Sparr v. Wellman

• Decision Date: 31 October 1847
• Citation: 11 Mo. 230
• Parties: SPARR & GREEN v. WELLMAN.
• Court: Missouri Supreme Court

11 Mo. 230

SPARR & GREEN

v.WELLMAN.

Supreme Court of Missouri.

October Term, 1847.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

FIELD, for Appellant.

1. The court below arbitrarily excluded from the jury important statements made by the witness Crenshaw, on cross-examination. 2. The court prevented the defendant from putting a proper and important question to the same witness on cross-examination. 3. The court permitted the plaintiff to testify in his own cause, contrary to the long established maxim of the law. 4. Nor was this last error cured by the judge, telling the jury to disregard the evidence; for who can say what effect it had on their minds? besides, what regard would a jury probably pay to such an injunction of the judge, when he had but a little while before in the same trial decided the evidence to be legal and proper? 5. The instruction given by the court is clearly wrong, for it in effect tells the jury that the defendants were liable though the loss might be occasioned by the plaintiff's own default or negligence. 6. The same instruction is erroneous in declaring that defendants were liable by law to the payment of interest on the value lost. This rested purely in the discretion of the jury, and they should have been informed that they might give interest or not. 7. The court erred in refusing the first instruction asked by defendants for as the burthen of proof was on the plaintiff, he certainly was bound to satisfy the jury that he was not robbed by his own associates, or with his own connivance. 8. In refusing the defendants' second instruction, the court committed the same error as in the cross-examination of Crenshaw. The judge seemed to think that the ideas communicated by a speaker are of no importance in estimating the value of a conversation in evidence. In effect, the learned judge by refusing this instruction, told the jury that what Sparr meant, or what the witness understood him to mean in their conversation, was not at all to be regarded by them. This was error See Hall v. Guthrie, 10 Mo. R. 621.STRINGFELLOW & WILLIAMS, for Appellee.

1. The witness Crenshaw could only testify as to facts--to the declarations of Sparr--leaving the jury to give to those declarations a construction. He could not give his inferences as to the source from whence the defendant derived his information, there being nothing said by defendant as to the source of his information. 1 Greenl. 414; 1 Starkie, title Witness. 2. If the evidence sought by defendants from the witness Crenshaw, was properly excluded, the instruction asked by defendants was properly overruled--there being no evidence before the jury on which to base the instruction. 3. The appellee was entitled to recover six per cent. on the amount lost. 4. The appellee was a competent witness to prove the articles stolen, the fact of the robbery having been proved aliunde. 1 Greenl. 348, 472 and notes; United States v. Murphy, 16 Peters, 203, and cases cited; Story on Bailments, 462, 477, 478, 480, 482, 483; 1 Starkie, 120. 5. The appellant cannot complain of the oral instruction of the court, as it was in favor of appellant.

NAPTON, J.

This was an action on the case brought to recover the value of certain property, alleged to have been stolen from the plaintiff whilst a guest at the inn of the defendants. The case was tried upon the general issue.

The plaintiff introduced a witness, Crenshaw, who stated, that in May, 1845, whilst he was collecting news for the “New Era,” a daily journal in St. Louis, he was informed that a robbery had been committed at the Virginia Hotel; that he went to said hotel to learn the particulars and arrived there about dinner time, where a considerable crowd was collected in the bar room; that he stepped up to Mr. Sparr, one of the defendants, and asked him if there had been a robbery at his house the night before; that Sparr answered in the affirmative, and turned to his register and gave him the names of the three persons robbed, among whom Wellman, the plaintiff, was one; and Sparr further said, that Wellman's room was entered, and he had been robbed of $180 in money and a fine gold watch. On cross-examination, this witness stated, that he had for some time been a collector of local news for the press --that the conversation with Sparr was hurried, and he believed Sparr knew at the time he was collecting news for the press. He stated further, that from nothing which took place at the time between himself and Sparr, did he infer that Sparr had any personal knowledge in regard to the robbery. This last statement was objected to, and excluded by the court, and an exception taken. The defendant then asked the witness, if said Sparr did not give him, the witness to understand, that what he, Sparr, stated about the robbery was the mere report of what the parties said to have been robbed, had told him. This question was objected to, and excluded and an exception taken. On examination by plaintiff, this witness stated, that Sparr told him that Wellman's room had been entered, and his money and watch stolen--this was said without qualification.

It was proved that when plaintiff called on Sparr to pay his board, Sparr remarked that his bill was seven dollars, but as he had been unfortunate in being robbed, he would only charge him five dollars.

The plaintiff then read Sparr's receipt for $5, for one week's board. The plaintiff then offered himself as a witness to prove the particular articles of which he had been robbed. This was objected to--but the court decided that he was competent to give evidence of the articles of which he had been robbed, but not to prove their value. An exception was taken on this point. Plaintiff then stated, that he was robbed of two fifty dollar bills on the Bank of Missouri, one twenty dollar bill, five ten dollar, and one five dollar bill on the Northern Bank of Kentucky, one double cased patent lever watch, which cost $140, a key and heavy gold guard-chain, that cost $40. On the morning after the robbery, he thought he had lost $180, and so told Sparr, but afterwards on reflection recollected that he had paid out $5. The plaintiff then proved the value of gold watches, &c.

The court instructed the jury, that “if the defendants were inn-keepers and the money and effects of plaintiff were stolen or otherwise illegally taken from his room, he being at the time a guest of defendants, they are liable for the money and effects so stolen or taken with six per cent. interest from the day of the loss.

The defendant asked the following instructions, which were refused: 1. The defendants are not liable, unless the plaintiff has given evidence of the circumstances of the alleged robbery, so far as to enable the jury to determine whether the same was committed by plaintiffs' servants or associates or others. 2. If the statements of Sparr to Crenshaw, were merely the repetition of information derived from the plaintiff, and not intended by him as an admission of the fact of robbery, the statements are no legal evidence of such facts.

Before the jury retired, the court told them to disregard the evidence given by the plaintiff as a witness, and decide the cause upon the other testimony. There was a motion for a new trial overruled, and the case was brought here by appeal.

The point which first presents itself on the record is the competency of the question propounded to the witness, Crenshaw; and in this connection, we will also consider the second instruction asked by the defendant.

It appears that the witness...