American Tobacco Co. v. Schulenburg

• Decision Date: 04 June 1929
• Docket Number: No. 20152.,20152.
• Parties: AMERICAN TOBACCO CO. v. SCHULENBURG.
• Court: Missouri Court of Appeals

17 S.W.2d 557

AMERICAN TOBACCO CO. v. SCHULENBURG.

No. 20152.

St. Louis Court of Appeals. Missouri.

June 4, 1929.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be officially published."

Action by the American Tobacco Company, a corporation, against Arthur O. Schulenburg, doing business as the Schulenburg Motor Service Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Kane, Blackinton & Reid, of St. Louis, for appellant.

John J. Nangle, of St. Louis, for respondent.

HAID, P. J.

This suit was instituted by plaintiff to recover for the loss of merchandise intrusted to defendant for delivery to various railroad terminals. The petition alleged that the merchandise intrusted to defendant was of the value of $6,943.77, and defendant was charged with failure to deliver merchandise of the value of $2,888.63, for which judgment was prayed. From a verdict in favor of the defendant, this appeal was prosecuted.

But two errors are assigned, one to the admission of certain testimony on the part of the defendant, and the other to an instruction given at the instance of the defendant.

Upon the first error assigned the record shows that in the taking of the testimony for plaintiff it introduced two witnesses, one of whom testified that he saw some of the merchandise which was recovered by the police and taken back into the shipping department at Forest Park Boulevard, and upon cross-examination stated: "I didn't see the holdup. I know there was a loss." Another witness for plaintiff testified that he saw part of the load at the Magnolia Police Station some time after its delivery to the defendant. In response to this testimony the defendant introduced, as a witness, the chauffeur in charge of the truck upon which the lost goods had been loaded. He testified that he drove down Laclede avenue and when he had reached Spring avenue a man jumped on his truck, put a gun to his side, and compelled him to drive around the corner, which he did. He was then compelled to get into another machine and was taken out into the country to a sparsely settled place near Affton, where he was released and told to get out. Objections were made to this testimony and overruled.

There are two reasons why the contention of the plaintiff should not prevail as to this feature of the case: First, two witnesses for the plaintiff had testified that part of the shipment was found in the hands of the police. The plaintiff thus having injected testimony as to an occurrence concerning the property, the defendant was entitled to have all of the facts with reference thereto placed before the jury. Larkin v. Wells (Mo. App.) 12 S.W.(2d) loc. cit. 511; State v. Schenk, 238 Mo. loc. cit. 456, 142 S. W. 263; Friedman v. Griffith (Mo. App.) 196 S. W. loc. cit. 77; Willgues v. Pennsylvania R. Co. (Mo. Sup.) 298 S. W. loc. cit. 824. But also since under this testimony, absent an explanation, an impression...