15 Mo. App. 197 | Mo. Ct. App. | 1884
delivered the opinion of the court.
The petition alleges that the defendant corporation is a common carrier; that plaintiff delivered to defendant at La Crosse, Wis., and to its agents then in charge of, and running, the steamer Arkansas, for transportation and delivery to plaintiff at St. Louis, certain household goods worth $500, which defendant received, and, for value, agreed to transport them on the Arkansas, by the Mississippi River, and deliver them within a reasonable time to plaintiff at St. Louis ; that defendant has failed and refused to deliver the goods to plaintiff, whereby they have been lost to plaintiff, to his damage, etc. The answer is a general denial. There was a verdict and judgment for $500. Plaintiff remitted $67.31, upon which the motion for new trial was overruled, and there was judgment for $432.69.
At the time of the accident, the Arkansas was coming down the river towing two barges, one on each side. One of these barges, on which was a large portion of plaintiff’s goods, struck the Burlington bridge a.nd sunk. A large box of goods of plaintiff’s was lost. Some of the goods were recovered and taken on board the Arkansas in a damaged condition. Johnson, the secretary of defendant, told plaintiff that the barge that was sunk was defendant’s barge.
It further appeared that plaintiff’s wife delivered the sealed letter to the captain of the War Eagle, which was one of defendant’s boats. The captain told her that her goods had come on from New Lisbon, but were side-tracked at La Crosse, and not accessible ; that he could not wait for them ; but that they would be put on the next boat of the line coming down, which would probably be the Arkansas. She came to St. Louis on the War Eagle.
On behalf of defendant, Baker swore that he was agent, not of defendant, the packet company, but of the freight line, and that the letter he gave to plaintiff was directed to the clerks of the steamer of the “ St. Louis and St. Paul Packet Line.” There was testimony on behalf of defendant to the general effect that the Arkansas was owned and used by the freight line, and not by the packet company ; that the wharf-boat was leased by the freight line; that the “ St. Louis and St. Paul Passenger and Freight Line ”
There was testimony tending to show that defendant was a common carrier, and also as to the reasonable value of the goods in St. Louis at the time they ought to have been delivered.
At the close of plaintiff'’s case, and at the close of the whole case, defendant asked an instruction in the nature of a demurrer to the evidence, which was refused. The court also refused an instruction asked by defendant to the effect that a verdict for defendant, in this case would not be a bar to a suit against the St. Louis and St. Paul Passenger and Freight Line, and an instruction that, “ this action is based upon an alleged contract whereby it is claimed by plaintiff that defendant received his goods at La Crosse, Wisconsin, and agreed to carry them to St. Louis and deliver them to plaintiff. The burden of proving this contract by affirmative evidence, is upon plaintiff, and there is no evidence which the jury can consider tending to prove such contract, and they must find for defendant.”
The case was given to the jury upon the following instructions, of which the first three were given at the instance of plaintiff; the others were asked by defendant:—
1. “If the jury believe from the evidence that the defendant permitted the persons owning, controlling, or running the steamboat Arkansas, whoever they were, to act for defendant, and for defendant to carry these goods from La Crosse to St. Louis, and that, upon the arrival of the boat at St. Louis, defendant assumed the custody and control of
2. “ It is not necessary for plaintiff'to show any contract, or any agreement of any kind, by which defendant or any of its agents agreed in terms to transport or take these goods from La Crosse to St. Louis. It is for the jury to say, from all the circumstances in evidence before them, whether defendant, either by itself or by others authorized to act for it, undertook to have these goods or any of them transported by river from La Crosse to St. Louis.
3. “ If the jury find for plaintiff, and believe from the evidence that defendant, upon demand being made for the goods aud the money for the freight tendered to defendant, refused to deliver the goods to plaintiff, or that the defendant refused to deliver the goods except on condition of plaintiff signing some written paper, they will assess plaintiff’s damages at the fair and reasonable value of the goods, as the goods would have been had they been in good order and condition at St. Louis on their arrival there, less the amount of the freight bill offered in evidence, and the jury may add interest on such balance at six per cent per annum from the date of the refusal to deliver.
4. “ The plaintiff can not recover in this case, unless the jury find from the evidence that the goods described in the petition were delivered to the St. Louis and St. Paul Packet Company, the defendant at La Crosse, Wis., and that the defendant, the St. Louis and St. Paul Packet Company, received them there to transport them to St. Louis and deliver them to plaintiff.
5. “ The jury is instructed that this suit is based upon an alleged contract whereby it is claimed by plaintiff that defendant, the St. Louis and St. Paul Packet Company, received his goods at La Crosse, Wis., and agreed to carry
If defendant was a common carrier, and by its authorized agents agreed with plaintiff to transport his goods from La Crosse to St. Louis, and in accordance with such agreement received them at La Crosse, it is liable for the reasonable value of the goods at St. Louis if it failed to deliver them to plaintiff there, and was not hindered by the act of Grod or the public enemy. And defendant can not escape its responsibility by showing that it employed means of transportation furnished to it by others. Bank of Kentucky v. Adams Express Co., 93 U. S. 174. So that it is immaterial whether the Arkansas belonged to defendant’s line or not, or whether her barge belonged to defendant, if defendant, having agreed to transport plaintiff’s goods, used the Arkansas for that purpose, and she was a boat ordinarily employed for the business of another line.
We have nothing to do with the weight of the evidence or the credibility of the witnesses. It seems that the case was fairly put to the jury by the instructions given, and that there was substantial evidence to support the verdict.
It appears from the record that the case has been twice tried, and two verdicts have been rendered for plaintiff upon the pleadings as they are. The petition contains allegations sufficient to hold defendant upon the common-law obligation of a carrier. After verdict it seems to be good enough. The case was not put to the jury upon any theory of conversion.
Instructions 1 and 2 for plaintiff seem to go upon the theory that, if the agents of the St. Paul Passenger and Freight Line directed the captain of the War Eagle, a boat of defendant’s line, or generally directed the agents of defendant’s line, to receive these goods and transport them
It is objected that the court erred in permitting plaintiff to state his conversations with the clerk on the wharf-boat, and in permitting Mrs. Austin to state her conversation with the person in charge of the steamboat office at La Crosse. As to the first objection, we think that there was sufficient evidence of agency to warrant the admission of the conversation. This clerk made out the bill for the freight of these goods in defendant’s nameand, before he repeated the conversation, the witness stated that this clerk was, at the time, the general clerk on defendant’s wharf-boat, then engaged in receiving freight. The other conversation seems to have been excluded. The conversation between Mrs. Austin and the captain of the War Eagle was competent, because there was testimony tending to- show that he was at the time captain of a boat on defendant’s line, and that to him plaintiff had been referred by defendant as one authorized to act for defendant in this matter.
We see no sufficient ground for interfering with the judgment. Judgment affirmed.