Shenuit v. Breuggestradt

• Decision Date: 18 November 1879
• Citation: 8 Mo.App. 46
• Parties: FRANK SHENUIT, Respondent, v. THEODORE BREUGGESTRADT, Appellant.
• Court: Missouri Court of Appeals

8 Mo.App. 46

FRANK SHENUIT, Respondent,

v.THEODORE BREUGGESTRADT, Appellant.

St. Louis Court of Appeals, Missouri.

Nov. 18, 1879.

1. The mere fact that the testimony of two witnesses is contradictory will not warrant an instruction that if any witness has sworn falsely to any material fact, the jury may discredit the testimony of such witness as to any fact in the case.

2. Where an instruction of this character is warranted by the facts, it can be given only on the hypothesis that the witness knowingly testified to an untruth.

3. Where the plaintiff in replevin is deprived of specific personal property having no special value in use, the measure of damages, where there is no depreciation, is legal interest on the value of the goods from the date of the demand to the taking under the writ.

4. Where the verdict is for the defendant, the measure of damages is the value of the property at the time of the taking, with legal interest to the date of the trial.

APPEAL from the St. Louis Circuit Court.

Reversed and remanded.

A. A. PAXSON and HERMANN & ROBERTSON, for the appellant: An instruction which allows the jury to find such damages as they may believe the party has sustained, is erroneous.-- Wright v. Jacobs, 61 Mo. 23; Armstrong v. City, 3 Mo. App. 106. An instruction allowing the jury to discredit the whole of a witness's testimony, found to be false in one material particular, must include the hypothesis of the witness's knowledge of its falsity.-- Paulette v. Brown, 45 Mo. 52; The State v. Brown, 64 Mo. 374; Bank v. Murdock, 62 Mo. 74. As to excessive damages, see Bosse v. Thomas, 3 Mo. App. 480; Armstrong v. City, 3 Mo. App. 106.

W. H. H. RUSSELL, for the respondent.

HAYDEN, J., delivered the opinion of the court.

This is an action of replevin, in which the defendant was a mere bailee, the real claimant of the property being one Annie Brueggestradt, the married daughter of the plaintiff. The material question was whether the property was included in certain chattels which the father had given or sold to his daughter. There was judgment for the plaintiff.

The plaintiff and the claimant directly contradicted each other on the issue just stated, and upon this basis the court gave, at the plaintiff's request, an instruction to the effect that if any witness in the case had testified falsely to any material fact, the jury might discredit the testimony of such witness upon any material fact in the case. This was an insufficient foundation for the giving of the instruction, while the declaration of law itself was erroneous, as omitting the element of the witnesses' knowledge. Bank v. Murdock, 62 Mo. 74. Here was no such basis laid for the giving of the proper instruction as in the recent case of Peckham v. Glass Company, 7 Mo. App. 563, where, there...