Eisenbarth v. Powell Bros. Truck Lines

• Citation: 161 S.W.2d 263
• Decision Date: 05 May 1942
• Docket Number: 37542
• Parties: EISENBARTH v. POWELL BROS. TRUCK LINES, Inc
• Court: United States State Supreme Court of Missouri

161 S.W.2d 263

EISENBARTH v. POWELL BROS. TRUCK LINES, Inc

No. 37542

Supreme Court of Missouri, Second Division

May 5, 1942

Rehearing Denied March 13, 1942.

Original Opinion of December 16, 1941, Reported at 161 S.W.2d 263.

OPINION

On Motion to Transfer to Court en Banc.

Per Curiam.

Appellant in its motion for rehearing, which was overruled on March 13 1942, earnestly contended that this court ignored a point made in the brief that plaintiff's instruction number 1 was erroneous. After the motion for rehearing was overruled appellant filed its motion to transfer the case to the court en banc. In this motion appellant again bitterly complained that we ignored the point with reference to instruction number one. Appellant in its original brief under point three of the heading, 'Assignment of Errors, Being Also Points and Authorities', made the following assignment of error 'The Court erred in submitting the case to the jury under the humanitarian doctrine (instruction I).' Such an assignment certainly does not preserve for review any alleged error with reference to instruction one. All that can be claimed under such an assignment is that the case should not have been submitted to a jury under the humanitarian doctrine. The assignment does not point out why it should not have been so submitted, whether for lack of evidence or because of a lack of pleading. But that assignment, coupled with assignment number two which reads, 'The Court erred in not sustaining the demurrer to the evidence', may sufficiently raise the question of the sufficiency of the evidence. We so considered it, and carefully examined the evidence and decided that the court did not err in submitting the case under the humanitarian doctrine. We call counsel's attention to the case of Scott v. Missouri Pac. R. Co., 333 Mo. 374, 62 S.W.2d 834, loc. cit. 840 (17, 18), where this court said, in speaking of rules governing the briefing of cases: 'Where, as in this case, the particular point relied on is not made in the 'assignment of errors' nor in the 'points and authorities,' it will not be noticed in the printed argument, but will be treated as abandoned because not properly presented for review under our rules. Moffett v. Butler Mfg. Co., Mo.Sup., 46 S.W.2d 869, 873; Aulgur v. Strodtman, 329 Mo. 738, 46 S.W.2d 172, 173; Burch v. Cleveland, C., C. & St. L. R. Co., 328 Mo. 59, 40 S.W.2d 688, 693.' We have not considered the correctness of instruction number one because it was not preserved for review.

Appellant in both motions also argued strenuously that this court in its opinion was in error in holding the evidence justified a submission under the humanitarian doctrine, asserting in particular that the defendant's...