162 Mo. App. 296 | Mo. Ct. App. | 1911
Lead Opinion
This action was instituted in the circuit court of the city of St. Louis and resulted in a verdict and judgment in favor of' plaintiff and against the defendant corporation, for . $570 actual damages. That defendant appealed to this court, from which the cause was transferred to the Springfield -Court of Appeals under the act of the General Assembly, approved June 12, 1909 (Laws 1909, p. 396, now section 3939, R. S. 1909)'. There the case was argued and submitted and the judgment of the circuit court affirmed. The Supreme Court having a short time afterwards, by its decision in State ex rel. St. Louis Dressed Beef & Provision Co. v. Nizon et al., 232 Mo. 496, 134 S. W. 538, held that court to be without jurisdiction in cases- so transferred, the opinion, of the Springfield Court of Appeals has not been published.
The case coming back to us has been argued and submitted.
The amended petition upon which the case was tried averred that about March 15, 1906, plaintiff was in possession as of his own property, of a certain steamboat named the “Deuce,” lying at the foot of Potomac street in the city of St. Louis, and of certain chattels in and upon the boat consisting of a marine boiler, two engines and other machinery, equipment and tackle, and that on the day named, defendants (there being two of them named in the amended petition) entered upon the steamboat, without the consent of plaintiff, and detached and removed the boiler, engines, etc., and in so detaching and removing them wrecked the pilot house and willfully, wantonly, maliciously and unlawfully converted the machinery to ■their own use and made away with and disposed of it, .and wrongfully and wantonly overruled the rights of ;plaintiff for their own selfish purposes; that plaintiff liad been damaged by the wrongful conversion of the goods and chattels in the sum of $500, and in injury to the boat and in the removal therefrom of the ma
The answer to this amended petition was a general denial, save that the incorporation of appellant was admitted.
At the close of his testimony plaintiff took a non-suit against the individual defendant and by leave of court amended the ad damnrnn clause of the petition by placing the damages for the conversion of the chattels at $750, the damages to the boat at $500, making the actual damages claimed $1250, and leaving the punitive damages at $500. We may dispose of the claim for punitive damages by saying that no instructions were asked or given looking to punitive damages, and no point is made upon this by counsel on either side.
The evidence in the case tended to show that in the years 1902 or 1903, the United States government sold three small steamboats, each forty or fifty feet long and ten feet beam, to the Mayer Fertilizer Company. One of these boats was named “Ace,” another “Deuce,” the other “Thetis.” Afterwards, apparently in 1904, the Mayer Fertilizer Company sold the three boats to one Koplar, and about the middle of December, 1904, Koplar sold one of these boats, said to be the “Deuce,” to the plaintiff Carpenter. After Carpenter bought her she was lying near the foot of Dorcas street, St. Louis, and Carpenter wanted to move her down the river to Carondelet, or South St. Louis. For some reason not disclosed, she could not be moved by her own machinery, so that Carpenter and others with him, on the suggestion that they could get her into the current of the river and by help of oars move her down to the place desired, undertook to do this. When the boat reached the foot of Potomac street, she was caught against a dyke extending out into the river at that point and thrown against the bank so that they had to tie up until they could get some one to
On the part of defendant there was evidence tending to prove that after Koplar had purchased the steamboat called “Deuce,” from the Mayer Fertilizer Company, he had sold a boat under that name to a man called Johnson, who had first taken it up the Mississippi river and afterwards down the river and into
At the close of plaintiff’s testimony, defendant demurred, asking an instruction that under the law and the evidence plaintiff cotild not recover, counsel also stating that he desired to offer another instruction in behalf of defendant, based on the ground that there is no title shown by the evidence such as could be used against defendant, because section 4192, Revised Statutes of the United States, provides that no conveyance of any vessel is valid against any one except the grantor, unless the same be recorded in the home port where the vessel is documented, and because under the evidence no such evidence of possession was shown as would dispense with a bill of sale under the Missouri statute. This was overruled and exception duly saved. At the close of all the testimony in the case plaintiff asked two instructions, which the court refused to give as asked and of its own motion modified them and as so modified gave them to the jury. These instructions are marked 1 and 4. The court of its own motion further instructed the jury as to the burthen of proof and as to the credibility of witnesses and as to the number of jurors necessary to concur in a verdict. The defendant excepted to the giving of all these instructions. At the instance of defendant the court gave an instruction to the effect that unless the jury believed and found from the evidence that plaintiff was possessed of the steamer
Appellant makes twelve assignments of error. The first goes to the admission of oral evidence of the sale of the steamboat from Koplar to Carpenter, in the absence of a bill of sale properly recorded in compliance with section 4192, of the Revised Statutes of the United States. That section, so far as necessary to here notice, reads: “No bill of sale, mortgage, hypothecation, or conveyance of any vessel, or part of any vessel, of the United States, shall be valid against any person other than the grantor or mortgagor, his heirs and devisees, and persons having actual notice thereof, unless such bill of sale, mortgage, hypothecation, or conveyance is recorded in the office of the collector of the customs where such vessel is registered or enrolled.” This section in our judgment has no application whatever to the case before us. As was held by the Supreme Court of the United States in The J. E. Rumbell, 148 U. S. 1, l. c. 15, and following, that section is a mere registry act, intended to prevent mortgages' and other conveyances of vessels from having any effect against
Our court in Ward v. Bodeman, 1 Mo. App. 272, approved an instruction which told the jury that the bill of sale of a boat read in evidence “does not settle or decide the title to the boat, but it is for the jury to say, from all the evidence in this case, what relation the defendants occupied towards the boat, and in whom the ownership or interest really was. It is not necessary for plaintiffs, in order to make out their ease, to show that any written instrument was executed, or any particular form gone through with.”
Our statute, section 11519, Revised Statutes 1909', defines boats and vessels as included within the term personal property, and that “every share or portion, right or interest, either legal or equitable, in and to every ship, vessel or boat, of whatsoever name or description, whether such ship, vessel or boat shall be within the jurisdiction of this State or elsewhere, and whether the same shall have been enrolled, registered or licensed at any collector’s office, or within any county or collector’s district in this State or not.”
Section 6339, Revised Statutes 1909, is of the same legal effect as section 4192, Revised Statutes of the United States. This section 6339 provides that a copy of the enrollment of a steamboat duly certified “shall, as against the persons described as owners of such steamboat in such enrollment, be prima facie evidence that they are the owners thereof.” That is, prima facie only, not conclusive, and that is practically what is said by the instruction which was ap
The second assignment is to the error of the court in refusing to sustain defendant’s demurrer to the evidence at the close of plaintiff’s evidence. As will be gathered from what we have said, the demurrer was properly overruled.
The third assignment of error is to the act of the court in stating to the jury that the bill of sale from Koplar to Johnson, of date October 22, 1904, was received solely for the purpose of impeaching the testimony of Koplar. We dispose of this objection by saying that there is no exception whatever preserved in the abstract of the bill of exceptions to this ruling of the court.
There are two assignments of error numbered four. The first of these is to the admission in evidence of conversations alleged to have been had with Gruendler and the plaintiff during the lifetime of Gruendler, he being dead. This objection is disposed of by several decisions of our Supreme Court, particularly that in Stone v. Hunt, 114 Mo. 66, 21 S. W. 454, where Judge Black, referring to the statute excluding one party as a witness when the other is dead, holds that the object of that statute was to place parties on an equality, and that the course of decision has been to follow the spirit rather than the strict letter of the law, and that the statute was not intended to exclude evidence which was admissible and competent when it was given. “Where, therefore,” says Judge Black, l. c. 71, “the testimony of one of the parties to a suit has been taken in the form of a deposition, or his testimony has been preserved by a bill of exceptions, and such party is dead, the living party may testify in'his own behalf, and this too whether the representative of the deceased does' or does not produce and introduce the testimony of the deceased. Such
In the case at bar the learned trial judge, out of great caution, limited the testimony of this living party to such matters as had been covered by the deposition of the deceased party.
' The second of the fourth assignment of error is that the court erred in admitting evidence of the sale of the machinery at a time four months after the same had been removed from the vessel in question. As before stated, we find no exception saved to this evidence when offered.
The fifth assignment of error is that the court had held as a matter of law that the measure of damage was not the value of the goods as they were just prior to and at the time the same were taken from the vessel. We do not understand that the court did this. But as what the court did say as to the measure of damage, was in the instructions given by the court of its own motion, and as the giving of them is not assigned as error in the motion for a new trial, we cannot review them for any alleged error.
The sixth assignment of error is that the court erred in holding that plaintiff could recover on proof of a different state of facts than that set forth in the petition. We find nothing to sustain this. Defendant’s own evidence identified the boat from which the machinery was taken as the “Deuce;” defendant itself sought to claim under Koplar as owner in December, 1904, of the boat then sunk at the dyke and then known as the “Deuce.”
The remaining assignments of error go to the instructions, and also the usual assignments that the motion for a new trial should have been sustained, and that the verdict is against the weight 'of the evidence and the law. As will be seen by the motion for new trial, no error is assigned to the giving of the instructions of the court on its own motion. The court re
Nor do we find error in refusing the other instruction asked by defendant. Those which were not mere repetitions of what the court had said in the instructions which it gave, were properly refused. In point of fact the learned counsel for appellant, while assigning error to the refusal of all of its instructions, in the careful argument accompanying their brief, make no argument whatever in support of these instructions, except as to the fourth, and this we have disposed of above.
On a careful consideration of the testimony as abstracted, we are satisfied that the verdict and judgment are for the right party. This defendant, as disclosed by the evidence, was a mere trespasser, with no color of right whatever. We find no reversible error in the record of the case. The judgment of the circuit court is affirmed.
Rehearing
PER CURIAM. — It is argued that we have overlooked the recitals in the abstract when we say in our opinion that there does not appear to be objection or exception to the admission of evidence as to the value of the machinery when sold by defendant and as to •the price realized on that sale.
It is true that objections were interposed when this line of proof was offered, but when those objections were overruled, no exception appears to have been saved, so that it was as if no objection had been made; the objection disappeared as completely as if never made.
It is also true that when in cross-examination of a witness by counsel for appellant, the court interposed and asked the witness as to what repairs had been made on the machinery by the defendant, counsel for appellant (defendant below) did object, the objection was overruled and he preserved his exception. After some colloquy between the court and counsel, counsel for defendant then said that he “objected to the evidence and that’he moved to strike out all the testimony in regard to the sale of the property to the Dunklin Land & Lumber Company.” The court overruled this motion and counsel for defendant did duly ■except.' But it must be remembered that both these ■exceptions appear as saved after this witness had testified in chief and after other witnesses had testified to. these matters, and had told of the sale, without ■exception saved to any objections. It has been ruled many times that after evidence goes in without objection saved at the time, a motion subsequently made to strike it out comes too late.
The remaining points made in support of the motion for rehearing are untenable. That motion is overruled.