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Weinbauer v. Berberich

610 S.W.2d 674 (Mo. Ct. App. 1980)
Weinbauer v. Berberich

11 Citing cases

  1. Tune v. Synergy Gas Corp.

    883 S.W.2d 10 (Mo. 1994)   Cited 96 times
    Finding plaintiff’s counsel’s remark that the plaintiff was "certainly not motivated by any desire to place a hardship upon [the defendant] personally" was "grossly and patently improper" in the context of seeking damages for which prejudice was not cured by the trial court's "mild and perfunctory" ruling sustaining the objection and directing the jury to disregard the comment

    On the few occasions when the Missouri courts have faced the issue of what is proper rebuttal under circumstances in which defendant has argued damages in defendant's closing argument, the courts have referred to this circumstance as a waiver of the general rule that looks to plaintiff's initial closing argument to determine what is proper rebuttal. See Barrett v. Morris, 495 S.W.2d 100, 105 (Mo.App. 1973); Weinbauer v. Berberich, 610 S.W.2d 674, 678 (Mo.App. 1980). It is more accurate and helpful to state the complete rule in the affirmative, i.e., in the final portion of the closing argument a plaintiff can argue anything that plaintiff argued in the initial portion of the closing argument and rebut anything that the defendant argued in defendant's portion of the closing argument.

  2. Trinity Lutheran Church v. Lipps

    68 S.W.3d 552 (Mo. Ct. App. 2002)   Cited 26 times
    Declining to adjudicate the issues that had become moot but deciding the remainder of the case

    SeeKinetic Energy Dev. Corp. v. Trigen Energy Corp., 22 S.W.3d 691, 697 (Mo.App. 1999). Although generally whether respondeat superior applies is a question of fact for the jury, when the facts are undisputed, as in this case, and can result in only one reasonable conclusion, the matter is a question of law. Willamson v. Southwestern Bell Tel. Co., 265 S.W.2d 354, 359 (Mo. 1954); Weinbauer v. Berberich, 610 S.W.2d 674, 677 (Mo.App. 1980). Therefore, our standard of review in this instance is de novo.

  3. Bair v. St. Louis-San Francisco Ry. Co.

    647 S.W.2d 507 (Mo. 1983)   Cited 18 times
    In Bair v. St. Louis-San Francisco Ry. Co., 647 S.W.2d 507 (Mo. banc), cert. denied, 464 U.S. 830, 104 S.Ct. 107, 78 L.Ed.2d 109 (1983), this Court stated, "The fact that a dollar today is not the same thing as a dollar payable some years from now, furthermore, is the matter of plainest fact which could be appropriately argued without the need for expert testimony."

    However, the extensive medical testimony indicated that the accident sustained January 18, 1973 caused the complained of injuries to Bair's back. See Weinbauer v. Berberich, 610 S.W.2d 674, 680 (Mo.App. 1980); Gant v. Scott, 419 S.W.2d 262 (Mo.App. 1967). Thus, the trial court was not required to modify, nor was Frisco prejudiced by, the damage instruction.

  4. Shapiro v. Kravitz

    754 S.W.2d 44 (Mo. Ct. App. 1988)   Cited 5 times
    In Shapiro v. Kravitz, 754 S.W.2d 44 (Mo.App.E.D. 1988), this Court stated, "[g]enerally the measure of damage to an automobile is the decrease in its fair market value after the accident.

    Thus, in his argument defendant interjected the issue of damages in terms of both fair market value and repair cost, and he is in no position to complain of plaintiff's failure to argue damages in the first portion of his argument. See Weinbauer v. Berberich, 610 S.W.2d 674, 678[7] (Mo.App. 1980). Defendant admitted, during his testimony, that he was at fault in the accident, thus the issue of liability is not in dispute.

  5. Sedalia Mer. Bank Tr. v. Loges Farms

    740 S.W.2d 188 (Mo. Ct. App. 1987)   Cited 32 times
    Concluding an agency relationship did not exist because the parent only required its subsidiary to follow guidelines and the parent did not direct operations, thus the relationship was not total, actual, and participatory

    Normally, whether a principal-agent relationship exists and whether respondeat superior applies are questions for the jury, but when the facts are undisputed and only one reasonable conclusion can be drawn from them, the matters become questions of law. See Weinbauer v. Berberich, 610 S.W.2d 674, 677 (Mo.App. 1980); Smoot v. Marks, 564 S.W.2d 231, 236 (Mo.App. banc 1978). It is undisputed in this case that Sedalia Mercantile is a subsidiary of the parent Mercantile Bancorporation and that Mercantile Bancorporation owns 100% of the stock of Sedalia Mercantile.

  6. Wadlow by Wadlow v. Lindner Homes, Inc.

    722 S.W.2d 621 (Mo. Ct. App. 1987)   Cited 21 times
    In Wadlow v. Lindner Homes, Inc., 722 S.W.2d 621, 633 (Mo. App. E.D. 1986), and Reed v. Curators of University of Missouri, 509 S.W.3d 816, 827 (Mo. App. W.D. 2016), the appellate court found that, while the written directed verdict motions lacked specificity, when combined with the arguments of counsel, the motions were sufficient.

    Ordinarily the trial judge is in the best position to gauge the effect of the propriety of closing argument, Robbins v. Brown-Strauss Corp., 363 Mo. 1157, 257 S.W.2d 643, 648 (Mo. 1953), and the trial court is given considerable discretion in ruling on matters dealing with closing argument. Weinbauer v. Berberich, 610 S.W.2d 674, 678 (Mo.App. 1980). Solely because the evidence was before the jury without objection and related to the negligent acts of Roger Wadlow as an employee we find no prejudice in the trial court's ruling.

  7. Abshire v. Nordson Corp.

    688 S.W.2d 1 (Mo. Ct. App. 1985)   Cited 4 times

    Notes on use are commands which must be followed. Weinbauer v. Berberich, 610 S.W.2d 674, 680 (Mo.App. 1980); Vest v. City National Bank and Trust Company, 470 S.W.2d 518, 520 (Mo. 1971). With respect to converse instructions it would appear that the notes on use adopted the committee comment and should be followed.

  8. Dickerson v. St. Louis Southwestern Railway Co.

    674 S.W.2d 165 (Mo. Ct. App. 1984)   Cited 12 times
    In Dickerson v. St. Louis Southwestern Ry. Co., 674 S.W.2d 165, 171 (Mo.App. 1984), where error was alleged in denying appellant's motion for mistrial "when the jury saw respondent's wife helping him up from a supine position on a courtroom bench," it was noted that the record was devoid of any indication that the jury actually saw the incident of which appellant complained other than the bare statement of appellant's trial counsel.

    The Notes on Use to the MAI must be followed where applicable. Weinbauer v. Berberich, 610 S.W.2d 674, 680[11] (Mo.App. 1980). The point is not well taken.

  9. Steinlage v. Marchetto

    659 S.W.2d 292 (Mo. Ct. App. 1983)

    The pain experienced while bending over was such a consequence and not a separate mishap, and the jury could not have been misled. Cf. Weinbauer v. Berberich, 610 S.W.2d 674, 679-680 (Mo.App. 1980). "Where an instruction, as a matter of law, is not erroneous in view of the record, it is error for the trial court to grant a new trial on the ground that the instruction was improper."

  10. Newman v. Twin City State Bank

    649 S.W.2d 524 (Mo. Ct. App. 1983)

    However, as in the instant case, where Newman as plaintiff and by his evidence submitted no evidence upon the question of agency, he did not plead agency, and the trial court was left with the only reasonable conclusion that no agency existed, the matter then becomes a question of law determinable by the court. Weinbauer v. Berberich, 610 S.W.2d 674, 677 (Mo.App. 1980). Newman's evidence further failed to establish a required element of the intentional tort of trespass, to wit, intent.