Taylor v. St. Louis & H.R. Co.

• Decision Date: 04 December 1923
• Docket Number: No. 17984.,17984.
• Court: Missouri Court of Appeals
• Parties: TAYLOR v. ST. LOUIS & H. R. CC.

256 S.W. 499

TAYLOR v. ST. LOUIS & H. R. CC.

No. 17984.

St. Louis Court of Appeals. Missouri.

December 4, 1923.

Appeal from Circuit Court, Pike County; Edgar A. Woolfolk, Judge.

"Not to be officially published."

Action by Higgins Taylor against the St. Louis & Hannibal Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Hostetter & Haley, of Bowling Green, for appellant.

Pearson & Pearson, of Louisiana, Mo., for respondent.

DAVIS, C.

Plaintiff instituted suit in the circuit court of Pike county for the loss of household goods delivered to defendant on August 20, 1920, to be carried from McCune Station in Pike county to Louviers, Colo., which defendant never accounted for. From a verdict and judgment for plaintiff for $540, defendant appeals.

The only assignments of error relate to the competency of the evidence of Claude Taylor and Higgins Taylor as to the market value of the goods. Defendant's specific objections are as follows:

The court erred:

First. (a) In holding that Claude Taylor was properly qualified to testify as to the value of the articles in controversy at McCune Station, Mo., as of August, 1920. (b) In admitting' his testimony as to the value of the feathers in the beds, when it is disclosed that he had no knowledge of the kind of feathers or the condition of the feathers contained in the ticks. (c) In admitting his testimony as to the value of the dishes, when he admitted he never counted them nor knew their number; the same error is assigned as to the cooking utensils, clothing, picture frames, etc.

Second. In admitting the testimony of plaintiff, Higgins Taylor, as to the value of the goods at McCune Station in August, 1920, as it was apparent he did not know and could not know their condition, their number, or the market conditions at that time or niece; and the court erred in holding that he was qualified to testify on the subject-matter of values.

I. We will first discuss the second assignment of error, and, in so doing, a short statement of facts is called for.

Plaintiff moved to Colorado in December, 1918, leaving his household goods in his locked-up farmhouse in Pike county. Later he requested his brother, in Pike county, to forward some of his chattels to him to Louviers, Colo. He then describes the goods left by him at home, among them the articles sued for. After he left for Colorado, he never again saw the goods shipped to him, except in the spring of 1919 on a short visit to Pike county, which the evidence shows was delivered to defendant on August 20, 1920. He returned to his home, near McCune Station, in March, 1921. In answer to a question as to the value of these articles along about August, 1920, and in and near McCune Station, plaintiff said:

"I don't know at that time in or near McCune Station, I was in Colorado at that time, but I judge the price wasn't so much different. "Q. Do you know the market value of these articles, did you know at that time? A. Yes, air."

This is an interstate shipment. Under the common-law rule there was no uncertainty as to the time or place of estimating value—it was the destination. Chicago, M. & St. P. Ry. Co. v. McCaull-Dinsmore Company, 260 Fed. 835, 171 C. C. A. 561. Defendant's abstract does not set out the bill of lading in full, and there is nothing before us showing that the damages were to be estimated at point of shipment, and had there been, it would have been of no avail under the Carmack Amendment (U. S. Comp. St. §§ 8604a, 8604aa). Chicago, M. & St. P. Ry. Co. v. McCaull-Dinsmore Co., 253 U. S. 97, 40 Sup. Ct. 504, 64 L. Ed. 801. We construe the evidence as showing that plaintiff stated he knew the market value of the goods in Colorado as of about August 20, 1920, the destination of the goods. His testimony was then in accord with the common-law rule. His evidence further tended to show that he removed to Colorado in December, 1918, remained there less than two years, and returned to his former home about six months after the loss of the goods. After stating that he knew the market value of the goods, he proceeded to give their reasonable value. His brother had therefore stated the contents of the lost shipment which he had packed. The court could not have refused this evidence, as the owner of the goods, by reason of his relationship to them, was prima facie qualified to speak regarding their value. 17 Cyc. 113; Willison v. Smith, 60 Mo. App. 469; State to Use v. Johnson, 1 Mo. App. 219; Fry et al. v. Estes, 52 Mo. App. 1; Bowne v. Ins. Co. Company, 46 Mo. App. 473; Matthews v. Railroad, 142 Mo. 645, loc. cit. 666, 44 S. W. 802; Union Elevator v. Railroad, 135 Mo. 353, loc. cit. 376, 36 S. W. 1071; Tate v. Railroad, 64 Mo. 149, loc. cit. 153. Nor do we think his sojourn in Colorado disqualified him from speaking as a witness relative to the value of the goods at McCune Station. The time was not too remote. Again, defendant, in cross-examining plaintiff, elicited the purchase price of the dishes, sewing machine, rug, cooking utensils, and overcoat, which, in connection with the other evidence, was some value of the goods. We think plaintiff was a competent witness as to the value of his goods, either at point of destination or point of shipment. Defendant tried the case on the theory that the value of the goods were to be estimated at point of shipment, and is bound by its theory. Defendant contends that plaintiff did not know and could not know the condition of the goods....