On Rehearing.
Per Curiam—So far as the merits of this case are concerned, we deem it unnecessary to add anything to the opinion heretofore filed.
A complaint is made that the court did not give full consideration to the point made in the respondent’s brief that exceptions were not properly saved, by appellant, to the action of the circuit court in refusing certain instructions, among which was one to the effect that, upon the pleadings and evidence, the plaintiff could not recover. This instruction is numbered 10, and is one of thirteen asked by defendant, but refused by the court. In respect of these refused instructions, the bill of exceptions says : “And said instructions, numbers 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22, as asked, the court refused, to which refusal of the instructions thus asked, the defendant, by its counsel, then and there excepted at the time.”
The argument is that there is here but a general exception to the refused instructions as a whole, and, if any one instruction was properly refused, the exception must fail. Authorities are cited from other states, which favor the position taken by the respondent, but such is not, and never has been, the rule of practice in this state. Under our code of civil procedure, either party may, after the close of the evidence, move the court to give instructions which are usually prepared by counsel and must be in writing, and the practice is to number them, as was done in the present case. The refused instructions must be set out in the bill of exceptions, and a.formula often used for saving the *206exceptions is “ which instructions the court refused, to which refusal of the instructions thus prayed, the defendant, by his counsel, then and there excepted at the time.” Whittlesey’s Prac. 482. Such an exception entitles the party to have each refused instruction considered in this court. Whatever may be the ruling of other courts, we niust follow the rule which has heretofore prevailed in this court, and we see no reason to depart from it if we were at liberty to do so. This form of saving exceptions is quite as well understood as if the objector had said he excepted to the action of the court in refusing to give said instructions and each of them. There is nothing in Harrison v. Bartlett, 51 Mo. 170, or City of St. Joseph v. Misworth, 65 Mo. 628, which conflicts with what has been said in this case.
One of the grounds assigned for a new trial was “because the court erred in refusing to give instructions numbers 10 to 22 inclusive, asked by the defendant.” This was sufficient.
Again, counsel for the respondent ai’e in error in supposing that the defendant waived its objection to the action of the court in overruling the demurrer to plaintiff ’ s evidence by putting in its own evidence. When such a demurrer is made and overruled and the defendant puts in its evidence, this court, in reviewing the ruling, will do so in the light of all of the evidence. If, upon all the evidence, no matter by whom, or when, offered, there is a case to go to the jury, we do not reverse, though the demurrer to the plaintiff ’ s evidence should have been given, as the case stood when it was interposed.
With these qualifications, the demurrer to the plaintiff’s evidence will be considered here, though the defendant should offer evidence after it is overruled. McPherson v. Railroad, 97 Mo. 254.
The motion for rehearing is overruled.