Bevis v. Baltimore & O. R. Co.

• Citation: 26 Mo.App. 19
• Parties: ALFRED BEVIS, Respondent, v. BALTIMORE & OHIO RAILROAD COMPANY, Appellant.
• Decision Date: 03 May 1887
• Court: Missouri Court of Appeals

26 Mo.App. 19

ALFRED BEVIS, Respondent, v. BALTIMORE & OHIO RAILROAD COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

May 3, 1887

APPEAL from the St. Louis Circuit Court, AMOS M. THAYER, Judge.

Reversed and remanded.

POLLARD & WERNER, for the appellant: The burden of showing want of care rests upon the plaintiff. Welch v. Car Co., 1 Sheldon (N. Y.) 459; Palmeter v. Wagner Car Co., 11 Alb. Law Jour. 149; Blum v. Car Co., 1 Flipp. (U S.) 500; Car Co. v. Gardner, 16 Am. and Eng. R. R Cases, 324; Tracy v. Car Co., 67 How. Pr. (N. Y.) 154; Woodruff Car Co. v. Diehl, 84 Ind. 474; Scaling v. Car Co., 24 Mo.App. 29, and numerous other cases. Proof of the loss alone is not sufficient to entitle the plaintiff to recover, nor does it shift the burden of proving negligence on the defendant; but the plaintiff must go further and establish the fact that the loss was caused by the negligence of the defendant. Stearne v. Car Co., 21 Am. and Eng. R. R. Cases 443; Dargen v. Car Co., 5 Texas App; Texas Law Review, 619; Tracy v. Car Co., 67 How. Pr. 154; Scaling v. Car Co., 24 Mo.App. 29. The testimony of the respondent and his witness, Edwards, as to what the conductor and porter said, on the morning after the alleged theft, was incompetent, and should have been excluded from the jury. These declarations were merely the recitals of past transactions. 1 Greenleaf on Evid., sect. 113; McDermott v. Railroad, 73 Mo. 516; Adams v. Railroad, 74 Mo. 553; Albridge v. Furnace Co., 78 Mo. 559; Fairley v. Hastings, 10 Vesey, Jr., 123 to 136; Langham v. Allunt, 4 Taunton 511.

DYER, LEE & ELLIS, for the respondent.

OPINION

THOMPSON J.

This action is brought to recover the value of a diamond scarf pin and five dollars in currency, alleged to have been stolen from the plaintiff while a passenger on the defendant's railway, and asleep in one of its sleeping cars. The right of recovery is predicated upon the negligence of the servants of the defendant, in failing to keep the proper watch during the night. The value of the pin is alleged in the petition to have been four hundred and ninety-five dollars. The damages claimed were five hundred dollars. The answer was a general denial. A trial took place before a jury, and the plaintiff recovered a verdict for five hundred and twenty dollars damages--twenty dollars more than he claimed in his petition, and judgment was entered thereon, from which this appeal is prosecuted.

At the trial, the plaintiff gave evidence tending to show that he took passage on the defendant's railroad from Cincinnati to St. Louis; that he purchased a sleeping car ticket of the defendant, and thereupon was permitted to enter one of the defendant's sleeping cars as a passenger; that he wore a diamond scarf pin on his scarf, which he had bought in 1862, and which he had then worn continuously for twenty-two or twenty-three years, which pin was of the value of five hundred and fifty dollars; that, when he went to bed, he saw that the pin was upon his scarf; that he wrapped the scarf up, with the pin sticking in it, on the inside, put it inside his vest, and, also, put his pocket book inside his vest, and then put his vest under his pillow, back as far as he could put it. He slept in the upper berth; for, although his ticket called for the lower berth, in the particular section, he had given the lower berth to an old lady whose ticket called for the upper berth, taking the latter berth to oblige her. He slept all night, and, when he got up in the morning, he put on his vest, took his collar, cuffs, and satchel, and went into the washroom, where there were two gentlemen. When he had washed, he put his hand in to take out his scarf, when he discovered that his pin was gone, and that his pocket book was gone, also. He made an exclamation, " Gentlemen, I have been robbed!" About that time the porter came into the wash-room, and the fact of the plaintiff's loss was stated to him, whereupon a conversation took place between the plaintiff, the porter, and several other passengers, in which other passengers stated they had been robbed, and in which the porter stated what had taken place during the night, and that he had suspicions of two men who had gotten off during the night at Vincennes. The sleeping car conductor came in, during the conversation, and participated in a portion of it.

I. This declaration of the porter, stating what had taken place during the night, and the suspicions which he had had of the two passengers who got off at Vincennes, if admissible, was evidence very important for the plaintiff, because other evidence showed that no such suspicions had been communicated by the porter to the conductor; if inadmissible, it was plainly prejudicial to the defendant. It was objected to, but nevertheless admitted, as was, also, evidence of the statement of the conductor in the same conversation, to the effect that the porter had not notified him that he suspected the two passengers who got off at Vincennes. We do not understand that the learned counsel for the plaintiff now take the position that this testimony was competent. We are of opinion that it was inadmissible, under the rule laid down in the following cases: McDermott v. Railroad, 73 Mo. 516; Adams v. Railroad, 74 Mo. 553; Aldridge v. Midland Blast Furnace Co., 78 Mo. 559; Wengler v. Railroad, 16 Mo.App. 493. The rule which admits admissions of an agent, in an action against his principal, applies only in two cases: (1) Where the scope of the agency is such that the agent is an agent for the purpose of making the particular admission--as, where an attorney, in the course of a trial, makes a solemn admission against the interest of his client. (2) Where the admission is in the form of a declaration made by an agent, while acting within the scope of his agency, and about the business of his principal, concerning such business. In such a case the declaration, made dum fervet opus, is a part of the res gestae; it tends to characterise the act which the agent is doing for his principal at the time; it is regarded as a verbal act; and it is admitted on the principle that the whole transaction, and not merely a part of it, ought to appear, including what was said as well as what was done. But, where the declaration of the agent relates to his past conduct, or to a past transaction in which he has acted for his principal, so that it is in the nature of a mere historical narrative, it is not admissible to bind his principal, unless the scope of the agency was such that the agent had authority to make the admission for his principal. This rule seems to exclude the evidence of the declarations of the porter and conductor in this case; though, for myself, I confess to the opinion that the truth of any declarations or admissions which either would make, tending to show his own negligence, would be highly probable, and would be accepted as such by all men in the ordinary affairs of life. The rule of the law, however, is as above stated, and we are not at liberty to change it.

II. The plaintiff was allowed, at first, to give evidence as to the declarations of other passengers, at the time of the above stated conversation, to the effect that they had also been robbed. This testimony, on subsequent consideration, was excluded by the court; but, against repeated objections of the defendant, the cross-examination of the porter and the conductor, who had been called as witnesses for the defendant, was allowed to take such a course that the evidence was got before the jury. If it was a fact that other passengers were, also, robbed, it was a material circumstance, strengthening the conclusion that a diligent watch had not been kept by the defendant's servants. Of itself the evidence was clearly competent; but this manner of proving the fact was clearly inadmissible. The declarations of other passengers that they had been robbed was hearsay evidence merely, and the passengers making such declarations may themselves have been the thieves, making these declarations for the purpose of averting suspicion from themselves. On another trial this evidence should be carefully excluded, unless witnesses are produced who are able to swear to the fact of their own knowledge.

III. The two remaining assignments of...