Cresswell v. Leftridge
| Citation | 194 S.W.2d 48 |
| Decision Date | 22 April 1946 |
| Docket Number | 6589 |
| Parties | CRESSWELL v. LEFTRIDGE et al |
| Court | Court of Appeal of Missouri (US) |
'Not to be published in State Reports'.
W. A Brookshire, of Columbia, and Alvin Goldman, of St. Louis, for appellant.
Samuel Richeson, of Potosi, for respondent.
BLAIR
This is a suit for damages for the conversion of two steers, two heifers and one red cow by M. S. Cresswell, as plaintiff against Dan Leftridge, Leo Hardy and Leo Hardy Live Stock Commission Company, as defendants. The petition was filed November 6, 1943, in Washington County. The answer of defendants, filed in Washington County on March 6, 1944, was a general denial. The venue was afterwards changed to Iron County and the case was tried before a jury, commencing on October 10, 1944.
After hearing plaintiff's testimony, the plaintiff dismissed the case as to the Leo Hardy Live Stock Commission Company and, after the overruling of the separate demurrers to the evidence of defendants Leftridge and Leo Hardy, the said defendants stood on the testimony of the plaintiff. After giving the jury certain instructions and hearing the arguments of counsel, the jury returned a verdict in favor of plaintiff and against defendants Leftridge and Leo Hardy in the sum of $ 500, and judgment was thereafter rendered against both.
In due time, defendant Leftridge filed his separate motion for new trial and defendant Leo Hardy filed his separate motion for new trial. On April 9, 1945, both motions for new trial were overruled. On April 18, 1945, defendant Leo Hardy gave his separate notice of appeal. Defendant Dan Leftridge seems not to have appealed, and his case need not be further noticed. On July 6, 1945, defendant Leo Hardy filed his transcript in this Court. The case came on for hearing before the Court sitting at Poplar Bluff and was submitted on briefs of respondent and appellant Hardy, without oral argument, and is thus before this Court.
Plaintiff Cresswell testified that he owned fifteen head of cattle on November 5, 1943, running at large on the range mostly around Potosi on the McGregor farm, and that he had seen them on several occasions, the last time about November 5th, and that he saw part of them on November 7th, when five head were missing. He described the missing cattle, being the same ones mentioned in the petition, and testified that they were worth around $ 500. He never saw the missing cattle again.
At the office of the Washington County prosecuting attorney, when Dan Leftridge was under arrest on November 6, 1943, charged with stealing these cattle, Cresswell testified that Leftridge said that he raised the cattle himself and had 'wintered them on the range on the McManus' bottom and McGregor field and hauled the hay from St. Louis in his car and wintered them with three bales of hay.' He at no time admitted that the cattle he sold were the same cattle that plaintiff owned. Leftridge said that he had shipped some cattle to St. Louis, which he had raised himself. On cross-examination, plaintiff testified as follows:
' The question is read to the witness by the Reporter.
'The Witness: No, sir.
'
'
Plaintiff introduced a number of witnesses whose testimony tended to show that they had no knowledge that defendant Leftridge ever had any cattle.
Jesse Walsh testified that he helped Leftridge drive in some cattle, but did not know to whom the cattle belonged, nor as to their color, nor how many there were of them, nor what became of the cattle, and was paid for his work by Leftridge.
Fred Gibson testified that, on November 5, 1943, he took Leftridge part of the way to the home of one Boyster, who was a farmer and dealt in live stock. It seems that Leftridge was unsuccessful in getting Boyster to haul his cattle and told Gibson on the way back to Potosi that he wanted to get a truck to take his cattle to St. Louis and witness took Leftridge over to Cook's, about nine miles from Potosi. Not succeeding in getting Cook to haul the cattle, witness took Leftridge to see a Mr. Ross. Leftridge then said, 'You can go on back to town, I will go with Mr. Ross.' Gibson never saw the cattle and asked no questions as to where they came from.
Walter Boyster testified that, on the night of November 5, 1943, Dan Leftridge came to him and wanted him to haul some cattle and that he refused to haul them.
Charley Ross testified that Leftridge came to his home about 3 o'clock in the morning on Saturday and that he got some cattle in the stock pens at Potosi and hauled them to St. Louis for Leftridge. He took them to defendant Leo Hardy and left them in care of the man in charge of the pen. He did not say that he even delivered the cattle to defendant Leo Hardy, and Exhibit 'A' merely shows that five head of cattle were sold on November 8, 1943, for M. D. Leftridge by the Leo Hardy Live Stock Commission Company, which was an original defendant and dismissed by plaintiff. This is all of the mention of Leo Hardy by any witness in the case. He did not say how many of the cattle there were, other than he said that it was not a full load. He did not know where the cattle came from and he could not describe them further, other than there were some red cattle.
John Eversole testified that he was prosecuting attorney of Washington County and that he was present and heard Leftridge say that they were his cattle and that he had raised them. About all there was in this witness' testimony was the reason he had not tried the criminal case against Leftridge in Washington County.
Thomas Allen testified...
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