Palmer v. Shaw Transfer Co.

• Citation: 209 S.W. 882
• Decision Date: 01 March 1919
• Docket Number: No. 19856.,19856.
• Parties: PALMER v. SHAW TRANSFER CO.
• Court: United States State Supreme Court of Missouri

209 S.W. 882

PALMER v. SHAW TRANSFER CO.

No. 19856.

Supreme Court of Missouri, Division No. 1.

March 1, 1919.

Error to Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by Lee Roy Palmer against the Shaw Transfer Company. To review judgment for defendant, plaintiff brings error. Affirmed.

Bert S. Kimbrell and W. W. Calvin, both of Kansas City, for plaintiff in error.

Ingraham, Guthrie & Durham and Hale Routs, all of Kansas City, for defendant in error.

BLAIR, P. J.

The petition alleges appellant was a passenger in one of respondent's cabs and was unlawfully assaulted by respondent's driver. The verdict and judgment were for respondent. The only error assigned relates to an instruction given.

The abstract of the bill of exceptions contains neither the evidence nor any statement of its tendency. It merely recites that "a jury was duly sworn and impaneled, and evidence heard on behalf of plaintiff and defendant."

A condition precedent to reversal is an affirmative showing of error. One phase of the instruction deals with the right of respondent's driver to repel an assault by appellant. It is said the instruction: (1) Assumes the driver used no excessive force; and (2) that it is outside the issues. Both these criticisms might be conceded to be true, and yet cause for reversal does not appear. It is well settled that: (1) The assumption in an instruction of a conceded fact is not error; and (2) that one may not complain of the trial of an issue outside the pleadings if he voluntarily tries the case on the theory that such issue is in the case. Further, in case the trial court, when called upon to rule on the motion for new trial, discovered that the record established that there was no substantial evidence tending to prove the essentials of appellant's case, his order overruling the motion would be correct without regard to errors in instructions. Whether these things were so it is impossible to tell in the state of the record. Error has not been shown.

The judgment is affirmed,

All concur.