Fountain v. Wabash R. Co.

• Decision Date: 06 November 1905
• Citation: 114 Mo. App. 683,90 S.W. 395
• Parties: FOUNTAIN et al. v. WABASH R. CO.
• Court: Missouri Court of Appeals

90 S.W. 395

114 Mo. App. 683

FOUNTAIN et al. v. WABASH R. CO.

Kansas City Court of Appeals. Missouri.

November 6, 1905.

APPEAL—HARMLESS ERROR.

Allowing a witness in an action against a carrier for delay of a day in transporting cattle to read a telegram from the commission merchant who sold them, stating the amount that the market declined during the day prior to arrival of the cattle, cannot be held harmless error.

Appeal from Circuit Court, Boone County; John A. Hockaday, Judge.

Action by R. M. Fountain and others against the Wabash Railroad Company. Judgment for plaintiffs. Defendant appeals. Reversed.

Geo. S. Grover and N. T. Gentry, for appellant. Thomas S. Carter and Gillespy & Conley, for respondents.

JOHNSON, J.

This case is a sequel to Fountain et al. v. Wabash R. Co. (No. 7,205, decided at this term, 90 S. W. 393). The action is for the recovery of damages alleged to have been sustained as the result of defendant's negligent delay in transporting 77 head of cattle shipped by plaintiffs from Sturgeon, Mo., to the stock yards at Chicago. By reason of the delay, the stock could not be placed on the market for sale until the day after that on which they could have been sold had they been delivered in a reasonable time, and, as the market declined, plaintiffs claim to have sustained a loss on that account, as well as from the loss of weight suffered by the cattle in being kept so long in transit. A trial resulted in a judgment for plaintiffs.

We observe but one error in the record. To support the contention that the market did decline, to plaintiffs' detriment, one of the plaintiffs as a witness was permitted, over defendant's objection, to state the contents of a telegram received by him from the commission firm that sold the cattle for plaintiffs. The information conveyed in the telegram was to the effect that the market value of such stock depreciated during the day in question some 10 or 15 cents per 100 pounds. For the reasons given in our opinion filed in the other case, we must hold this to be harmful error. Evidently, plaintiffs thought it would influence the verdict of the jury, else they would not have insisted upon its admission against the objection of their adversary. We must assume that it was not without the intended effect, and, as we have no means of determining the extent of its influence, the only way open for the correction of the error lies in the remanding of the case for a new trial. Accordingly, the judgment is...