Parkleton v. Pugsley

REYBURN, J. (after stating the facts). — 1. Amongst other objections urged against the instruction in behalf of plaintiff, it is assailed as defective in not requiring the jury to find that the property taken by the constable could have been legally claimed as exempt from execution or that it was all the property owned by the plaintiff, from which he could claim his statutory exemptions. This court has repeatedly held that while not empowered to reverse judgments for non-prejudicial errors, error is always presumed to be prejudicial and that before an appellate court'is. justified in pronouncing it to be harmless, it devolved upon the respondent to make clearly apparent that such error worked no injury to the opposite party. Skinner v. Stifel, 55 Mo. App. l. c. 13. The doctrine has been reiterated by the Supreme Court to the like effect, that error is esteemed prejudicial to the rights of the party against whom it is committed, except in instances where it clearly appears that it could not have misled or influenced the jury or changed the result. Doyle v. M. K. & T. Trust Co., 140 Mo. l. c. 20, 41 S. W. 255. Employing the language of perhaps the last expression of an appellate court in this State, “In the absence of a satisfactory showing that error is harmless’, we must conclude that it is prejudicial to the party aginst whom it is committed.” Gerber v. Kansas City, 79 S. W. 717. The silence of the instruction in the essential elements noted can not confidently be affirmed to have worked no detriment to defendant nor to have failed to influence the result of the trial. With such conclusion attained it is rendered needless to weigh the contention that the testimony ad [679] duced fail to sustain the charges of the petition as the infirmities of the latter may he remedied by amendment before retrial. The judgment is accordingly reversed and the cause remanded. Goode, J., concurring, Bland, P. J., dissenting.