Stockwell Co. v. Union Pac. Ry. Co.

• Decision Date: 07 February 1916
• Docket Number: No. 11910.,11910.
• Citation: 182 S.W. 829
• Parties: STOCKWELL CO. v. UNION PAC. RY. CO.
• Court: Missouri Court of Appeals

182 S.W. 829

STOCKWELL CO. v. UNION PAC. RY. CO.

No. 11910.

Kansas City Court of Appeals. Missouri.

February 7, 1916.

Appeal from Circuit Court, Jackson County; D. E. Bird, Judge.

"Not to be officially published."

Action by the Stockwell Company against the Union Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Watson, Gage & Watson, of Kansas City, for appellant. Stewart Taylor and Percy A. Budd, both of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff's action is for damages alleged to have resulted in the negligent delay of shipments of live stock from one point in Kansas to another point in the same state. The petition was in four counts, and there was a judgment for plaintiff on each.

In making proof of damages witnesses for plaintiff were repeatedly allowed to state matters of which they had no knowledge, except what they learned from written statements made by others. In this respect the evidence was no more than hearsay, and should have been excluded. This evidence made up the very foundation of plaintiff's case, and should not have been admitted.

The reasons assigned for this are various, some that the statements were taken from books of original entries, and some that the witness, in using statements, was merely refreshing his memory. In Hess v. Railroad, 40 Mo. App. 202, the court said:

"The plaintiff offered, and the court admitted, over defendant's objection, the account of sales rendered to plaintiff by Mulhall & Co., commission men at St. Louis. This action of the court was clearly erroneous. It was the most obvious hearsay. It amounted to nothing more than a report, in writing, from plaintiff's agents, Mulhall & Co., to the effect that they sold the damaged cattle on the St. Louis market at the prices there named; that said cattle weighed as there stated, etc. Such a paper was incompetent as proof of such facts, and should have been rejected."

The case of Moore v. Railroad, 143 Mo. App. 675, 127 S. W. 921, was to same effect. See, also, Fountain v. Railroad, 114 Mo. App. 676, 90 S. W. 393.

Accounts of sales of cattle, their weight, etc., are frequently substantial and proper evidence, but the proper foundation should be laid before they are received. In this case the necessary showing was not made that books or accounts were kept; that the entries used were in the usual course of business, and "concomitantly made with the happening of the facts recorded." Lyons v. Corder, 253 Mo. 539, 548, 162 S. W. 606, 608; Borgess Inv. Co. v. Vette, ...