Southern Express Co. v. Wolfe , 41 Miss. 79 ( 1866 )

Handy, C. J.,

delivered the opinion of the court.

This was an action brought by the defendant in error against the Express Company to recover the value of a trunk and its contents, placed in charge of tbe company, as common carriers, to be delivered at Jackson, and which was not delivered, but lost.

The principal ground of error relied on by tbe plaintiff in error is tbe following instruction given for tbe plaintiff:

“ In a case of this sort, plaintiff is not required to specify all tbe articles contained in bis trunk. He may state bis general recollection of tbe contents of bis trunk and his estimated value thereof; and if the allegations of value be not disproved by other evidence in tbe cause, plaintiff’s statement should be relied on.”

The only testimony in tbe record, as to the contents of tbe trunk, was that of tbe plaintiff himself, who testified, in substance, that be could not say exactly everything that was in the trunk, but he specified a number of articles of wearing apparel and one pistol; stated that the trunk was packed right full of clothes, and contained many articles which he could not then remember. It was a large sole-leather trunk, not much used, and cost him six dollars. He would estimate the value of the trunk and contents at $300 in United States currency. The clothes were good and had not been much injured by use, and many of the articles had been worn only on special occasions. Most of the clothes were bought about 1859. A. Yirden testified that clothes were scarce and high in February, 1863. Bloom and Lemly testified as to the value of articles of clothing of the kind specified by the plaintiff in his testimony, and stated the prices at which such articles, if new, could have been purchased in Jackson; and it appears that, according to the prices stated by them, all the articles specified by the plaintiff as contained in his trunk, would have cost in Jackson about $128 or $130' in Confederate money, which, compared with United States currency (greenbacks), was worth $1.50 of the former for $1.00 of the latter — which would make the value of the articles, so far as specified by the plaintiff, about $85.

It is now insisted that the verdict — which was for $238.17— was contrary to the evidence, and that this result was produced by the instruction above stated.

"We think the objections to the instruction are well taken. It directs the jury that the plaintiff was not required to specify all the articles in the trunk, but might state his general recollection of its contents and his estimated value. Thus far the instruction was proper; but it proceeds to state, that, if the allegations of value be not disproved by other evidence in the case, his statements should be relied on. This was requiring an impracticable thing of the defendant; for the contents of the trunk were not specified in full by the plaintiff, and so far as they were specified, they appear to amount to not more than one-third of the whole value stated by him. It must necessarily have been impracticable for the defendant to disprove the correctness of the estimate of articles stated by the plaintiff’ when the articles for the most part were not enumerated, and were unknown to the defendant. And under such circumstances, the jury were further instructed, that the plaintiff’s allegations of value, if not disproved, should be relied on. This part of the instruction was well calculated to mislead the jury, and indeed it directed them that they must take the plaintiff’s estimate as true. In this respect, it was not in in accordance with the statute allowing parties to be witnesses in their own behalf.

The statute provides that, in such cases, the court or jury shall “ give such weight to the testimony of parties or interested witnesses, as in view of the situation of the witness, and other circumstances, it may be fairly entitled to.” Rev. Code, 510, art. 190. It should have been left to the jury to give such weight to the plaintiff’s general estimate of the value of the trunk and its contents as they thought proper, under the circumstances. But the court directed them that they must rely on such statement; which can only mean that they must take it as true.

Eor this error the judgment must be reversed, and a new trial awarded.