Marion v. St. Louis & San Francisco Railroad ( 1907 )

BLAND, P. J.

(after stating the facts.) — 1. Defendants contend that the court erred in refusing to instruct the jury on the theory of plaintiff’s case, and on what ground he was entitled to recover. Section 748, Revised Statutes 1899, provides: “When the evidence is concluded, and before the case is argued or submitted, . . . . either party may move the court to give instructions on any point of law arising in the cause, which shall be in writing and shall be given or refused. The court may of its own motion give like instructions,” etc. In Eagle Construction Company v. Railroad, 71 Mo. App. 626, the plaintiff only asked an instruction as to the measure of damages. On appeal it was contended that plaintiff, by other instructions, should have presented all the issues made by the pleadings. This court, through Bond, J., at pages 629-30, said: “This view is erroneous. On the trial of civil cases the court is not required to instruct the jury except upon the request of the parties. As the plaintiff asked for no other instructions than the one given the court was not obliged to give any other on its behalf. If the defendant desired any or all of the issues joined to be presented by instructions, it should have framed appropriate request^ in writing for that purpose. This was not clone in the present case, wherefore defendant is in no position to complain that all the issues were not submitted to the jury. Non-direction in civil cases is never reversible error. [R. S. 1889, sec. 2188; Nolan v. Johns, 126 Mo. loc. cit. 166, 28 S. W. 492; Browning v. Railway, 124 Mo. loc. cit. 72, 27 S. W. 644; Coleman v. Drane, 116 Mo. loc. cit. 394, 22 S. W. 801; Railway v. Townsite Co., 103 Mo. loc. cit. 468, 15 S. W. 437; Tetherow v. Railway, 98 Mo. loc. cit. 86, 11 S. W. 310; Hurst v. Scammon, Bailey & Co, 63 Mo. App. 636; Storck v. Mesker, 55 Mo. App. loc. cit. 39.]” The cases cited in the opinion support the text, which we think is in accord with section 748, Revised Statutes Í899. A request for instructions under this section can only be legally and properly made by submitting the request in Avriting, embodying the instructions the mover thinks the court should give. The petition stated every fact contained in the statute on which it is based, essential, to plaintiff’s right of recovery and though it is inartificially drawn and possibly open to attack by demurrer, Ave entertain no doubt that it is •sufficient after verdict and judgment. No reversible error appearing, the judgment is affirmed.

All concur.