Charles v. St. Louis & Iron Mountain R.R. Co.

• Decision Date: 31 October 1874
• Citation: 58 Mo. 458
• Parties: CATHARINE CHARLES and THOMAS A. CHARLES, Respondents, v. ST. LOUIS AND IRON MOUNTAIN RAILROAD CO., Appellant.
• Court: Missouri Supreme Court

58 Mo. 458

CATHARINE CHARLES and THOMAS A. CHARLES, Respondents,

v.ST. LOUIS AND IRON MOUNTAIN RAILROAD CO., Appellant.

Supreme Court of Missouri.

October Term, 1874.

Appeal from Washington Circuit Court.

Dryden & Dryden with J. J. Williams, for Appellant.

I. The court erred in admitting Mrs. Charles to testify as a witness for the plaintiffs. She was incompetent. She was not the real party in interest. (Cord on Leg. and Eq. Rights of Married Women, §§ 987, 997, 998.) The case in 54 Mo., 285, was under statute giving the wife the right of action; that in 44 Mo., 441, was for land of wife; that in 48 Mo., 291, was to contest the validity of the will of the wife's ancestor.

II. The court erred in refusing to give the 6th instruction asked by the defendant. Both claimed the wood, and both requested the defendant to take it. The taking was not therefore wrongful, and hence was no trespass, and the plaintiffs were not entitled to recover in this form of action. (2 Greenl. Ev., § 613.)

John L. Thomas, for Respondents.

I. The court committed no error in permitting Mrs. Charles to testify in her own behalf. The suit was originally commenced in her name alone, and the cause of action accrued to her in her own right, and continued in her, and still continues in her. (Owen vs. Brockschmidt, 54 Mo., 285; Tingley vs. Cowgill, 48 Mo., 291; Fugate vs. Pierce, 49 Mo., 441.)

II. The value of the timber when taken, with 6 per cent. interest per annum, was the proper measure of damages in this case, and the instructions of the court on that proposition were correct. (Rice vs. Hollenbecke, 19 Barb., 664; 7 Cow., 95; 5 Johns., 348; 10 Johns., 237; 8 Wend., 508; 3 N. Y., 379; 6 Johns., 168; Martin vs. Porter, 5 Mees. & Wels., 351; 9 Id., 672.)

III. The court committed no error in refusing the instruction asked for by defendant in regard to the form of action. Defendant admits in its answer, that it took up the wood as Crawford's--denying the right of Mrs. West to it--and that he paid Crawford for it. This, in law, amounted to a wrongful taking and conversion of the property. (Sparks vs. Purdy 11 Mo., 221; O'Donoghue vs. Corby, 22 Mo., 393; Huxley vs. Hartzell, 44 Mo., 370; Koch vs. Branch, 44 Mo., 542.)

WAGNER, Judge, delivered the opinion of the court.

This was an action brought by the plaintiff, Catharine West, who afterwards, and during the pendency of the suit, intermarried with Thomas A. Charles, against the defendant for the taking and conversion of one hundred and fifty cords of wood.

The defendant in its answer admitted that it took the wood sued for, but justified the taking and subsequent conversion. It averred, that one Crawford contracted with the plaintiff, Mrs. West, to cut timber on her land, for cord wood, stave timber and cross ties, and that under that contract he cut the wood in controversy, and that after he cut and hauled the most of it to the railroad, plaintiff, West, sued out a writ of replevin, and that she got possession of the wood through the sheriff, and after the cause had remained in court some time, she dismissed the suit, and turned over the wood to Crawford, who sold the same to defendant; that defendant bought the wood ignorant of the rights of Mrs. West, and in good faith. It is further alleged that Crawford paid for chopping and hauling the wood, and that he had paid Mrs. West all that was due her for the timber taken according to the contract.

A replication was filed, denying that there was any such contract to cut timber, as was alleged in the answer; that Mrs. West got possession of the wood through the replevin suit; that the suit was compromised by the parties, for the purpose of having the matters in dispute submitted to arbitration; that no order of re-delivery was made by the court, and that Mrs. West did not deliver the wood to Crawford, but that after the dismissal of the suit the defendant, in order to aid Crawford, and with a full knowledge of all the facts, bought the wood of Crawford, and paid him for it, and denied the right of Mrs. West to it. There was a further averment that Mrs. West hauled the wood to the railroad, and paid for the same.

Evidence was introduced on both sides tending to prove the respective issues. There was a verdict for plaintiff.

During the trial Mrs. West was admitted to testify, after her intermarriage with Charles, and she was objected to as being incompetent. The objection was overruled. We see no error in this decision of the court. The suit was instituted in her name, she continued a party to the record, and therefore was a competent witness.

In the course of the cross-examination the defendant's counsel asked her if she desired to recover the whole value of the wood, which the defendant was charged with taking, without making any allowance for cutting and hauling done by Crawford, and she answered that she thought she ought to recover the full value of the wood. Immediately upon this answer being given, plaintiff's counsel propounded this question: “If you should get all you have sued for, would it pay you for all the damage Crawford has done your land, in cutting the timber on it.” Defendant at the time objected to the question, but the court permitted the witness to answer it, when she said that it would not. The question was certainly illegal. It is insisted, however, that as defendant's question, immediately preceding, to the witness as to whether she desired to recover the full value of the wood, without regard to Crawford's cutting and hauling the same, was also illegal, that thereon plaintiff had the right to ask the last question objected to. Both questions were improper and should have been excluded, and because an illegal or improper question is asked and answered, it will not justify another that is equally obnoxious or objectionable. But the...