Boggs v. Lynch

• Decision Date: 31 March 1856
• Citation: 22 Mo. 563
• Parties: BOGGS & KENNARD, Respondents, v. LYNCH AND OTHERS, Appellants.
• Court: Missouri Supreme Court

22 Mo. 563

BOGGS & KENNARD, Respondents,

v.LYNCH AND OTHERS, Appellants.

Supreme Court of Missouri.

March Term, 1856.

1. Where in a suit against a keeper of a livery stable to recover damages for injuries sustained in consequence of the negligent driving of a carriage of defendant by one of his servants, testimony was offered on the part of defendant to show that the general character of the driver was that of a prudent and careful driver; held, that such testimony was properly excluded.

2. On a motion for a new trial on the ground of newly discovered evidence, the affidavit of the party to the suit will not itself suffice; the affidavit of the new witness must be produced or its absence accounted for.

Appeal from St. Louis Court of Common Pleas.

The facts sufficiently appear in the opinion of the court.

Hill, Grover & Hill, for appellants.

I. Z. Smith, for respondents, cited 1 Tyler, 443; Cooke, 292; 3 A. K. Marsh, 104; 2 Nott & McC. 563; 2 Bay, 268; 4 Blackf. 307; 1 Green, 177; Grah. on New Trials, 467; 20 Mo. 425; 1 Caines, 24; 23 Verm. 244.

RYLAND, Judge, delivered the opinion of the court.

This suit was brought by plaintiffs to recover damages for the alleged trespass of a servant in the employ of defendants. The petition alleges that plaintiffs, being the owners of a box of looking-glasses, had employed a carman to transport them from the levee, in the city of St. Louis, to their store on Fourth street; that while they were in the act of unloading the box and had it partly out of the car, a negro servant, then in the employment and under the control and direction of defendants, and at the time engaged in driving a carriage and horses of defendants, carelessly and negligently drove the said carriage against the horses attached to the car in which was plaintiffs' glass, and thereby causing the horses attached to the car to start and the glass to be broken.

The answer admits that the servant was in the employment of defendants, but avers that he was under the direction of one Sublette, who had hired the horses, carriage and driver of defendants, and had direction of them at the time of the alleged accident.

At the trial, it appeared by the testimony of the plaintiffs' witnesses, that the horses of defendants came into collision with the horses and car in which the box of glasses was, causing the horses of the car to start, and the box of glasses to fall, and thereby become broken and the glasses destroyed. The value of the glasses was proved. The defendant then called the plaintiff (Kennard), whose testimony corroborated that of his own witness, the carman.

The court instructed the jury that the plaintiffs could not recover if the servant willfully did the wrong. The court also excluded the testimony offered by defendants, tending to show that the general character of the driver of defendant's carriage was that of a prudent, careful driver. The jury found their verdict for plaintiff, and judgment was rendered thereon.

The defendants moved for a new trial on account of the rejection of the evidence as to the driver's character, and on the ground of newly discovered evidence--a witness by whom he could prove that there was no collision, but that the carman's horses took fright themselves, when ...