Still v. Glass

• Decision Date: 14 June 1920
• Docket Number: No. 13680.,13680.
• Parties: STILL v. GLASS et al.
• Court: Missouri Court of Appeals

222 S.W. 893

STILL v. GLASS et al.

No. 13680.

Kansas City Court of Appeals. Missouri.

June 14, 1920.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Action by Mathias J. Still against William J. Glass and another. Judgment for defendants on directed verdict, and plaintiff appeals. Appeal dismissed.

Geo. S. Shelton, Wm. T. Alford, and E. A. Scholer, all of Kansas City, for appellant.

Fred S. Hudson, of Kansas City, Chas. Lederer, of Chicago, and Simrall & Simrall, of Liberty, for respondents.

PER CURIAM.

This action was instituted to recover damages, for an alleged malicious prosecution. The trial court directed a verdict for defendants by peremptory instruction.

There was no assignment of errors made by plaintiff. But his brief contains "Points and Authorities," which if errors of the trial court relied upon for reversal were distinctly pointed out therein would take the place of a formal assignment of errors. But no rulings of the court are stated, nor errors pointed out, in such points and authorities. We copy them (omitting authorities cited):

"Points and Authorities.

"I. Respondents' instigation, maintenance, or participation in the prosecution was a question for the jury.

"II. Under the evidence in this case Kenyon's suppression of the facts amounted to instigation.

"III. Kenyon's act in reporting nonpayment to the captain without full disclosure, when he believed plaintiff innocent, was evidence of want of probable cause and malice.

"IV. Kenyon's offer to dismiss the prosecution on payment of $25 was evidence tending to show want of probable cause and malice.

"V. Respondents' failure to sign the complaint does not, as a matter of law, eliminate them as the procuring cause of the arrest.

"VI. Failure to report purchase under the ordinance does not act as a matter of law constitute probable cause of an arrest three months later.

"VII. Whether Kenyon's acts were within the scope of his authority as general manager of the Kansas City branch was a question for the jury."

The case is controlled by Frick v. Millers' Natl. Ins. Co. (Sup.) 213 S. W. 854; Hayes v. McLaughlin (Sup.) 217 S. W. 262, 264; Squaw Creek Drainage Dist. v. Hayes (Sup.) 217 S. W. 20; Vahldick v. Vahldick, 264 Mo. 529, 175 S. W. 199; Cook v. St. Joseph, 220 S. W. 693 (decided by us April 5, 1920).

It is the duty of the court to see to the enforcement of the statute and rules. St. Louis v. Young, 248 Mo. 346, 348, 154 S. W. 87; Hutson v. Allen, 236 Mo. 645, 139 S. W. 121.

There is another reason why plaintiff cannot sustain his appeal. It is a familiar rule that where he invites or requests a ruling he cannot make it a basis for error. We find from the record that plaintiff requested the trial court to give the peremptory instruction of which he is now complaining. At the close of the evidence the defendants requested the peremptory instruction, whereupon the court said:

"The jury will retire to the hall, and remain there until called. (Jurors here retire from courtroom. Here followed discussion between court and counsel.)

"The Court: By agreement off parties, the plaintiff is authorized to amend petition by changing the...