10 Mo.App. 235 (Mo.App. 1881), Batterson v. Vogel

Citation:10 Mo.App. 235
Opinion Judge:BAKEWELL, J.
Party Name:HENRY A. BATTERSON, Appellant, v. JOHN C. VOGEL, EXECUTOR, Respondent.
Attorney:ALLEN & CASTE, with whom is L. B. VALLIANT, for the appellant: W. H. H. RUSSELL and BROADHEAD, SLAYBACK & HAEUSSLER, for the respondent:
Judge Panel:Judge THOMPSON concurs; Judge LEWIS did not sit.
Case Date:April 12, 1881
Court:Court of Appeals of Missouri
 
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Page 235

10 Mo.App. 235 (Mo.App. 1881)

HENRY A. BATTERSON, Appellant,

v.

JOHN C. VOGEL, EXECUTOR, Respondent.

Court of Appeals of Missouri, St. Louis.

April 12, 1881

1. An inn-keeper is liable for a loss of his guest's goods not occasioned bye the latter's negligence, the act of God, or the public enemy.

2. That a guest is provided with facilities for fastening his door which he does not use, is not proof of negligence which will discharge the inn-keeper from liability for loss of the guest's property.

3. That the guest has means furnished him for securing himself which he fails to use, is a fact which, with other circumstances of the case, should be left to the jury.

4. The question in such a case is, whether the loss would have occurred if the plaintiff had used the ordinary care which a prudent man might reasonably be expected to take.

5. Unless good ground for it appears, an instruction that if the jury believe that a witness has knowingly sworn falsely as to any material fact they may disregard his entire testimony, should not be given.

6. When a cause has been reversed because of the admission of certain testimony, the error in admitting the same testimony again is not necessarily cured by withdrawing it from the jury by an instruction.

APPEAL from the St. Louis Circuit Court, BOYLE, J

Reversed and remanded.

ALLEN & CASTE, with whom is L. B. VALLIANT, for the appellant: That the guest fails to lock his door will not relieve the inn-keeper from liability.-- Coyle's Case, 8 Cow. 32; Burgess v. Clements, 4 Mau. & Sel. 316; Classen v. Leopold, 2 Sweeny 705: Hulett v. Swift, 33 N.Y. 573; Cashell v. Wright, 6 El. & Bl.--; Filipwoski v. Merriweather, 2 Fost. & Fin. 285; Mitchell v. Woods, 16 L. T. (N. S.) 676; Oppenheim v. White Lion, L. R. 6 C. P. 515; Buddenburgh v. Benner, 1 Hilt. 84. Unless the occasion requires it, it is error to warn the jury by an instruction against false swearing.-- Iron Mountain Bank v. Murdock, 62 Mo. 74; White v. Marcy, 64 Mo. 559.

W. H. H. RUSSELL and BROADHEAD, SLAYBACK & HAEUSSLER, for the respondent: A new trial will not be granted because incompetent testimony was allowed to go before the jury, which was afterwards taken from their consideration by a proper instruction.-- Fitzgerald v. The State, 14 Mo. 413. " Where there is testimony tending to show negligence, it is for the jury...

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