Wurmser v. Frederick , 62 Mo. App. 634 ( 1895 )

GriLL, J.

In October, 1892, plaintiff, Wurmser, sold certain household furniture to one W.' D. Smith, who paid a portion of the price and gave to Wurmser a chattel mortgage on the goods to secure the balance. The mortgage was in the usual form and was acknowledged and recorded. In the January following, defendant, Frederick, sued Smith in attachment, and went with and directed the constable to levy on the mortgaged goods. The furniture was taken into the custody of the officer, subsequently sold, and the proceeds applied to the satisfaction of Frederick’s judgment ¿gainst Smith. These facts thereafter coming to Wurmser’s knowledge (and Smith, too, having defaulted), he sued Frederick before a justice of the peace, for a conversion of the property. On a trial in the circuit court, where the ease was taken by appeal, plaintiff had judgment for $25 and defendant appealed.

At the trial, one of plaintiff’s witnesses (a clerk in the store from which the goods were sold) was permitted to use some photographs, in explaining to the jury the description and quality of the furniture in dispute. They were pictures of the same patterns of furniture as those in controversy, though not of the identical goods. Defendant objected to this character of evidence, and the court’s ruling thereon furnishes the principal matter of complaint here.

Even if technically erroneous, it was a matter of such little consequence that we should not, for that reason, feel warranted in reversing the judgment. But we think the ruling was not error. The use of photographic pictures in elucidating and explaining oral evidence is now generally approved by the courts. In the description of persons, places or things, they are often •called in to aid the use of words. The witness may be unable to portray in definite, intelligible language the idea intended to be conveyed to the jury; and hence, photographs, maps, plats or diagrams may, and often do, serve to impart a clearer idea of what the witness-may have in mind. And so in this case, the party testifying as to the nature and description of the goods in controversy was correctly allowed to use the photographic pictures (which he said correctly represented, the articles) to advise the jury with more precision than he was otherwise able to do. In point, consult: Bradner on Evi., sec. 28; Underhill on Evi., p. 59, etc.; 18 Am. and Eng. Encyclopedia of Law, 424.

The objection to the sufficiency of plaintiff’s complaint filed before the justice is entirely without merit. It was sufficient even had the cause been brought in the circuit court, where the ordinary rules of pleading are to be applied. There was included in the statement such allegations of fact as made the defendant guilty of a wrongful conversion of plaintiff’s property. It was-immaterial that the goods were, in fact, taken into possession by the constable and not by defendant, since he-secured the writ of attachment and directed the constable to make the levy. The goods were seized in pursuance of defendant’s order and taken away by his express direction. The defendant was then a party to the trespass, and, equally with the officer, responsible therefor. The instructions were entirely fair to the defendant,, and the evidence warranted the verdict.

Perceiving no error in the record, the judgment will be affirmed.

All concur.