Gordon & Koppel Clothing Co. v. New York Cent. R. Co.
| Decision Date | 14 June 1926 |
| Docket Number | No. 15702.,15702. |
| Citation | 285 S.W. 755 |
| Parties | GORDON & KOPPEL CLOTHING CO. v. NEW YORK CENT. R. CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.
"Not to be officially published."
Action by the Gordon & Koppel Clothing Company against the New York Central Railroad Company. From the judgment for plaintiff, defendant appeals. Reversed and remanded.
Marley & Reed, of Kansas City, for appellant.
Lebrecht & Kasper, of Kansas City, for respondent.
This is an action seeking to recover damages for a loss which plaintiff claims to have sustained on account of the failure of defendant, a "common carrier, to deliver all of the merchandise which was shipped over defendant's railroad from New (York City to plaintiff at Kansas City, Mo. There was a verdict and judgment for plaintiff in the sum of $603.59, and defendant has appealed.
The facts show that plaintiff, a retail clothing concern of Kansas City, Mo., purchased a bill of clothing from Samuel W. Peck & Co. of New York City; that the latter on September 3, 1921, shipped over defendant's railroad a box of clothing consigned to plaintiff, who claims a shortage in the amount thereof, occurring while the shipment was in the hands of defendant company. In order to prove this shortage, plaintiff introduced the depositions of two employés of Samuel W. Peck & Co., taken in the city of New York.
McCann, one of these employés, testified in his deposition that he had been employed by that company and its predecessor for 22 years in packing and shipping merchandise; that he recalled the shipment in question, and that it consisted of one case of men's and children's clothing; that he could not testify without refreshing his recollection as to what was in the case, but by the aid of a memorandum which was handed to him he was able to so testify and did so over the objection of defendant at the trial to the testimony and to the use of the memorandum. The witness testified that the clothing in question was handled by him as follows: The goods were brought to the shipping room in a basket containing a copy of the invoice covering the shipment, which paper had been placed therein by the billing clerk; that he then checked the goods and found the contents of the basket to correspond with the copy of the invoice; that he packed the goods in a box and nailed on the cover and secured the box by putting iron straps around it; that he properly addressed the box to plaintiff, and to the effect that it was delivered in this condition to the agent of the defendant. He further testified that the memorandum that he used to refresh his memory was not the copy of the invoice, but was what was described as a duplicate invoice which he received "from the regular shipping charge," and which was made from "the ledger sheets" of his employer. He testified that he did not have the ledger sheets with him; that the duplicate invoice was a copy of the ledger sheets; that he did not know when the duplicate invoice was made out, but that it was made later than the original invoice; that he checked the duplicate against the original invoice and found "lie former to be correct; and that he knew that it was a true copy of the invoice. Over the objection of defendant, the court admitted in evidence the duplicate invoices showing various items of clothing, the lot numbers and the price. The duplicate invoice was marked "Exhibit A," and was relied upon by plaintiff to establish the contents of the box at the time it was delivered to defendant.
The witness Jackson testified in his deposition that he had been employed by Samuel W. Peck & Co. and its predecessor for about 16 years; that he did not recall anything concerning the shipment of the goods in question; that he had nothing to do with this, but was acquainted with the value of merchandise which went into the manufacture of the goods bought and sold by the company; that he was acquainted with the model numbers of his employer; that he was unable to testify as to the reasonable value of said models of clothing from the numbers alone, but "from model numbers and piece goods numbers combined." He was then shown Plaintiff's Exhibit A and asked if he could testify as to the reasonable value of each of the items shown therein at the time in question, and he replied that he could not do so without referring to a "memorandum to refresh my memory." Asked if he had such a memorandum, he said, "Yes." He was then asked to turn to his memorandum and state as to the reasonable value of the various items shown upon Exhibit A, which he did. All of his testimony as' to the value of the merchandise and the use of the memorandum was objected to by ...
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