injured neg- guilty evidence that defendant itself no *3 proof upon plaintiff prove ligence” is to but “the burden of greater weight in the case that the defend- of all credible evidence plaintiff complains negligence guilty of which an act of was ant you instructions, in and unless he is submitted to these which error, defendant,” proved your not must be for the is verdict has so plaintiff injuries were fractures and bruises sustained where the by opening falling through in roof which he was him lay upon striking helping the floor timbers construct and such is And instruction not below. a new after verdict for defendant. p; Appeal Error, Juris-Cye. J., 29, Corpus 3 C. Section References: J., 802, 895, 843, 953, 27; 52; p. 43; p. 4 316, Section n. n. C. n. n. Section p. 89, 17; 67; 1683, 84, 2, 61; p. 1674,p. n. Section Section n. Section 1827,p. 35, 1935, 314, 13; 1937, p. 317, p. 225, 49; n. Section n. n. Section 27; 550, 20; 2360, p. 552, 2356, p. 37, 38; 36, n. Section n. Section p. 560, 43; 2366, New; 556, 2364, p. n. 61 Section Section n. Section 785, 91, Negligence, 2736, p. 9; 91 New. 29 2557, p. n. n. Section p. Cyc. n. City Circuit Appeal Louis Court. —Rom. Victor from St. Judge. Falkenhainer, R. directions). (with and remanded
Reversed Charles Lichtenstadt, E. Morrow E.W. M. L. appellant. Moser plaintiff’s sustaining
(1) motion for g-rounds in the order of the stated on the 150 COURT OF MISSOURI, Contracting Co. necessarily grounds. other overrules said motion as to all only appellant is show burden on grounds upon sustained do was support Mfg. 252 W. it. Arida Lumber Co., S. Co. v. 966; 634; Krosten ex rel. v. Hines, v. State (2) Thomas, 245 The court did not err Mo. admitting by plain evidence made settlement Insulating Company, (a) tiff with & Materials objection, (b) This evidence went in without There was no evidence there before court that writing paper in reference to the settlement. The plaintiff’s copy statement of counsel that he had a (3) given by not evidence. Instruction 5, request court at defendant, is not erroneous. injured fact The mere no itself guilty negligence. evidence that the defendant was 411; v. 249 Blanton Dold, Moss S. W. Wells, nothing 74. There was the character of injury which would link a chain of circumstances tending prove negligence with which the de charged. The fendant facts of this case are in no Railway respects similar to Orris v. Co., 279 1.Mo. (4) Appellant See Moss Wells, S. W. 411. objects respondents said abstract of record on the grounds: (a) following appellant’s Because bill all which included herein, during the trial of said cause and the issue thereof jury, signed, allowed, before the sealed and filed and made a record in said cause at the June provisions 1923, of said Under term, court. *4 provided exceptions 1460, 1919, Sec. R. S. it is that all during the tri 1 of a or cause issued before the jury k shall same mbraced in the same bill of ex -- ceptions, jurisdiction authority and the u no has exceptions allow but Dill to on of as matters oc curring during the trial of a cause and before same jury, respondent right and has no bill ex of except ceptions exceptions appell- those contained in the n exceptions, alleged exceptions lant’s bill of and the bill of 151 1925. App. Ry. Kline 575; void. 94 Mo. Cloak Co., Atchison v. (b) plaintiff. not did Co. v. Mo. 493. 293 Morris, judge circuit secure the certificate of of exceptions allowed could not be that his bill of provided by statute, filed within the time plaintiff case to enable court did not continue this exceptions, R. 1460, a bill and under Sec. S. to file separate right file has a even 1919, exceptions, expired before the time had bill of alleged and filed. R. S. allowed Phillips, v. W. sec. 186 1460; Planters Bank S. 1919, (c) Bailey, judge 605. State 181 S. W. 752; v. signed, having allowed, sealed, of the circuit part exceptions, made a of the record a bill respect allowing jurisdiction exhausted his signing not therefore a bill and could sign or a bill an additional allow in said cause. the. Ry. App. 94 1460; Atchison v. Mo. Co., R. sec. S. 293 493. v. Mo. Morris, Kline 575; Cloak Co. respondent. Douglas
W.
H.
(1)
An
not lie from
will
the refusal of
appellant’s
trial court to sustain
motion to set aside
allowing
filing
action in
and vacate
court’s
re-
exceptions.
spondent’s
R.
1469;
sec.
S.
App.
Lyons
Rollinson,
v.
109 Mo.
State
68;
ex rel v.
(2) Respondent
152 COURT OF MISSOURI, they Contracting
Man v. Kellerman Co. (b) adopted by This rule the court to relieve the ascertaining court from the labor tbe truth of the and can be invoked the it defendant, only, (c) If should attempt to establish a rule of as contended law defendant, be null rel. would and void. State ex v. (5) giving Thomas, 245 65. The court erred request Instruction 5 at the defendant, which told jury injured “that the mere fact guilty inwas itself no evidence that defendant any negligence.” Railroad, Orris v. 279 Mo. Zeis 10; Brewing v. Co., 653; 249 Wells, Moss S. W. Littig Heating 411; Urbauer-Atwood Co., 292 Mo. foregoing LINDSAY, C. In the cause here for de- termination, there proceeding is involved the parties, between the same numbered 25777, as a matter subsequent incidental By agreement this cause. proceeding and order the later has been consolidated with hearing this for and determination. The relation of the questions two is such that the facts, and the raised in proceeding the incidental preliminary are made matters appeal. to the determination of this personal injuries, This is suit for wherein jury returned a verdict in favor of the defendant. The trial court sustained motion for a new appealed and defendant from the order. In his a new trial, as shown excep- defendant’s bill of plaintiff assigned among tions, things, as errors, other incompetent the admission of evidence for defendant, giving for defendant of instructions 5, numbered 7, 8 (the admission of which mo- objected recited) plaintiff tion and saved his at the time.
set forth instructions, those but did not show by plaintiff they given. saved time The trial court in its a new trial admitting stated that it was for error committed in in- competent evidence defend defendant, because also filed Instruction erroneous. ant’s *6 order, at referred in memorandum, the time the exceptions, enlarging and shown in the somewhat explaining action further his- for the and reasons granted and the trial taken. The cause was heard new by Judge presiding 4 of in No. Falkenhainer, Division City of St. Louis. The Circuit Court February made 1922. 21, a new was appeal day, taken on The defendant’s and there was appeal in was in court. after, time, due docketed exceptions July bill of above On defendant’s 19, 1923, approved writing, by plain mentioned, in counsel signed by Judge allowed tiff, Falkenhainer, and Judge presiding judge in No. Ittner then as Division 4. placed upon The cause was the docket of the' October in Division of this and set for term, 1923, hearing One January The ón 5, 1924. defendant’s abstract of exceptions record December The bill of 3, was filed fully in allowed to defendant is set forth filed defendant. abstract plaintiff 24, December in tne cir- 1923,
On filed praying pro for a order, cuit his nunc tunc exceptions, bill of to make to correct defendant’s so as excepted plaintiff giving of in- it show that 7, defendant, for the 5, 6, 8, numbered structions exceptions reporter alleging the official had noted his exceptions bill of made, from which the *7 allowing plain- ant his motion to vacate the order exceptions, pleading of tiff’s bill his motion the terms City of Rule 37 of the Circuit Court Louis, of St. concerning exceptions the manner in of which bills opposite party, to be and the manner served alleging of their violation of the allowance, rule plaintiff’s allowing plain- counsel, and the court, showing bill and other that allowance matters, tiff’s of bill was unauthorized. Defendant’s motion to va- appealed or- cate was and defendant overruled, perfected overruling appeal, der motion and proceeding exceptions bill and filed his of skele- proceedings begin- setting had, ton ning forth all the form, plaintiff’s pro with motion for nunc tunc order, exceptions plaintiff’s of bill followed the allowance pro- calling copying of the matter and the therein, ceedings subsequent calling incorpora- thereto, original Pending tion therein of bill. defendant’s exceptions in this inci- allowance of defendant’s proceeding, in chief continued dental the cause parties, by stipulation 1924, term, October give opportunity to have second al- defendant overruling appeal order from the lowed. Defendant’s y. Kellerman vacate the allowance of motion to Ms ap- No. 25777. docketed as second This peal advanced, was consolidated appeal granting new trial, from the order with the pertaining to both heard and all matters submitted to- joint gether for determination. question
The to be is ultimate determined whether granting a shall new trial be affirmed or re- path toward the conclusion versed. In the piled up question there have been the succes- layers of bills of sive orders and BillofExceptions. attempt questions raised as in the thereon; “lay high giants mountain Pelion on of the fabled appeal statutory top The is of Ossa.” making filing origin, bills purpose governed by of the statute is to statute. is party during require either all taken in one bill. “The law be included now trial of a cause to exceptions.” [Dougherty only one bill of allows 257; Railroad, 31 Mo. l. c. Atchison v. Whitehead, App. App. 668.] Co., Pace Shoe
572; closing sentence of Section Revised Stat during “All taken as follows: utes jury or issue before the same the same trial of a cause exceptions.” in the same bill of be embraced This shall appeal provision applies in an from an order instant wherein new grounds assigned granted upon some of the Necessarily must error in motion. against party the order is whom made. *8 Thereupon appellate court will not the rule is that the grant judgment of the the order reverse upon any ground ing of if be sustained a it can trial, upon grounds though the not even sustainable motion, the Gloyd, specified [Chandler trial court. v. of record the Bradley 22; 176 Quade, Emmons v. Mo. v. Mo. 394; 217 ] Reppell, 118 Mo. Steele, 133 Hewitt v. 560; Mo. 463. appel respondent may in have the that the But, assigned errors his mo- benefit of the court the late MISSOURI, 156 COURT OP Mantbey specified by grounds the trial court as but not
lion sustaining the record must show that re motion, the rulings, excepted upon spondent at the time to the predicated assign trial, those in motion for new bis Tbe statement the motion as of fact, of error. ments excepted the of instruction at thing given, is evidence of the the time not stated. 31 257.] Mo. [Dougherty Whitehead, v. preserved exceptions further thereto
The motion progress and if trial, in the of the not so saved, fore saved they respondent sustaining avail are of no the ac upon grounds of tion of the trial bis motion specified [Green in the order. the trial court v. not Bradley l. 30; 211 Mo. c. Assn., Railroad v. Terminal 560.] the record Becker, 296 Mo. l. c. When discloses grounds granted ap a new the burden is court pellant ruling upon grounds those error to show (Ittner Royar, Hughes, l. 688; 133 Mo. c. Stoner v. grounds 451); therein, other the effect but, 200 presumption and the them, ruling to overrule is the order is right, indulged until re that the court’s contrary. spondent [Kersten v. Hines, shows the 245Mo. 1. 74.] c. Thomas, c. ex rel. v. 634; Mo. 1. State respondent Upon burden is latter, can, but to show be make the bill appellant, made making right, the order was action the trial grounds specified though upon even not sustainable respondent in such a has the order. required appellant to include in bis have the case to record will enable much of the so appellate the action court to determine whether grounds upon any can be trial court sustained Thomas, ex rel. v. [State new trial. the motion for a 204; 183 Mo. Jarrott, rel. v. State ex 65;Mo. and see the force of 490.] this, Gibson, rel. State ex emphasized by purpose virtue statute, and of the exceptions, when well settled, of the rule *9 157 Manthey Contracting v. Co. Kellerman part duly becomes a of the case, record, in a and is filed subject consequently operation appropriate in amendatory extent, same motions, un cases parts as other same restrictions record. der the Railway, 222; Baker 122 Darrier, 58 Mo. [Darrier v. Railway, Howell, 307; 117 Mo. Ross v. Mo. 533; State Burney, App. Osagera 271; 141 390; Mo. West v. 345.] the same But, l. c. authori v. Schaff, subsequent be made cannot at a ties such amendments merely memory resting in the matters term, parol proof by Something judge, others. must nor on judge’s appear in the minutes, itself or paper stenographer’s or some entries, clerk’s notes pro an order form the basis for nunc tunc. spe- from a No. 25777 is The defendant’s judgment in cause—the cial order after final overruling order - allowing plain the order motion to vacate exceptions. bill of The filed tiff’s proceeding forth mo- in that sets pro order filed tion for the tunc December nunc exceptions upon bill of amendment defendant’s appeal. of that motion was that defendant’s was not a true correct defendant’s bill ob- failed that, show record of jections of de- 8, and 9 made 5, 6, 7, instructions numbered fendant’s ‘‘ alleged they given, it further time at the official reported reporter proceedings at the who whose notes said bill of ex- trial in cause and said ceptions noted in his notes and his *10 exceptions
motion
overruled the
was
hill of
containing
was
filed,
the
the
particular
only
defendant’s said instructions —the
sought
matter
to be introduced
as
correction or
amendment of
bill under
defendant’s
the
motion.
authority
filing
the
for
allowance
his bill
cites
ex rel.
State
Thomas,
Bradley
Becker,
In ex Thomas, State rel. v. the was compel judge sign mandamus to the trial a bill of by relator in tendered a certain cause, where- in a motion for a new trial been sustained, and‘ appealing. relator was so proceedings was restricted to so much tendered the ground specified upon as related to which the trial the motion for a court sustained trial, new and as to the the bill matter covered it was conceded to be true. judge refusing The trial allow the bill stated “not because the refused, that he recitations therein proceedings far as the not true as are are recited, but objects ground because on that he proceedings fully to have entitled set forth in appellate court order that determine whether granting a new should not the for some reason be sustained given
not court, even if not ground given by on court in sustaining sustained recited in It was relator’s the same.” alternative writ n willing that the relator was defendant, that the de- might expense, insert fendant’s additional recitations might have allowed the bill, additional bill. upon ground question denied, was The writ appellate merely decision for not appealed right the order whether for the but whether it was reason stated upon grounds new trial was further asked, since a TEEM, Mantttey
litigant favor, from an order could not bring appellant it alone could before followed that the appellate necessary record whatever ruling in a new trial whether decide the court’s appellant must held that the stand, should and it was it so right it held that was-the do. At the same time, party the motion for a new successful discloses the the final record to “see to sustain the result of the matters on he relies to citing ruling.” page Hughes, Ittner v. [See circuit 688.] ex the decision State rel. v. But, 1.Mo. c. holding authority success Thomas, is party for a trial can have a ful exceptions, instance, in this be a would which, appellant’s bill substitute appellant’s *11 the amendment of he has moved for after per has been has denied, motion thereto he bill his stand. order of denial mitted supra, Bradley there was before this Becker, In upon granting appeal an an new a considering question of a certain instruction trial respondent in that insisted had been appellant, erroneously, given, but to the for exception by no record showed re of which the given. It spondent held time it was was that it at the being considered it not an reason, not be could instruction specified by grant court in the order the trial page ing 560: “If, at said, fact, new trial. It was a respondent exception, could have secured there was incorporation filed its separate appellant, perhaps, have a could or This court has said own behalf. either its things [State done. Thomas, ex rel. v. these 65.]” It obvious that was what thus said 245 appeal, question at issue was attempted respondent there had not because the appellant’s nor to file one of bill, his own. correct the SUPREME COURT OP MISSOURI, opinion We are of the under circumstances shown in the instant filing the allowance and plaintiff’s (respondent’s) was unau- thorized. question,
We take next whether the order a shall be sustained. The injured employed the time he was was the In- sulating Company, roofing company & Materials a engaged which building being was to make the aof roof city Louis. St. It was ^BsfaBcted Facts case. two-story building. story a The second high ceiling, ceiling and this was of steel- roofing, paper and-concrete construction. The pitch, being laid tar or the concrete. De- Contracting Company, Kellerman' fendant, was the and had work, contractor for concrete laid the con- forming ceiling, forming crete also the base laying on roof material. for the There were through ceiling, openings one two for an elevator was about ten which twelve feet in shaft, size, and skylight, the other dimensions of which clearly appear. openings These do not were four or apart. plain- for the Materials work in five feet which up employed drawn tiff from the basement man floor, stationed there or for that rope running pulley purpose, means of a over a which suspended from a hoist which beam, extended over partly opening. the elevator shaft over One end beam, twelve or hoist fourteen of this feet long, on the concrete. The other end, rested elevated *12 forty-five degrees, angle of about was at an nailed to upright stood standard which concrete. extended east and west. beam A wooden The hoist brace, long, was feet nailed to the or fourteen twelve hoist beam point standard, and the other near end at a of this extending northward, rested on the brace, concrete. The and the hoist beam the lower of end lower end of the nailed could not be or roof, wooden brace building itself. that account, On near or they Man
at the foot of the hoist beam where rested piece concrete there nailed to the beam a was cross two-by-four long, timber about four feet and across two-by-four piece roofing, this paper, were laid four rolls thirty long
each about inches and one foot in way, diameter. In a similar board was nailed foot of the brace extended from wooden near the upright- standard to the and concrete, this across board roofing paper. testimony laid three rolls of plaintiff customary for was that this was manner constructing a hoist, for use in that kind of work, under and that have circumstances been described. purpose holding supporting For the concrete during ceiling required in this and roof, the time to harden and become set, there were constructed spoken maintained under about it what was or work” forms “false of timber, which could after the be removed concrete was set. The removal accomplished much of false this been work be- plaintiff’s day injury. fore the There some con- pulled flict as whether the remainder was down immediately before and concurrent with plaintiff’s in- jury. testimony claim But, was, him tends to that a show, mass of the false work ceiling hoisting rope near under where hung, warning pulled or without thrown down employees, at the time defendant’s when a bucket of up pitch plaintiff about to be drawn and others throwing pulling that the or roof; down of the jar great false-work construction caused a or vibration building; piece pieces that a or of the false work rope, in contact with the hoist came and as a result, the up hoist beam flew end struck skylight opening, back as he near was work causing through opening; planks him fall pieces of the forms or false work fell over and the elevator shaft at across floor second building; severely fell these and was injured. plaintiff’s theory As has been indicated, Sup.
311 Mo. —11. *13 COURT OF MISSOURI, Contracting
Manthey Co. constructed had been hoist, which Company, Insulating & Materials constructed displacement customary and that manner injury plaintiff consequent to were hoist beam taking work; down the false the careless caused that the false work defendant’s contention while day question at a con on been taken down plaintiff’s previous fall, siderable interval displacement beam not due to the the hoist to careless timbers, but was due fall the false-work hoisting apparatus and failure of the construction place; bags it in properly secure that sand to brace and immovable, instead of cement which were or sacks of easily, roofing paper which roll should have rolls of In his the cross braces. suit hold down been used to plaintiff originally brought made both the In Company sulating & and Kellerman Materials Con Company tracting defendants. petition, put in evidence on the first building apparatus, describing and hoist
after part charged negligence on the fall, Company negligently Contracting wreck- Kellerman ing building, toas shake the so the false work ordinary care warn the to exercise failure charged work, the false intention to wreck of its Insulating negligence & Materials on ordinary failing exercise care to ballast Company in using paper hoist beam in rolls of braces the cross purpose. Later dismissed as to the for Insulating Company, amended Materials & alleging beam that the hoist con- petition, therein customary and that his fall and manner, structed negligence injuries due to the of this de- resultant tearing the false work without notice down fendant the timbers to fall plaintiff, cause floor as'to so striking rope passed, catching through being rope time when material was hoisted aat jerk the as to hoist beam force, with such roof, to through plain- it to hole in the and cause strike roof v. KeUerman heavy tiff, and dne also fall of timbers building, jar the false *14 in a manner work such as to apparatus way hoisting give and cause the to and fall through the hole in the roof. out
The defendant filed motion to strike petition being change amended of the cause of entire departure action, and a cause action. and different The term and defendant filed its overruled, exceptions. petition, The answer the amended general alleged a after denial, had sued Insulating Company, claiming defendant and & Materials joint against a cause action and while his cause both, compounded pending had and settled dis- with and charged Insulating Company upon & materials said company cause had action, and received from that settlement sum of $1500, and had received from company compensation injuries any full for what, if pleaded he had received, reason thereof fully .discharged released and Keller- Contracting' Company any liability him man alleged cause on the of action sued and was not against anything to recover entitled the defendant. reply general denial. The order the court a new trial entered of record is as follows: having duly
“The heard and considered plaintiff’s motion for a new trial heretofore filed and herein,
submitted doth order that said motion hereby and the same is sustained on ground admitting that the court erred in- OrderGraningNewTrial. competent evidence, the further that the court erred in Instruction 5 of defendant. is behalf It therefore ordered the court judgment that the verdict and rendered favor day defendant on the 17th of November, 1921, be and the hereby set same aside and vacated. Memorandum filed.”
The memorandum filed refers evidence in question, and is as follows: MISSOURI, OF COURT Contracting Co.
' ‘ permitting feels that it erred in counsel regard plaintiff questions in to a ask for defendant to Taking former the Grimm settlement defendant. with sustaining motion, basis case, I S. W. point issue, the last word on the feel that it is in not the quirmg now feels that erred re Memorandum. defendant to introduce written Company agreement Materials on the with writing should been rule. This intro have best-evidence wanted that matter and, submitted duced if defendant sue, not to then under it, to be covenant found competent, any ruling was not the Grimm ruling in the case not com Grimm reference petent, reference that matter should have incompetent. feel, This, ruled out as I the error been *15 although requires and, the case to be retried the in altogether proper, I feel not that it is not are structions necessary infirmities. Instruction 5 is bad, the to state injury I the courts now believe is a because hold jury have a which the to consider circumstance negligence. determining For the above reason, the plaintiff for a new trial is sustained.” motion of pro- 1919, Revised Statutes it is 1454, Section Under allowing “every specify a new trial shall vided ground grounds on which said new the trial of record Hays Hogan, granted.” the 1, In trial court specify affirmatively granting did new at the time but made state- order, his some reasons urged, concerning grounds being but not those ments granted. page said, It was order was at by spread required the statute to matter be “that 11, exceptions, preserved in a bill of cannot be record required in bill of proper;” to be served versa, vice by preserved but record it cannot be might same be considered as that the held nevertheless light “throwing circuit court the view the took of progress during and the view he trial, the passing the case a new motion for trial.”’ on the it when had of during proceedings read in trial were VoL they
Man light what the court said the new trial. ground 283 Mo. l. c. Hines, In Kersten v. specified by one it “con which was the court was said was court,” firmed a memorandum light upon view memorandum this court said “throws took of circuit court the matter.” specifies grounds, two instant the order In the case express therein, far as done, reference as incorporates expressed in the memorandum. views grounds mentioned in the order „ , , , ,. , . . Admission incompetent testi- are, admission of Mistake, Evidence: mony, 5. That Instruction further on. Plaintiff’s will be considered instruction the order cannot be sustained concedes that counsel objectionable testimony was admit- says “the record discloses he ted, for, brief, erroneously held admitted evidence which granted a the court which error and for objection to it in fact excluded objection This evidence and the trial.” plaintiff: appear examination of in the re-cross question. you forgot one When to ask I “Q. Insulating Company? Materials you with the & settled May A. 9th. they pay you? A. Fifteen much did How
“Q. dollars. hundred settling you that that was a understand
“Q. Well, they concerned. far suit as *16 object a moment. to that Just I Douglass: “Me. parties signed between these was the contract because nothing it has to do with about he understood what it was. what Objection sustained.- “The Coubi: please, people your these If Honor “Me. Mobbow: sign paper that will us—we are in and a bind come
can’t responsible it, and I have now I claim. your understanding was—if that is ask what him understanding. COURT OF MISSOURI, v. KeUerman I made that Douglass: he settlement; don’t “Mr. anything
know about it. objection. I will sustain the “The Court: ruling action and “To which of the court defendant duly excepted -then there its- counsel and still ex- cepts. prove by : I will offer to this witness, Morrow “Mr. please, your Honor understanding that it was that discharge
he Insulating was to settle the defendant, Company, & Materials and that fifteen this hundred dol- payment lars was of that settlement. object I to that —the Douglass: offer—be- “Mr. paper
cause the is best evidence and shows what the parties understanding copy was and I have a it and Mr. Morrow have it. objection.” I will sustain the
“The Court: Under that situation the order cannot be sustained ground specified emphasized by and most court. ruling
Under the have we heretofore indicated, the only review instruction here for is Instruction 6, which is ás follows: jury
“The court instructs the the mere fact injured is in itself no evi- Correct guilty neg- dence instruction. ligence. proof The burden of prove greater weight plaintiff of all the credible guilty evidence in the case that the defendant an plaintiff complains negligence, act which and which you is submitted to in these and unless instructions, he proven your has verdict must for the defendant.” so urged giving It that the instruction Railway error, Co., Orris Mo. . injury spark In is cited that case the was caused a locomotive en out of smoke stack of flew eye gine' penetrated plaintiff. neg ligence engine operating prop without consisted in equipment. spark arresting It er was held that -the ques- one here instruction similar to the *17 1925. Vol. County ex rel. Herman v. Court.
State the that “tak- error. tion, was It held very injury ing would the character of the facts, all the tending show circumstances in the claim of link spark negligence.” That fact arrester, defective ordinarily out the rule took instruction was held applicable character. In this case of like to instructions injuries fractures and bruises were the through falling from the roof sustained him striking lay opening, timbers opening in floor. floor and across the that next below injuries nothing them- character of There was negligence on the tended to show selves which holding in On Orris account, the defendant. particular case, facts founded ordinary applica- distinguishing rule, is not it from the bring it the rul- ble case within here. facts Following ing 411. S. Wells, made in Moss v. 249 W. opinion reasoning in that case are of the decision we sustaining not error of Instruction the order a new trial. been has said
It follows what cause remanded that the ver and the aside, should be set may Seddon, concurs. C., dict be re-instated. foregoing opinion of Lind-
PER CURIAM: The adopted opinion of Court in Division One say, C., Walker, Otto, Atwood Blair, C, J., JJ., in Banc. Ragland, JJ., White dissent. concur; Graves, An HERMAN, Infant, ex rel. CORNEAL THE STATE Friend, Her Next v. COUN RENARD, JOSEPH TY OF ST. LOUIS COUNTY. COURT Banc,
In December Upon Own If Court’s Motion. the writ MANDAMUS: Dismissal: awarded, improperly face that it was its shows on mandamus it, discretion, dismiss and refuse of its the exercise notes copy had been failure to same the bill. but there stipula- parties 3, 1923, filed here their December On April term, of the cause to the the continuance tion for pendency reciting a reason the of the said mo- 1924, pro order, nunc cause on tion for a tunc plaintiff’s accordingly motion for continued. pro next, tunc order was overruled. nunc presented counsel for defendant 1924, 6, on March complete exceptions. plaintiff’s bill, This was a bill of all evi- It insertion of form. called for skeleton set in defendant’s dence was contained COURT OF MISSOURI, y. Kellerman by- instructions, and forth defendant’s made giving time, in- of defendant’s 6, 7, 8, structions numbered It showed the appeal, motion for defendant’s allowance of defendant’s bill called defendant’s complete appended bill. The certificate recited that inasmuch as his appear to the of said instructions did not of rec- ord, the bill was allowed order that such might presented be made a appellate of the record so as to be court. Plaintiff’s bill no reference made pro to the motion for a nunc order. This bill tunc signed by Judge signed Falkenhainer, and and allowed Judge presiding then Division No. on4, Grimm, March 1924. Plaintiff abstract, has here objections defendant has filed thereto. Next, defend-
Notes
made has notes plaintiff to said instruc- above contain the copied made a into was not tions exceptions.” by defendant that this mo- shows The abstract that on March 3, considered, heard and tion the court order record. 1924, it was overruled respect steps no farther record shows motion, became final order. The motion. issue tendered OF MISSOURI, SUPREME COURT overruling The action of the days But, is not here for five review. after the