Atchison, Topeka & Santa Fe Railroad v. Wilkinson

The opinion of the court was delivered by Horton, C.' J. : Upon the trial the plaintiff below was permitted to testify to the amount of damages [85] caused to lier dress and other articles described in the account sued on. This evidence was objectionable and should not have been received. A witness is not permitted to state his or her opinion with reference to the damages to be recovered. (Railroad Co. v. Muller, 45 Kas. 85-87 ; Railroad Co. v. Kuhn, 38 id. 676 ; Railroad Co. v. Ross, 40 id. 605.) The admission of this evidence is conceded to be erroneous, but it is claimed that it was cured because Mrs. Cooper, a dressmaker, testified properly as to the value of the articles sued for. The evidence improperly admitted was material, and we cannot say from the record that it was not prejudicial. Again, it was error for the trial court to permit the plaintiff below to testify to the statements made by Mr. Walsh, the baggage agent of the railroad company, concerning alleged statements of the bag-gagemen to him about the trunk. (Tennis v. Rapid Transit Rly. Co., 45 Kas. 503; Adams v. H. & St. J. Rld. Co., 74 Mo. 553, 556 ; Wellington v. B. & M. Rld. Co., 33 N. E. Rep. [ Mass.] 393 ; Carroll v. E. T. V. & G. Rly. Co., 41 Am. & Eng. Rld. Cas. 307, 310, 311; N. H. Rld. Co. v. May, 27 id. 152, 153 ; Hough v. Doyle, 4 Rawle, 291, 294 Luby v. H. R. Rld. Co., 17 N. Y. 131; Pa. Rld. Co. v. Brooks, 57 Pa. St. 339, 343.) The declarations of the baggagemen, unless they constituted a part of the res gestae, do not bind the company. The bill of particulars contains a verified account, but the court seems to have treated the case on the trial as an action to recover damages occasioned by a tort. A party may waive a tort and sue on an account for the value of articles taken, or which in some way have been of benefit to the defendant; but where goods have been damaged and retained by the owner, if he [86] wishes to recover damages, he must bring his action for the tort or wrong by which the goods were injured. The judgment will be reversed, and the cause remanded for a new trial. All the Justices concurring.