Cook v. St. Louis & Keokuk R.R. Co.

• Citation: 56 Mo. 380
• Court: United States State Supreme Court of Missouri
• Decision Date: 31 March 1874
• Parties: JAMES F. COOK, Respondent, v. THE ST. LOUIS & KEOKUK RAILROAD COMPANY, Appellant.

56 Mo. 380

JAMES F. COOK, Respondent,

v.THE ST. LOUIS & KEOKUK RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Louis Circuit Court.

E. A. Lewis, for Appellant.

E. B. Sherzer, for Respondent.

SHERWOOD, Judge, delivered the opinion of the court.

Action on contract. The petition alleged that defendant had employed plaintiff as its civil engineer, at a salary of $300 per month; that plaintiff was in defendant's employ in such capacity from the twentieth day of August, 1869, until the first day of May, 1870, a period of eight months and ten days, and that the compensation plaintiff was entitled to therefor was $2500, for which judgment was asked.

The answer denied that defendant ever employed plaintiff as civil engineer, or in any other capacity at $300 per month, or any other sum; denied that it agreed to pay him said sum or any other sum for his services; denied that it employed plaintiff to do any work or labor for it whatsoever, and denied that plaintiff did any work of labor for it, or was in its employ at all.

A jury was impaneled, and the parties went to trial. The evidence was conflicting, would have well warranted a verdict for either party. The instructions given presented the matters at issue with the most unexceptionable fairness to the jury, and the result was a verdict for the plaintiff. There exists, as appears from the above statement, no tenable ground for attacking the ruling of the court below in point of instructions given in behalf of plaintiff, nor of the refusal to give the third instruction asked by the defendant, even if that instruction were abstractly correct, and otherwise free from just objection.

But the chief, and it might with no impropriety be said, the only question of practical importance in this case, and the one upon which counsel for appellant has laid the greatest stress, is, whether the ruling was correct which denied defendant's motion for a new trial, the main basis of such application being newly discovered evidence.

In reference to applications based on the above mentioned ground, coming as they must from those who have been made to bite the dust in the forum, and are writhing under the tortures of a recent and unaccepted defeat, it is to be observed that they are regarded with a jealous eye, and construed with remarkable strictness by the courts, who invariably hold, that they should be tolerated, not encouraged, viewed with aversion rather than favor, granted as an exception, and refused as a rule. (3 Grah. & Wat. N. T., 1021, and cases cited; Richardson vs. Farmer, 36 Mo., 35, and cases cited; State vs. Ray, 53 Mo., 345, and cases cited.)

The alleged newly discovered evidence consisted of an account for $55.25, made out and delivered in November, 1869, to Fogg, then president of defendant, by plaintiff, for making a report on the two surveys from Bowling Green, in Pike county, to New London, in Ralls county, as well as for making the profile of those routes, and supplying the mapping paper for that purpose.

This account, which is certainly inconsistent with the idea of a general or salaried employment, and is in reality an indirect admission that plaintiff's contract with the company was of a special and limited character, remained in Fogg's hands until his resignation in September, 1870, when he delivered to Murray all the official papers in his hands. In the absence of anything in the affidavits to the contrary, as no intendments run in their favor, it will be presumed that Murray was an officer or agent also of the company. At any rate, the above referred to account was found accidentally, as it is claimed, on the 22nd day of February, 1872, just six days after the trial took place, in the possession of the company among its other business papers, where, from aught otherwise appearing, it had been ever since its delivery to Fogg. The suit was brought February 13, 1871; issue joined April, 5th, next following, and the trial occurred nearly a full year after process served.

Fogg was placed on the stand and testified in the cause, but his attention was not called to the account, and yet it is by him that defendant proposes to prove that such account was delivered to him by plaintiff; and without Fogg's testimony, this...