Hollicke v. Missouri Pacific Railway Co.

The opinion of the court was delivered by Mason, J.: J. F. Hollicke sued the Missouri Pacific Railway Company for its failure to deliver two boxes of goods out of a shipment of nineteen, made from Bison to Sedgwick. He recovered a judgment, from which the defendant appeals. 1. The failure to deliver the two boxes at Sedgwick was admitted, but the company maintains that they were delivered at Wichita, together with a shipment of six other boxes made by the plaintiff to that point from Bison at the same time. That [262] eight boxes were delivered at Wichita seems established, but the plaintiff insists that the two extra boxes must have been from some other shipment, and that at all events they could not have been the two boxes missing from the Sedgwick consignment, one of which contained men’s suits and the other underwear, while those delivered at Wichita contained shoes. The jury obviously accepted this theory. The defendant maintains that there was no evidence to support it. There was testimony tending to show that all the boxes bore labels showing their contents, that the missing boxes were larger than those containing shoes, that the extra boxes delivered at Wichita did not correspond to them in size, and that the persons who probably unpacked the boxes at Wichita did not remember that any of them contained underwear or men’s suits. The evidence on this phase'of the matter was very far from convincing, but is held to have been sufficient to warrant submitting the issue to the jury. 2. The plaintiff testified that one box contained underwear worth $83.87, and the other sixty-three men’s suits worth $12 each. There was no other evidence as to the value of the contents, but a number of witnesses testified that the plaintiff’s reputation'for veracity was bad. . The verdict and judgment were for $300. The defendant asks a reversal on the ground that there was no evidence whatever to support a finding of this amount. The rule is familiar that the party against whom a judgment is rendered may contest it on the ground that it is not supported by any evidence, although conceding that the evidenced would have warranted a judgment for a larger amount. (Hart v. Gerretson Co., 91 Kan. 569, 138 Pac. 595, and cases there cited; Smith v. Hanson, 93 Kan. 284, 144 Pac. 226.) In support of the verdict it is contended that the jury, while believing that the railway company had failed to deliver the two boxes, may reasonably have concluded that the plaintiff had overstated the quantity of goods they contained (there having been some difference in the testimony as to their size), or that the plaintiff, whose veracity the evidence tended to impeach, had exaggerated their value. A jury, of course, may believe a part of the testimony of a witness and reject the rest. And a finding of value may be upheld although no witness may have testified to the particular amount found. Here, however, all that was stated concerning the goods was the num [263] ber of suits and the value of each, nothing being said as to their character, quality or condition, although it is suggested that as they were shipped from one store to another they may be presumed to have been somewhat shelf-worn. The court is of the opinion that if the jury disbelieved the testimony of the plaintiff as to the value of the goods, there was nothing in the evidence that enabled them to make an intelligent estimate as to the reduction that should be made from his figures on account of his disposition to exaggerate, or to make an independent appraisement, and therefore that the verdict is unsupported by the evidence and should be set aside. The judgment is reversed and the cause remanded for a new trial.