Wilhite v. Armstrong

• Decision Date: 17 November 1931
• Docket Number: No. 28902.,28902.
• Parties: C.C. WILHITE, Appellant, v. J.N. ARMSTRONG.
• Court: Missouri Supreme Court

43 S.W.2d 422

C.C. WILHITE, Appellant, v. J.N. ARMSTRONG.

No. 28902.

Supreme Court of Missouri.

Court en Banc, November 17, 1931.

Appeal from Circuit Court of St. Louis County. — Hon. G.A. Wurdeman, Judge.

AFFIRMED.

Dubinsky, Duggan & Stein for appellant.

Leahy, Saunders & Walther and Lyon Anderson for respondent.

FRANK, J.

Action by appellant, plaintiff below, to recover damages for alleged personal injuries. Verdict and judgment for defendant, and plaintiff appealed.

In our view of the record, a statement of the facts is not necessary to a proper determination of this case. The only complaint on this appeal is that the court erred in giving, on behalf of defendant, instructions numbered 3, 4, 5, 6, 7 and 8. The complaint in the motion for new trial regarding the giving of these instructions is as follows:

"6. Because the court erred in giving and granting at the request of defendant certain instructions."

"7. Because the court erred in giving and granting and reading to the jury instructions offered by and on behalf of the defendant and modified by the court."

The specifications in the motion for new trial are not sufficient to authorize a review of any instructions. The rule is that a general assignment of error in a motion for new trial as to the giving and refusal of instructions is good. [Wampler v. Railroad, 269 Mo. 464, 465, 190 S.W. 908; Bobos v. Krey Packing Co., 296 S.W. 157, 159.] But we do not regard the assignments in the instant case as general assignments. The complaint is that the court erred in giving certain instructions at the request of defendant. One definition of the word certain, as given by Webster is, "Not specifically named; indeterminate, indefinite; one or some." Anyone reading this assignment would at once conclude that it was not a complaint against all the instructions given at the request of defendant. In this situation, the court was entitled to know what particular instructions were criticized, and was not required to review all the instructions, including those not criticized, in order to determine whether or not error was committed in the giving of certain particular instructions against which plaintiff intended to complain but failed to point out in his motion for new trial. If the motion for new trial had alleged generally, as in the Bobos case, supra, that the court erred in giving erroneous instructions at the request of defendant, such a general allegation would have covered any or all instructions...