Palmer v. Shaw Transfer Co.

• Decision Date: 01 March 1919
• Docket Number: No. 19856.,19856.
• Citation: Palmer v. Shaw Transfer Co., 209 S.W. 882 (Mo. 1919)
• Parties: PALMER v. SHAW TRANSFER CO.
• Court: Missouri Supreme Court

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...