Evans v. St. Louis

• Citation: 16 Mo.App. 522
• Parties: A. M. EVANS, Respondent, v. ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY, Appellant.
• Decision Date: 10 February 1885
• Court: Court of Appeal of Missouri (US)

16 Mo.App. 522

A. M. EVANS, Respondent,

v.ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 10, 1885.

APPEAL from the St. Louis Circuit Court, HORNER, J.

Reversed and remanded.

H. G. HERBEL and BENNETT PIKE, for the appellant.

R. W. GOODE and E. A. B. GARESCHÉ, for the respondent.

ROMBAUER, J., delivered the opinion of the court.

The plaintiff is a locomotive engineer. He sued the defendant, a railroad corporation, for wages alleged to be due to him. The action was instituted before a justice of the peace, where plaintiff obtained judgment by default for $141.62, the whole amount claimed. Upon trial in the circuit court, it appeared by the testimony that plaintiff was first employed to run a locomotive on mileage terms, and that subsequently on or about December 10, 1881, he was put in charge of a consolidated engine, as he claims on a hiring from month to month, and monthly wages of $115, and as defendant claims on a hiring for an indefinite period at a compensation at the rate of $115 per month. He was discharged without just cause, as he claims, and for just cause, as defendant claims, on the 23d of December, 1881.

The main controversy between the parties was as to whether the contract of hiring was, as plaintiff claimed it to be, or was as defendant claimed it to be.

While the case was pending on appeal in the circuit court, the plaintiff called upon defendant and received from its paymaster $54.60, executing at the time a receipt, of which the following is a copy:--

“St. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY,

TO A. M. EVANS.

DR.

[St. Louis Division.]

For services as engineer under the direction of______on St. L. D., as returned on roll record, No. 40, check No. 245, and registered in the office of the general auditor, in the month of January, 1882, 17 3/4 days at $-- say doll. /100 per day; amount

$67 35

Less board bill

12 75

Amount due

$54 60

I certify the above to be a correct transcript from the roll above named, and that the same remains unpaid.

J. T. K. ______, Clerk,

General Auditor's Office.

Dated 7, 26, 1882.

Received of the Missouri Pacific Railway Company the sum of fifty-four 60-100 dollars ($54.60-100) in full for the above amount.

A. M. EVANS.

Witness: A. C. BATES.”

The signature alone was plaintiff's, the residue of the account and receipt, being prepared by defendant's officer. Plaintiff testified that he did not read the receipt when he signed it, that he told the person who paid him the money that it was not all that was due him, and that he never authorized the deduction of his board bill from his wages.

The fact that plaintiff had executed this receipt appeared in his cross-examination, and before he closed his case, and the defendant thereupon demurred to the evidence.

The court overruled this demurrer, and we think committed no error in doing so. The paper contains no elements of a release, and while evidence as an admission, is not conclusive evidence. On the main controversy, that is, the terms of the hiring, and the cause of plaintiff's discharge, the plaintiff's case was supported by his own testimony alone. That testimony was contradicted by some of defendant's witnesses, but not in direct terms. There was nothing in the testimony of either side which could justify the trial court to assume that any of the witnesses were wilfully disregarding the truth. The plaintiff admitted that he ran his engine faster, on some occasions than the regulations permitted, and also that he was drinking while on duty, but denied that he ever drank to excess, and the testimony of the defendant's witness on these points was not much different from his own. As to the contract of hiring, which was admitted to have been oral, the main controversy was as to whether certain words were used in the conversation. This being the character of the testimony the court among others gave the following instructions to the jury, on behalf of plaintiff, against defendant's objections:--

“2. The court instructs the jury that if they believe from the evidence that any witnesses had testified falsely as to any material fact in this cause then they are at liberty to disregard the whole of the testimony of said witnesses.

4. The court instructs the jury that if they believe from the evidence that plaintiff was hired by the defendant as a locomotive engineer by the month, and that defendant agreed to pay plaintiff $115 per month for his services as locomotive engineer, then plaintiff is entitled to recover, and they may find in favor of plaintiff in such sum as they may believe from the evidence to be due him.”

The jury rendered a verdict for plaintiff for $97.51, being the amount as claimed by him, less the $54.60 received and receipted for, and the court entered judgment upon the verdict and overruled defendant's motion for new trial and in arrest of judgment.

The defendant, among other things, now complains of the action of the court in giving plaintiff second and fourth instructions. The form of the second instruction is admitted to be incorrect, but plaintiff contends that it was a harmless error.

Instructions telling the jury that they...