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DRAFT FOR ATTORNEY REVIEW — NOT FINAL

Kunkle Water & Electric, Inc. v. Nehai Tonkayea Lake Ass'n, 639 S.W.2d 177 (1982)

Citation
Kunkle Water & Electric, Inc. v. Nehai Tonkayea Lake Ass'n, 639 S.W.2d 177 (1982)
Parent Document
Kunkle Water & Electric, Inc. v. Nehai Tonkayea Lake Ass'n, 639 S.W.2d 177 (1982)
Jurisdiction
Missouri (state)
Effective Date
1982-07-27

Full Text

2,209 chars
The matter of any omission in Instruction No. 9 to include any damages occasioned by the failure to reimburse appellant for meals, lodging and mileage was not presented to the trial court in respondent’s motion for new trial, and thus was not ruled at all below. The first time it is mentioned is in the argument portion of respondent’s brief. It is only where the trial court has ruled an issue and it is contended that the ruling is erroneous that a successful respondent may urge the matter as an additional ground on appeal to sustain the judgment. In Higgins v. Higgins, 243 Mo. 164, 147 S.W. 962, 963[l-4] (1912), it is said, “[F]or it is within the rights of respondent to call attention to any other errors than those referred to by the trial court, contained in the motion for new trial, as a sufficient ground to sustain the ruling appealed from.” [Italics added.] This rule has been reiterated in a long line of cases: St. Charles Sav. Bank v. Denker, 275 Mo. 607, 205 S.W. 208, 212[10, 11] (1918); Adams v. Kansas City Southern Ry. Co., 83 S.W.2d 913, 915[2-4] (Mo.App.1935) [quashed on the preserved ground of contributory negligence as a matter of law, State ex rel. Kansas City Southern Ry. Co. v. Shain, 340 Mo. 1195, 105 S.W.2d 915 (banc 1937)]; O’Connell v. Dockery, 102 S.W.2d 748, 750[5, 6] (Mo.App.1937); Oertel v. John D. Streett & Company, 285 S.W.2d 87, 99[12] (Mo.App.1955) [the trial court made *180no ruling with respect to interest entitlement]; and much later cases: Silvey v. Missouri Pac. R. Co., 445 S.W.2d 354, 361[7] (Mo.1969) [* * * “[A] respondent may show error not relied upon by the trial court (if raised in his motion for new trial) to support the judgment, but not to modify or change it. Citing cases.”]; Stahlhut v. Sirloin Stockade, Inc., 568 S.W.2d 269 (Mo.App.1978); Cascio v. Garrett, 535 S.W.2d 272 (Mo.App.1976). It appears that the jury could and did find that appellant was entitled to the full amount of its account. Respondent is precluded from presenting on this appeal the matter of omission from Instruction No. 9 the elements of damages for appellant’s claim for meals, lodging and mileage because it was not presented to and ruled by the trial court.