Weber v. Kansas City Cable Ry. Co.

• Decision Date: 22 March 1890
• Citation: Weber v. Kansas City Cable Ry. Co., 100 Mo. 194, 13 S.W. 587 (Mo. 1890)
• Parties: WEBER v. KANSAS CITY CABLE RY. CO.
• Court: Missouri Supreme Court

13 S.W. 587

100 Mo. 194

WEBER v. KANSAS CITY CABLE RY. CO.

Supreme Court of Missouri.

March 22, 1890.

APPEAL — EXCEPTIONS — DEMURRER TO EVIDENCE.

1. A statement in a bill of exceptions that the court refused to give certain numbered instructions asked by defendant, "to which refusal of the instructions thus asked the defendant by its counsel then and there excepted at the time," will not be treated as a general exception to the action of the court in refusing the instructions as a whole, but will entitle defendant to have each refused instruction considered by the supreme court.

2. Defendant does not waive a demurrer to plaintiff's evidence by putting in his own evidence; but the supreme court, in reviewing the ruling of the lower court, will do so in the light of all the evidence, no matter by whom or when offered; and if there is a case to go to the jury the supreme court will not reverse, though the demurrer to plaintiff's evidence should have been sustained as the case stood when it was interposed.

On motion for rehearing. See 12 S. W. Rep. 804.

Johnson & Lucas, for appellant. Wash Adams, for respondent.

PER CURIAM.

So far as the merits of this case are concerned, we deem it unnecessary to add anything to the opinion heretofore filed. A complaint is made that the court did not give full consideration to the point made in the respondent's brief that exceptions were not properly saved by appellant to the action of the circuit court in refusing certain instructions, among which was one to the effect that, upon the pleadings and evidence, the plaintiff could not recover. This instruction is numbered 10, and is one of 13 asked by defendant, but refused by the court. In respect of these refused instructions the bill of exceptions says: "And said instructions Nos. 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, and 22, as asked, the court refused, to which refusal of the instructions thus asked the defendant by its counsel then and there excepted at the time." The argument is that there is here but a general exception to the refused instructions as a whole, and if any one instruction was properly refused, the exception must fail. Authorities are cited from other states which favor the position taken by the respondent, but such is not, and never has been, the rule of practice in this state. Under our Code of Civil Procedure¹ either party may, after the close of the evidence, move the court to give instructions, which are usually prepared by couns...