Atchison

• Decision Date: 06 April 1895
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. MATILDA WILKINSON

39 P. 1043

55 Kan. 83

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. MATILDA WILKINSON

Supreme Court of Kansas

April 6, 1895

Error from Harvey District Court.

ON the 8th day of April, 1890, Matilda Wilkinson commenced her action against The Atchison, Topeka & Santa Fe Railroad Company, before a justice of the peace in Harvey county, to recover $ 109.25 upon the following verified account:

APRIL 4, 1890.

The Atchison, Topeka & Santa Fe Railroad Company,

To Matilda Wilkinson, Dr.

January 30, 1890.

To 1 black silk dress, destroyed in transitu

$ 40 00

To 1 colored silk dress, destroyed in transitu

40 00

To 1 white embroidered silk dress, destroyed in transitu

12 00

To 1 French satine, destroyed in transitu

6 00

To 1 white embroidered skirt, destroyed in transitu

1 50

To 1 black velvet toque, destroyed in transitu

9 00

To 1 necktie, destroyed in transitu

75

Total

$ 109 25

"State of Kansas, Harvey county, to wit: Matilda Wilkinson, being first duly sworn, says that the foregoing account is just and true, and after allowing all just credits and offsets, there is due her on the said account the sum of one hundred and nine dollars and twenty-five cents ($ 109.25) from the said defendant.

MATILDA WILKINSON.

"Sworn to and subscribed before me, this the 8th day of April 1890.--B. P. REED, Justice of the Peace."

After judgment was rendered before the justice of the peace, an appeal was taken to the district court of Harvey county. Trial had before the court, with a jury. The jury returned a verdict in favor of the plaintiff and against the defendant for $ 100.21, and also made special findings of fact. The railroad company filed its motion for a new trial, which was overruled. Judgment was rendered upon the verdict. The railroad company excepted, and brings the case here.

Judgment reversed and cause remanded.

A. A Hurd, and Robert Dunlap, for plaintiff in error.

Rohrbaugh & Rauch, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

Upon the trial the plaintiff below was permitted to testify to the amount of damages caused to her dress and other articles described in the account sued on. This evidence was objectionable and should not have been received. A witness is not permitted to state his or her opinion with reference to the damages to be recovered. (Railroad Co. v. Muller, 45 Kan. 85-87; Railroad Co. v. Kuhn, 38 id. 675; Railroad Co. v. Ross, 40 id. 605.) The admission of this evidence is conceded to be erroneous, but it is claimed that it was cured because Mrs. Cooper, a dressmaker, testified properly as to the value of the articles sued for. The evidence improperly admitted was material, and we cannot say from the record that it was not prejudicial.

Again, it was error for the trial court to permit the plaintiff below to testify to the statements made by Mr. Walsh, the baggage agent of the railroad company, concerning alleged statements of the baggagemen to him about the trunk. ( Tennis v. Rapid Transit Rly. Co., 45 Kan. 503; Adams v. H. & St. J. Rld. Co., 74 Mo. 553, 556; Wellington v. B. & M. Rld. Co., 33 N.E. [Mass.] 393; Carroll v. E. T. V. & G. Rly. Co., 41 Am. & Eng. Rld. Cas. 307, 310, 311; N. H. Rld. Co. v. May, 27 id. 152, 153; Hough v. Doyle, 4 Rawle 291, 294; Luby v. H. R. Rld. Co., 17 N.Y. 131; Pa. Rld. Co. v. Books, 57 Pa. 339, 343.) The declarations of the baggagemen, unless they constituted a part of the res gestae, do not bind the company.

The bill of particulars contains a verified account, but the court seems to have treated the case on the trial as an action to recover damages occasioned by a tort. A party may waive a tort and sue on an account for...