182 Mo. App. 1 | Mo. Ct. App. | 1914
The plaintiff, a wholesale liquor dealer of Joplin, Missouri, sues defendant, a common carrier, for the loss or conversion of several shipments of whiskey received by defendant at Joplin for transportation to, and delivery at, Caney, Kansas. The defendant admits the receipt of the liquors for that purpose and its failure to deliver same and seeks to justify such failure by alleging and proving a safe transportation of the liquors to Caney, Kansas, and its seizure there while being held for delivery at its freight house by a special officer of the United States, acting under the power and authority conferred on him by Section 2140 of the Revised Statutes of the United States, and who took the same from defendant and then and there confiscated and destroyed the same. The United States statute referred to provides that if any such officer has reason to suspect or is informed that any person is about to or has introduced any spirituous liquors into the Indian country in violation of law, he may search the instrumentalities of transportation and places of deposit of such person and if any such liquor shall be found he may seize the same with the means of transportation and other goods of the offender and proceed against same by libel in the proper court; and that it shall be his further duty to take and destroy any ardent spirits found in the Indian country, except such as may be introduced therein by the War Department. The evidence shows
The defendant must fail in this defense, notwithstanding these facts, for the reason that any and all authority conferred by Section 2140 of the United States statutes is confined to acts performed in the Indian country. The act of Congress in question does not authorize a Federal officer to seize and destroy spirituous liquors in the State of Kansas, however near it may be to the prohibited line of the Indian country. The officer’s jurisdiction in this respect is territorial and confined to the Indian country. Such is the ruling of the United States Circuit Court of Appeals for this circuit in the case of Evans v. Victor, 204 Fed. 361, where the court, in ruling that the land m the original town of Miuskogee, Oklahoma, is not part of the Indian country, said: “It is conceded by counsel for defendants, and is settled by repeated decisions of the Supreme Court, that the power of the officers of the Interior Department, and of the officers of the army, to cause such searches and seizures is
Nor can defendant justify its action so as to relieve itself of liability in surrendering the liquors in question to the Federal officer on the ground that it did so in good faith, believing that such officer had a right to seize and take the same against its will. In fact, defendant would not have been relieved of liability had the liquors in question been taken from it by force. In the case last quoted from, the Supreme Court of the United States, in speaking of this point, said: “But the objection fatal to all this class of defenses is that in that locality they were utterly without any authority in the premises; and their honest belief that they had is no defense in their case more than in any other, where a party mistaking his rights commits a trespass by forcibly seizing and taking away another man’s property. There was here no process from a competent court, nor any order from any source having authority, and there is, therefore, no defense.”- The'de
This case must, however, be reversed and remanded for these reasons: The case was tried to a jury and after all the evidence was in the court, over the objections and exceptions of the defendant, made the following order: “Trial by jury begun and at the conclusion of all the evidence the jury is discharged by the court on the ground that no question of fact is involved in the case, and the cause is submitted to the court for further proceedings.” The court, after discharging the jury, took the case under advisement and several days later entered a judgment stating, among other things, that: “The trial of this cause is resumed by the court. After hearing the remainder of the evidence and being fully advised in the premises, the court finds that the defendant is justly indebted
It is not necessary, however, for us to decide that in a case where the court should properly direct a verdict for plaintiff, it is a fatal error for the court to first discharge the jury and then render such a judgment as would be proper on the directed and returned verdict. In the present case the amount which plaintiff could recover depended on the value' of the liquors lost and destroyed and this presented 'a question of fact for the jury. It is true that defendant offered no evidence on this point and that plaintiff’s evidence as to the value was not contradicted, yet, the answer puts this in issue and the evidence was oral and by an interested witness. It is the established law in this State that, as the burden of proof is on the plaintiff to establish his case, where the evidence adduced is all oral and no evidence is introduced to the contrary, yet the weight of the evidence and the credibility of the witnesses is for the jury and the court has no right or power to direct a verdict. [Dalton v. Poplar Bluff, 173 Mo. 39, 47, 72 S. W. 1068; Hegberg v. Railroad, 164 Mo. App. 514, 147 S. W. 192; Dyer v. Tyrrell, 142 Mo. App. 467, 127 S. W. 114; Gordon v. Burris, 141 Mo. 602, 43 S. W. 642; McCrosky v. Murray, 142 Mo. App. 133, 125 S. W. 226; Link v. Jackson, 158 Mo. App. 63, 91, 139 S. W. 588.] . Even
The evidence adduced as to the amount of damages to be recovered related wholly to the value of the whisky at Joplin, the point of shipment. The law is well settled that the measure of damages against a carrier for loss or damage to goods shipped or failure to deliver same is the market value at the point of destination. [Railroad v. Traube, 59 Mo. 355; Wilson v. Railroad, 129 Mo. App. 347, 108 S. W. 612; Medicine Co. v. Railroad, 126 Mo. App. 455, 104 S. W. 588; Warehouse Co. v. Railroad, 124 Mo. App. 545, 102 S. W. 11; Blackmer v. Railroad, 101 Mo App. 557, 73 S. W. 913.] Under these authorities it is also held that if the freight has not been prepaid, then the amount due
Moreover, we think it will be found that whisky has a legitimate use and sale everywhere for medicinal and, perhaps, other purposes and we cannot conclude that it had no market or actual value at destination. It follows that, on the present state of the record, the plaintiff’s recovery could not have been for more than nominal damages. [Rogan v. Railroad, 51 Mo. App. 665, 672; Warehouse Co. v. Railroad, 124 Mo. App. 545, 567, 102 S. W. 11.]
The case will, therefore,- be reversed and remanded.