Collier v. Langan & Taylor Storage & Moving Co.

147 Mo. App. 700 | Mo. Ct. App. | 1910

REYNOLDS, P. J.

(after stating the facts).— The assignments of error in this court hv the learned counsel for defendant are, first, that the defendant was a private and not a common carrier; that it was a bailee for hire and responsible only for loss occasioned by its servants’ negligence; second, that the court should have given the instruction in the nature of a demurrer, requested by defendant at the close of all the evidence; third, that plaintiff’s wife was an incompetent witness to prove tbe value of the articles destroyed and that it was error to permit her to refresh her memory from a memorandum made sometime after the happening of the events charged in the petition and, finally, that the improper conduct of plaintiff’s counsel is reversib! error. Disposing of the minor propositions before taking up the more serious and important ones, we hold that the language of counsel which was objected and excepted to, while improper in that it stated as a fac in the case that which had not been proven, was not only retracted by counsel but the counsel was properly corrected by the court. Under the facts in evidence in the case as to the agency of the wife, we think she was a competent witness for all of the transactions and incidents connected therewith to which this agency related. Nor do we think there was any error in the action of the court in allowing her to refresh her memory from the memorandum made sometime after the happening of the events charged in the petition. This latter matter is so much in the discretion of the trial court, the witnesses being before him and he having such full and ample opportunity to pass on the question of the use of memoranda by a witness, that except in a case manifestly showing an abuse of this discretion, the appellate court will not interfere.

This brings us to the important errors assigned, namely, as to whether a demurrer to the evidence, interposed by the defendant, should have been given and with that is the question as to whether the defendant was a private and not a common carrier. These two assignments run together so intimately that we will dispose of them together.

At the outset it is to be remarked that the instructions given at the instance of plaintiff are not correct on the theory which we think should have governed in the determination of this case. The error in them, however, is entirely against the plaintiff and is of such a character as not to constitute reversible error, if the theory upon which the appellant, defendant below, argues this case before us is the correct theory. It is fair to say that counsel for the respondent has very frankly accepted the issue presented by the defendant in the assignment of errors made before us and that both counsel in the oral argument of the case before the court, placed the case upon the theory that involved the determination of the question as to whether the defendant was or was not a common carrier. If defendant was a carrier for hire, the demurrer to the evidence would demand more serious consideration. If it was a common carrier, there is nothing to be said in support of that demurrer.

The learned counsel for the defendant claim that this court has held, in several well considered decisions, that a person or corporation, who undertakes to move household goods from one residence to another in a city, is not a common carrier but a private carrier for hire, and is responsible only for loss occasioned either by its own or its servants’ negligence. In support of this counsel cite the cases of Jaminet v. American Storage & Moving Co., 109 Mo. App. 257, 84 S. W. 128; Berger v. St. Louis Storage & Commission Co., 136 Mo. App. 36, 116 S. W. 444, and Thompson v. New York Storage Co., 97 Mo. App. 135, 70 S. W. 938. An examination of these cases does not sustain the claim of counsel.

In Thompson v. New York Storage Co., supra, Judge Goode, who delivered the opinion, states (1. c. 136) that, “The testimony in the case is meager but we think appellant was a private carrier or ordinary bailee for hire, not bound to serve every one without discrimination. . . . Whether a person was a common carrier, bound by all the extraordinary responsibilities and entitled to the privileges of that class of bailees, can sometimes be known only by particular proof of how his business was conducted and what professions he made to the public regarding it. . . . As no declarations of law were asked on the subject, and as what testimony there is inclines ns to look on appellant as a private carrier instead of refuting any possible inference of that kind, we will not interfere with the finding of the court below.” The decision then is that the defendant being a private and not a common carrier, which latter it contended it was, was not entitled to a lien for its charges upon the goods which it had carried. This decision is in line with all the authorities which are to the effect that it is a question of law for the court to determine as to what constitutes a common carrier, but it is a question of fact for the jury to determine whether the defendant charged as a common carrier is within that definition and is carrying on his business in that capacity. Thus in Pennewill v. Cullen, 5 Harr. Rep. (Del.) 238, 1. c. 241, it is said that it is for the jury to determine upon the proof, whether the defendant held himself out to the public as engaged in the business of a common carrier. See also 6 Am. and Eng. Ency. (2 Ed.), p. 247.

All that is held in the Thompson case, therefore, is, that under the facts in that case, as shown in it, and in the absence of any declarations of law or instructions, this court would not disturb or interfere with the finding of the court below in holding that that defendant was not a common carrier. It is not, in our opinion, a determination of the question here involved.

The case of Jaminet v. American Storage & Moving Co., supra, was an action against the defendant for the destruction of a mirror and the partial destruction of a portrait of the plaintiff which had been unloaded from a van in which they had been carried, while the defendant was moving the plaintiff’s household goods from one point of the city of St. Louis to another point in the same city. At page 262, Judge Goode, who delivered the opinion of this court, says: “The chief contention of the appellant’s counsel is that the court erred in assuming the appellant was a com--xnon carrier, instead of leaving it to the jury to say. This point is irrelevant; for tbe instructions did not make the appellant’s liability depend upon its possessing the character and responsibility of a common carrier, but on finding that it had agreed with respondent, for a consideration, well and safely to move and carry respondent’s household furniture and goods, and to deliver them to her in as good condition as when received. As the case is presented here it is immaterial whether the appellant was a common carrier or not.” It therefore appears that whatever may have been said in the course of the very learned and elaborate discussion of the law applicable to the case of a special contract, as was in the Jaminet case, the point in decision was most distinctly on ground other .than the determination of the question of what constitutes a common carrier, and that decision cannot be. held to be a determination of that question. It follows also that as the law as to common carriers was not before the court in that case, and it was a case of the' construction of a special contract, there was no consideration given of the question as to whether, if the defendant in that case had been held to be a common carrier, it could by special contract exempt itself from the liabilities of a common carrier. In the case at bar there is no question of a special contract before us, so that we are not in any degree passing on the law applicable to such a situation as might arise if a special contract were relied upon.

Berger v. St. Louis Storage & Commission Co., supra, was an action for the value of several carpets lost to plaintiff and for damages alleged to have accrued to numerous articles of furniture, while stored in the defendant’s warehouse. Evidently, therefore, it can have no application whatever to the determination of the question of the liability of the defendant in that case as a common carrier. Its liability was that of a warehouseman, whose duty in the protection and care of property entrusted to him is to use ordinary care, such care and diligence as an ordinarily prndent person, in that line of business, is accustomed to exercise toward such property or in tbe care of bis own property under similar circumstances, tbe general rule being that the warehouseman is not liable for tbe destruction of goods by fire not due to bis negligence or that of bis agents in tbe course of tbeir employment, where due diligence has been exercised for tbeir safety, and tbe burthen of showing negligence of tbe warehouseman or bis agents is always on plaintiff, but it is sufficient in the case of a warehouseman for plaintiff to show delivery of tbe goods in good condition and tbeir return in a damaged state; from these facts tbe law declares a prima facie case of negligence is made out. [Berger v. St. Louis Storage & Commission Co., 136 Mo. App. 36, 1. c. 40, 116 S. W. 444; 30 Am. and Eng. Ency. (2 Ed.), p. 46, par. 2; p. 48, par. 3, and cases cited in note.] It is very evident, therefore, that the decisions in none of these cases above cited, and they are tbe only cases cited by counsel from our own State reports, bear on tbe proposition determining tbe question here presented. Tbe question here presented for our determination, therefore, may be regarded as an original one and one of first impression in tbe appellate courts of this State. That question is whether a person or corporation, engaged in tbe business that this defendant is shown to have been engaged in, was a private carrier for hire or a common carrier. Tbe law relating to common carriers as distinguished from private carriers is so thoroughly known to tbe profession that we can add nothing of service by undertaking to go into it. By way of having it clearly before us, however, we venture to refer to 1 Hutchinson on Carriers (3 Ed.), where at sec. 4, p. 3, it is said that while private carriers, whether with or without reward, are strictly bailees and nothing more, and that questions as to their liability are to be determined by.the ordinary rules which govern the responsibility of bailees, the common carrier of goods stands upon an entirely different footing, and when questions as to bis liability for the loss of tbe goods or tbeir injury while in his custody for the purpose of carriage arise, they must he decided upon principles peculiarly applicable to them and which have no application to any other kind of bailment except that to the innkeeper by his guest. The question of negligence, when the purely common law relation of the common carrier to the goods exists, is ordinarily wholly foreign to the inquiry whether such a carrier is to be held liable for their loss or injury, and evidence on his part of the most exact diligence will be wholly irrelevant and inadmissible. “If, for example,” says Mr. Hutchinson, “the private carrier or any other ordinary bailee be robbed of the goods, or if they should be accidentally destroyed by fire or any other calamity, without negligence on his part, the law will excuse him;” but if they should be destroyed by fire ever so unavoidable, while in the custody of a common carrier, he will nevertheless be liable for them. He is an insurer of the goods against all losses, except those caused by the act of God, the public enemy, the law, the owner or the inherent nature of the goods. This is so well recognized a doctrine of the law relating to the two classes of carriers that it would seem almost superfluous to .quote or cite authorities in its support. In support of this Hutchinson cites and quotes Mr. Justice Story (Story on Bailments, sec. 495), to the effect that to bring a person or a company within the definition of a common carrier, he must exercise it as a public employment; he must undertake to carry goods for persons generally, and he must hold himself out as ready to engage in the transportation of goods for hire as a business, not as a casual occupation pro Tiac vice. A common carrier has, therefore, been defined to be one who undertakes for hire or reward to transport the goods , of such as choose to employ him from place to place.

Story on Bailments (9 Ed.), cbap. 6, p. 466, par. 496, includes among common carriers, truckmen, wagoners, teamsters, cartmen and porters, “who undertake to carry goods for hire, as a common employment, from one town to another, or from one part of a town or city to another.”

Says Chancellor Kent, 2 Kent (14 Ed.), *p. 599, “common carriers are those who undertake generally, and not as a casual occupation, and for all people indifferently, to convey goods, and deliver them at a place appointed, for hire as a business, and with or without a special agreement as to price;” and he enumerates among those adjudged to he common carriers, wagoners, teamsters, cartmen and porters.

Ordinarily, carters and expressmen engaged in carrying freight to and from a depot or warehouse, or between places in the same locality, or between different localities, are common carriers and liable as such. [6 Am. and Eng. Ency. (2 Ed.), sec. 3, p. 251, and cases in notes.]

At section 68 of his work, in defining who are common carriers, Hutchinson enumerates the proprietors of' “land vehicles of every kind, such as stage and hackney coaches, omnibuses, cabs, drays, carts, wagons, sleds and street cars, who make it a business to carry for hire the goods of such as choose to employ them, even though it may be within the limits of the same town or city, are reckoned as common carriers and held liable as such.” Again at section 70, it is said that the “proprietors of land vehicles which are not employed upon any regular line of transportation, but are used exclusively for the carriage of the goods of others for hire to places in the same town, city or neighborhood to which the owners of such goods may desire them to be conveyed, and who may be said to engage in a sort of jobbing business as carriers, such as drays, carts, express or delivery wagons, sleds and trucks, are according to a number of authorities in this country, strictly common carriers as to such goods.”

Among other cases cited by the author in support of this, is that of Jackson Architectural Iron Works v. Hurlburt et al., 158 N. Y. 34, affirming the decision of the Court of Common Pleas hereafter referred to. That was a case of truckmen, who advertised themselves as general truckmen but whose particular specialty was the moving of heavy machinery. The court held that persons so engaged were not to be deemed carriers for hire and not common carriers because they had no regular tariff of charges for their work, but did it for a special fixed price by agreement. That case has many features in common with the case at bar, for in that case, as in this, the lower court tried it on the theory of the defendant’s liability for negligence in unloading the machine which defendant was carrying- from a wharf to the place of destination and not that of liability of insurers of the safety of the property. The trial court had been requested to charge that .as carriers for hire, defendants were not liable for loss or injury which could not have been prevented by the use of ordinary diligence, and that they were not liable for injury or loss occasioned by unavoidable accident. Says the Court of Appeals (1. c. 39), “These propositions were charged as requested, and, hence, it plainly appears that, although the court refused to charge that the defendants were not common carriers, yet he did charge that they were not liable for any loss or injury which could not have been prevented by ordinary diligence. So the measure of liability which the defendants were held to was that of ordinary diligence and care. This was certainly the most favorable view of the case that the defendants had any right to expect; and since the jury has found upon sufficient evidence that they were wanting in the exercise of such care in unloading the machine from the truck at the factory, the merits of the controversy are not open to review in this court.” That fits tbe facts in this case very nearly in so far as the matter of instructions is concerned. As we have before observed, the instructions which the court gave in the case at bar at the instance of plaintiff, were a great deal more favorable to the defendant than we think the law of the case authorized or warranted. The opinion of the court, when the Jackson case was before the Court of Common Pleas of New York City and County, is reported in 15 Misc. (N. Y.) 93, also 36 N. Y. Supp. 808, the opinion being by Chief Justice Daly, concurred in by Judges Bischoff and Phyok. As these reports are not very accessible to our brethren of the bar outside of the cities, we have thought it serviceable to give a rather full synopsis of it. In'this opinion Judge Daly says:

“The defendants, composing the firm of Hurlburt Bros., are general truckmen, doing business in the city of New York; Truckmen and forwarding agents,’ according to their own description of their occupation. Their ‘specialty,’ as also described by themselves, is ‘heavy machinery’ which they move and transport, undertaking what ordinary truckmen cannot do because they have the appliances, wagons and trucks to do it; employing nineteen trucks and twenty horses; making no discrimination as to customers and not refusing to move anything upon request if reasonably paid.

“From this description of the defendant’s business they undoubtedly come within the class designated as common carriers, as distinguished from special carriers for hire, who are not engaged in the general business of transporting goods. A common carrier is one who, by virtue of his calling, undertakes, on recompense, to transport personal property from one place to another for all such as may choose to employ him. [Schouler Bailments & Carriers (2 Ed.), 351.] The criterion is whether he carries for particular persons only or whether he carries for every one. If a man holds himself out to do it for every one who asks him he is a common carrier; ‘but if be does not do it'for every one, but carries for you or me only, that is a matter of special contract.’ [Ingate v. Christie, 3 C. & K. 61.] To be a common carrier one must exercise the business as a public employment; he must undertake to carry goods for persons generally and he must hold himself out as ready to engage in the transportation of goods for hire as a business, not as a casual occupation. [Story Bail., sec. 495.] The transportation must be in pursuance of some carriage vocation which the carrier exercises. One may be a common carrier who has no fixed termini, but leaves the course of transportation in each case to depend upon his customer’s wishes. [Liver Alkali Co. v. Johnson, L. R. (7 Ex.) 267; 9 Id. 338.] Wagoners and teamsters whose business it is to carry for hire goods and chattels from one locality to another, common porters, drivers, draymen, truckmen and carmen, whether their employment be carried on from town to town or from one part of a town to another, are common carriers. [Story Bail., sec. 496; Richards v. Westcott, 2 Bosw. 589.] It is not necessary that the exclusive business of the party should be carrying; so held where one whose principal pursuit is farming solicits goods to carry to the market town in his wagon on certain convenient occasions. He makes himself a common carrier for those who employ him. [Schouler, 355, 356; see, also, Angell, Carriers, 870, 871; Chevallier v. Straham, 2 Tex. 115; Harrison v. Roy, 39 Miss. 396.]

“The sole business of the defendants in this case was the carrying of heavy articles of merchandise such as was intrusted to them by the plaintiffs. They undertook, for hire, to transport the goods of such as chose to employ them from place to place (Dwight v. Brewster, 1 Pick. 50), undertaking for hire to carry the goods of all persons indifferently (Gisbourn v. Hurst, 1 Salk. 249), and, under the definitions, must undoubtedly be regarded as common carriers. [Allen v. Sackrider, 37 N. Y. 341.]

“By the common law every common carrier is bound to receive whatever may be offered him for transportation on hire so far as comports with his means and the nature of his calling, and is liable to damages for unreasonable refusal. [Schouler, 383; Allen v. Sackrider, supra.] It has been said that the test in a doubtful case is whether the carrier would be so liable; but if we apply that test to the present case we meet with no difficulty. These defendants are but truck-men, or cartmen, on a large scale. A truckman would undoubtedly be liable for unreasonable refusal to transport the goods of a householder who was compelled to move, for instance, on the first of May; and in the case of the removal of heavy machinery it is difficult to perceive why truckmen, whose business is to handle just such bulky goods, would not be liable for a like unreasonable refusal in a like emergency. The obligation to carry all goods offered grows out of the general transportation business in which the carrier is engaged, and his holding himself out to the public as a general carrier, so that dealings are had with Mm in reliance thereon. It makes no difference that these defendants’ ‘specialty’ was the moving of heavy machinery and that they would refuse to move furniture, for, as I said before, the carrier is only bound to convey so far as comports with his means and the nature of his calling.

“Nor is it of importance that defendants have no regular tariff of charges for their work, but that a special price is fixed by agreement in every case they undertake. The necessity for a different charge in each case grows out of the difference in labor in handling-articles of great bulk. The charge in each case may be proportioned to the risk assumed and commensurate with the carriers’ obligation as insurers.”

In Caye v. Pool’s Assignee, 108 Ky. 124, 55 S. W. 887, also cited by Hutchinson, the appellant was held to be a common carrier. “He was engaged,” says the court (1. c. 126), “in the business of transporting chattels for all persons who chose to employ and remunerate him therefor. Owners of stages, stage wagons, railroad cars, teamsters, cartmen, draymen and porters are common carriers,” citing Black, Law Dict.; 2 Kent, Comm. 597, and 1 Bouv. Law Diet., p. 299. .

Referring again to the case of Pennewell v. Cullen, supra, it is said by the Supreme Court of Delaware (1. c. 241) that it is not necessary that the trips of the defendant averred to be a common carrier should be regular between the same points or places, if engaged in the business of carrying grain for others, generally, to and from any point, he is liable as a common carrier and his liability as such is that of an insurer against everything except unvoidable accident, usually called the act of God.

In the very old case and what may be said the leading case of Forward v. Pittard, an action on the case against the defendant as a common carrier for not safely carrying and delivering goods, it appeared that the defendant was a wagoner, carrying hops from one place to another by his public road wagon. Lord Mansfield, delivering the opinion, as reported 1 D. & E. 27, 1. c. 33, assumes that the business was that of a common carrier and that the wagoner was liable as such, not simply for due care and diligence but as an insurer and liable for a fire which had injured the goods, the fire being the result of an accident but not resulting from an act of God, as would be lightning or from the act of the King’s enemies. This is the case in which Lord Mansfield defines the meaning of an act of God as distinguished from the act of man.

In Ingate v. Christie, 3 C. & K. 61, Baron Alderson, referring to Mr. Justice Story as his authority and as gréat authority, treating of a case in which the defendant was employed by merchants to take 100 cases of figs in Ms lighter from Mills’ Wharf, in Thames street, to the “Magnet” steamer, and while they were on the lighter run down by a steamer and the figs lost, it being proved that the defendant bad a counting-bouse with bis name and tbe word “lighterman,” on tbe door posts of it, and that be carried goods in bis lighters from tbe wharves to the ships for anybody who employed him, says (1. c. 63), “If a person bolds himself out to carry goods for everyone as a business, and be thus carries from tbe wharves to tbe ships in harbour, be is a common carrier, and if tbe defendant is a common carrier be is liable here. There must be a verdict for tbe plaintiff.” In a footnote to tbe report of this case, at page 62, tbe quotation from Mr. Justice Story, which we have before set out, is set out, together with a long line of authorities cited by Judge Story in support of bis position.

In Nugent v. Smith, 1 C. P. Div. (Law Reports 1875-76) 19, an opinion by Mr. Justice Brett, it is said (1. c. 27), that “The real test of Avbetber a man is a common carrier . . . really is, whether be has held out that he will, so long as be has room, carry for hire tbe goods of every person who will bring goods to him to be carried. Tbe test is not whether be is carrying on a public employment, or whether be carries to a fixed place; but whether be bolds out, either expressly or by a course of conduct, that be will carry for hire, so long as be has room, tbe goods of all persons indifferently who send him goods to be carried.” At page 31 of tbe same report, it is noted that many attempts have been made to except “wharfingers, forwarding ag’ents, carters,” and tbe like from tbe rule applicable to common carriers, but that all such attempts have failed.

Tbe fact that this defendant may have limited its employment to tbe mere carriage and moving of household goods, does not change its position as a common carrier, for the employment may be limited to tbe mere carriage of particular kinds of property and goods and when this is so and tbe fact is known and avowed, tbe owners will not be liable as common carriers for any other goods or property entrusted to their agents, without their consent, but they are liable as common carriers for the loss of those goods, in the carriage and moving of which they are engaged as a business, not as a mere occasional act but as a regular business. [The Citizens’ Bank v. The Nantucket Steamboat Co., 2 Story’s Rep. 16, 1. c. 33; Harrison v. Roy, 39 Miss. 396; Gisbourn v. Hurst, 1 Salk. 249; Kansas Pacific Ry. Co. v. Nichols, Kennedy Co., 9 Kan. 235, 1. c. 253; Tunnel v. Pettijohn, 2 Harr. (Del.) 48.] It appears in this case and by other reported cases of our own court, that this defendant, like other similar concerns, is also a warehouseman. When acting as such, its liability is that of a warehouseman, not that of a common carrier. The same situation has frequently arisen as to our railroads —they may also be warehousemen, as well as common carriers.

The instruction given to the jury at the instance of the plaintiff was, under the facts proven in this case as to the nature of the business of defendant, erroneous. It submitted to the jury the question as to whether or nót the defendant had been negligent, and that it was for the defendant to have shown lack of negligence. This apparently on the theory that the fire, accruing to the damage and destruction of the goods of plaintiff, in itself, threw upon defendant the onus of proving want of negligence on its part. It was not an erroneous declaration of the law'as to a carrier for hire. Even if defendant was responsible as a mere carrier for hire, it thereby was a bailee for hire and proof of the fact of the delivery of the goods to the defendant in good condition and failure of defendant to return them to plaintiff in like condition, threw upon defendant the burden of excusing itself for non-delivery. ■ [Horton v. Terminal Hotel & Arcade Co., 114 Mo. App. 357, 1. c. 362, 89 S. W. 363.] The verdict of the jury may be construed and sustained as responsive' to this issue, and as finding from the evidence in the case, that the loss and damage was to be charged to the negligence of the defendant. True the evidence in the case is slight to this effect, about all of it being that defendant’s drivers of the van .testified that a street car motornaan passing him, called his attention to the fact of a fire in his van, but that he paid no attention to it until afterwards, how long after-wards does not appear, when looking around he himself discovered the fire and that by that time it had obtained such headway that he could not arrest it. The jury had a right to infer negligence resulting in the loss from this. We, as a reviewing court, cannot say that this was not in itself evidence of negligence in the agents and employees of defendant, that if they had given prompt attention to the matter when their attention was called to it the fire could have been extinguished before doing much damage. Be that as it may, the instruction was greatly to the disadvantage of plaintiff himself, and one of which the defendant surely has no right to complain. Being a common carrier, as we hold, on the uncontradicted evidence in the case, the defendant was liable whether negligent or not for the loss or damage to the goods entrusted to it by the plaintiff. As a common carrier it was an insurer against all loss and damage save those due to the acts of God or to those of the public enemy; fire destroying goods, when that fire is the result of any cause other than lightning from the heavens, is an accident against which the common carrier, by his obligation as such, insured. Under the facts peculiar to this case, giving that instruction is not reversible error.

Applying the lawr as we understand it to the facts in this case, we hold that the instruction asked by the defendant for a direction for a verdict in its favor, as well as the instruction declaring that the defendant was not a common carrier but a carrier for hire, were properly refused. As the evidence in the case was without contradiction that the defendant held itself out as engaged in the general business of moving for all who chose to employ it, in the city of St. Louis, it was, as to that part of its business, a common carrier and as such liable for this fire which destroyed and damaged the goods of the plaintiff, and while, as we have before remarked, the jury was misdirected as to the necessity of proving negligence on the part of the. defendant or failure to prove negligence, that was an error of which this defendant cannot complain. The verdict is obviously for the right party and there is no error in the case to the manifest prejudice of the defendant. The judgment of the circuit court is affirmed.

All concur.