Bellissime v. M'Coy

• Decision Date: 31 May 1823
• Citation: 1 Mo. 318
• Parties: BELLISSIME v. M'COY.
• Court: Missouri Supreme Court

1 Mo. 318

BELLISSIME

v.M'COY.

Supreme Court of Missouri.

May Term, 1823.

Instruction, to warrant reversal, must have been prejudicial.

APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY.

MCGIRK, C. J.

This was an action for use and occupation. Verdict and judgment in the Circuit Court for M'Coy, defendant. The cause is brought here by appeal. Several objections are made by the plaintiff's counsel, in the court below, to the admission of evidence on behalf of defendant. None of the objections are tenable in law. The plaintiff also prays several sets of instructions from the court, which are refused. To decide whether these instructions refused, were refused correctly, is unnecessary.

This rule of law is, that if a party considers himself injured by the refusal of instruction, he must show that he had a proper state of facts proved, to warrant him to claim the instruction prayed for, otherwise, the court cannot possibly see that he is injured. If a party demands of the court instructions on points of law, and it is refused, it may be that no state of facts existed to warrant the prayer; and then the court do right to refuse it. And if, on the other hand, the court instruct the jury, and either party conceive it to be error, he who seeks to reverse for the error, must show the evidence on which the instruction was given, so that this court can see wherein the error consists; and if this be not shown, this court will and must suppose the court below did right, because it cannot see otherwise.^(a) In this case, the plaintiff seeks to reverse the judgment against him, because, he says, the court erred against him with respect to the defendant's defense. It is not enough that the party should show there was error against him, but he must also show it was to his prejudice, or might have been so, by being of a nature to mislead the jury, &c. Here the party has not shown that he had a prima facie case in his favor; he has not shown any evidence existed in his favor, to warrant him in claiming an instruction with regard to his title. The verdict of the jury is against him; he has not shown that this result was effected because the court refused to declare the law on his title, as made out at the trial, for he has shown no title at all. If, then, the plaintiff did not show himself in a situation to be entitled to recover, he has not shown himself in a situation to be injured. We cannot perceive what relation the defendant's pretended defense might have had to the...