Shahan v. Lusk

• Citation: 190 S.W. 43
• Decision Date: 16 December 1916
• Docket Number: No. 1741.,1741.
• Parties: SHAHAN v. LUSK et al.
• Court: Court of Appeal of Missouri (US)

190 S.W. 43

SHAHAN v. LUSK et al.

No. 1741.

Springfield Court of Appeals. Missouri.

December 16, 1916.

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Action by Hamid Shahan, by next friend, R. S. Hamra, against James W. Lusk and others, receivers of the St. Louis & San Francisco Railroad. Judgment for plaintiff, and defendants appeal. Affirmed on condition that plaintiff remit one-half thereof; otherwise, to be reversed and remanded.

W. F. Evans, of St. Louis, and Moses Whybark and A. P. Stewart, both of Cape Girardeau, for appellants. Sam J. Corbett, of Caruthersville, for respondent.

ROBERTSON, P. J.

The plaintiff's mule and mare wandered upon defendants' railroad track and were killed by a passing train. At this point defendants were required by section 3145, R. S. 1909, to, but did not, fence their right of way. Plaintiff sued, and a jury trial resulted in a verdict in his favor for $250. The court, under the statute, doubled the amount and entered judgment accordingly. The defendants have appealed, and urge that the court admitted improper testimony and that the jury doubled the amount the proof showed the animals to be worth, and that therefore this judgment should be reversed and the cause remanded, unless plaintiff will remit one-half of it. If the testimony admitted without objection shows any value, it unquestionably does not show more than $125; $50 for the mare and $75 for the mule.

We shall refer to the testimony that is relied upon to show a value in excess of $125 for the team. The plaintiff, an Assyrian, a peddler traveling over the country, and who testified through an interpreter, said that he bought them about one year before they were killed. The mare was blind in one eye. He was asked if he knew what the market value of this team was on the date it was killed. The answer was that they were worth $300 if he wanted to sell them. The court on motion of defendants struck this out. Then plaintiff proceeded to testify that he could get, and would not take less than, $300. After the plaintiff had given this testimony attempting to show the market value of the animals, the trial court, who saw the witness and heard him testify, remarked in the presence of the jury, and in ruling on defendants' objection: "He doesn't know what the market value means." Plaintiff was then asked what he paid for them, and he answered, over defendants' objection, $400.

When there is a market value, as in this case, it must control (Wagoner Undertaking Co. v. Jones, 134 Mo. App. 101, 108, 114 S. W. 1049, and cases there cited), and it must be such a value in the vicinity where and when the animals were killed (Warden v. Missouri, Kansas & Texas Ry. Co., 78 Mo. App. 664, 668).

What plaintiff gave for the team may have been some evidence of its value at the time and place of the purchase, but not at the time and place where killed. Miller v. Bryden, 34 Mo. App. 602, 607, and 608; Johnson & Co. v. Springfield Ice & Refrigerator Co., 143 Mo. App. 441, 452, 127 S. W. 692; Niemetz v. St. Louis Agricultural & Mechanical Association, 5 Mo. App. 59, 64; Grant v. Hathaway, 118 Mo. App. 604, 610, 96 S. W. 417. In the opinion in this last case it is held that proof of the amount paid eleven months before the time when the value must be fixed is no evidence upon that question.

The fact that the court was of the opinion the plaintiff did not know what the question as to the market value of the team meant was of itself no reason for dispensing with proof on that question.

We have referred to all of the testimony that was submitted to the jury and which has any bearing on the value of the team above $125, and as this testimony is of no probative force, and since error was committed in admitting testimony as above noticed, we must hold that the judgment on the record before us cannot be upheld for an amount exceeding $250, and, if plaintiff will within ten days...