Wrightsman v. Herrick , 130 Mo. App. 266 ( 1908 )

GOODE, J.

Plaintiff sued to recover the value of a box of household goods, chiefly bedclothing, alleged to have been lost by defendant. The goods were shipped by plaintiff from Ozark, Missouri, to Springfield, Missouri, over the St. Louis & San Francisco Railroad Company, consigned to defendant, who was to store them until called for by plaintiff. The lost box was one of three, the other two having been accounted for by defendant. In the first instance the plaintiff instituted an action against the railroad company for the loss of the box, believing it never had been delivered by the railroad company to defendant. But before said cause came to trial, plaintiff’s attorney, having ascertained facts which convinced him the box was delivered by the railroad company to defendant, dismissed the cause and instituted the present action. At the trial defendant’s counsel offered in evidence the pleadings in the abandoned case against the railroad company. These pleadings were objected to and especially the answer of the railroad company, as not containing admissions against interest by plaintiff and bence incompetent. Tbe objection was overruled, an exception saved, tbe answer admitted and this ruling is assigned for error on tbe appeal. We know of no theory on wbicb it was admissible, as it was an adverse pleading filed against the plaintiff by a party she bad sued. Its averments would not constitute admissions against interest by tbe plaintiff. [Stevens v. Crane, 116 Mo. 408, 22 S. W. 783.] It is on tbe theory that it contains admissions against interest that an abandoned pleading is received in evidence against tbe party who filed it. [Walser v. Ware, 141 Mo. 443, 464, 42 S. W. 928.]

We have been in some doubt as to whether tbe aver-ments in the answer of tbe railroad company could have influenced tbe jury against plaintiff. Said answer contained a general denial wbicb, in denying tbe railroad company ball ever received tbe box, was favorable to tbe plaintiff’s present action. But tbe denial was followed by a special plea founded on tbe bill of lading and providing that in case of loss of any of tbe property, tbe value of tbe contents of tbe lost box should be fixed at $5 per hundredweight and no more. Tbe railroad company set up this clause of tbe bill of lading and followed it by an averment that if tbe box was not delivered by tbe company to Herrick, the defendant in this suit, plaintiff should be limited in her recovery against tbe railroad company to $5 a hundredweight, or $10 in all, it being alleged tbe bo¡x only weighed two hundred pounds. As a whole tbe answer was of such a nature as to support the contention of Herrick in tbe present case, that tbe railroad company never delivered tbe box in controversy to him, which is tbe gravamen of bis defense.

The judgment is reversed and tbe cause remanded.

All concur.