Moll v. Springdale Park, Inc., 51291
| Citation | 395 S.W.2d 126 |
| Decision Date | 08 November 1965 |
| Docket Number | No. 2,No. 51291,51291,2 |
| Parties | Leo H. MOLL, Appellant, v. SPRINGDALE PARK, INC., a corporation, Respondent |
| Court | United States State Supreme Court of Missouri |
Sherman Landau, St. Louis, for appellant.
J. C. Jaeckel, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondent.
STOCKARD, Commissioner.
Plaintiff has appealed from an adverse judgment, entered pursuant to a unanimous jury verdict, in his action for damages in the amount of $65,000 allegedly resulting when he fell from a ladder leading to the 'high-dive tower' at the public swimming pool of defendant. A detailed statement of the facts is not essential to rule the issues presented on this appeal.
Plaintiff submitted his case to the jury on the negligence of defendant in permitting 'grease on the right rail or handhold near the top of said ladder' when the grease had been there for a sufficient time prior to plaintiff's fall for the defendant, in the exercise of due care, to have discovered such condition and to have removed it or to have warned plaintiff of its presence. At the request of defendant the trial court gave Instruction 10, a cautionary instruction pertaining to 'surmise, guesswork and speculation,' which, except for the first sentence, was identical, or substantially so, to the instruction approved in Landau v. St. Louis Public Service Company, Mo., 347 S.W.2d 870, 873, and McCormack v. St. Louis Public Service Company, Mo., 337 S.W.2d 918. The first sentence was as follows: 'The court instructs the jury that negligence is not in law presumed, but must be established by proof as explained in another instruction.'
Plaintiff asserts the instruction is erroneous because (1) 'it improperly places upon plaintiff the burden of proving his case 'beyond a reasonable doubt," (d) it 'improperly detracts from the weight of plaintiff's circumstantial evidence,' and (3) it 'presents an unfair and prejudicial argument against the plaintiff's cause of action.'
This point does not comply with Civil Rule 83.05(e), V.A.M.R., in that it does not set out why the instruction accomplishes any of the things asserted in the form of a conclusion. As worded, the point does not inform opposing counsel just what plaintiff's contentions really are and what he is required to answer. See Reifsteck v. Miller, Mo., 369 S.W.2d 229; and Domijan v. Harp, Mo., 340 S.W.2d 728. However, if in a liberal exercise of discretion we should say that we are able to discover plaintiff's contentions from the argument in his brief, none of the above contentions, as stated or as implemented by argument, were advanced at the time the instruction was given or in the motion for new trial. Plaintiff in effect admits this in his reply brief because he cites and relies on Hart v. Midkiff, Mo., 321 S.W.2d 500, wherein it was held that pursuant to Supreme Court Rule 3.23, now repealed and replaced, a general allegation of error with respect to instructions was sufficient. That rule no longer is in effect, and now in order to preserve for appellate review a challenge to an instruction, specific objections must be made either at the time of trial or in the motion for new trial. See Civil Rules 79.02 and 79.03, V.A.M.R. This was not done, and the contentions of appellant now advanced are not preserved for appellate review. Miller v. Gulf, Mobile & Ohio Railroad Company, Mo., 386 S.W.2d 97. In any event, the instruction was not erroneous. Plaintiff's argument is directed to the use of the word 'establish,' but in Morris v. E. I. Du Pont De Nemours & Co., 351 Mo. 479, 173 S.W.2d 39, 40, and Automobile Ins. Co. of Hartford v. J. C. Nichols Co. Mo.App., 309 S.W.2d 698, 700, the precise point was ruled adversely to plaintiff's contention. In addition, the phrase used in Instruction 10 is that 'negligence * * * must be established by proof as explained in another instruction,'...
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Wolfe v. Harms
...must be made either at the time of trial or in the motion for new trial. See Civil Rules 79.02 and 79.03, V.A.M.R.' Moll v. Springdale Park, Inc., Mo., 395 S.W.2d 126, 128(2, These appellants also complain of Instruction No. 18 which contained, among other things, directions and forms cover......
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State ex rel. State Highway Commission v. Heim
...complies with the rule nor preserves anything for review. Chambers v. Kansas City, Mo., 446 S.W.2d 833, 841(14); Moll v. Spring-dale Park, Inc., Mo., 395 S.W.2d 126, 128(1). The second point fails to state why it was error for the trial court to sustain respondents' objection to the argumen......
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Toenjes v. L. J. McNeary Const. Co.
...motion for a new trial. Accordingly, the objection was not preserved for review. Civil Rule 79.02, V.A.M.R.; Moll v. Springdale Park, Inc., Mo., 395 S.W.2d 126. The remaining assignments concern matters not likely to again occur in the event of a new trial, and therefore need not be For the......
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McKinley v. Vize
...on this appeal was never presented to the trial court, and is not preserved for appellate review. Rule 78.07; Moll v. Springdale Park, Inc., 395 S.W.2d 126 (Mo.1965). Appellant may not interpose one objection to the trial court and another on appeal. Negley B. Calvin Inc. v. Cornet, 427 S.W......