*1 Co. Fisher v. accordingly and reversed court is circuit the
ment of court circuit the with directions remanded the cause of plaintiff in the sum $94.05 for enter P. J original judgment. Allen, of of the date as Becker n and concur. JJ., Danes, Appellant, THE PULLMAN FISHER, GEORGE B. Respondent. corporation, COMPANY, a Opinion Appeals. June of Filed St. Louis Court Companies: Baggage; Sleeping or Stolen: Lost 1.EVIDENCE: Car Admissibility. against In a suit of Declarations Porter: Res Gestae: company by travelling sleeping for loss of his car by him, occupied placed bag rela- berth and under the contents sleep- brought baggage into and effects so tive to the care of ing gMcwi-bailee car, sleeping company hire for became a car duty quasiwatchman, watchful care and with the of and inattention, through baggage may not be lost so properly accounting baggage having disappeared, de- tiff’s quasi-care, property placed so in his manded of the account, being proper person whom seek the from search, search, making the became his to make a and while employment, during scope the continuance within agency depending, a declaration relation to the transaction then dum, action, opus, consti- in the heat is made of fervet gestae. tutes of the res Scope Employment: 2. -: -: -: -: of Within Ad- Knowledge Showing Danger Fixing of missible as of Theft and Duty Diligent against sleeping Watch. In a suit car bag by passenger travelling contents, his in view testimony night he several times through passing heard the aisle statements helping plaintiff morning next search baggage they people go that when let the aisle of continually they the car did last could not be ex- pected passengers, to. a watch on was admissible to porter’s danger show the flx theft and to diligent him the watch. Companies: Duty Keep Bailments: 3. NEGLIGENCE: Car Baggage: Liability. Watch Over Reasonable A car com- TERM, MARCH Co. brought
pany, respect into the to the and effects sleep, passenger upon invitation to disrobe innkeeper, insurer, carrier, liable neither an nor but is common *2 negligence keep for which arises a reasonable when it fails to baggage passenger. watch over the and effects Negligence: Companies: Baggage: Sleeping-Car 4.INSTRUCTION'S: Stating Proposition Lost or Stolen: Instruction Abstract of Law Applicable sleeping Misleading. Not against Facts: suit a In a company by passenger plaintiff, baggage, car a for loss of where showing by negligence part por- on the of defendant in that keep watch, ter failed to a had than mere reasonable shown more theft, enough loss or an instruction that was not rightfully traveling tiff to that show he was in one of defendant’s sleeping cars, traveling belonging and while so certain valuables stolen, applicable to him were or not lost to the facts and was misleading. 5. -:-:-: -: -: Evidence: Instruction Cast- ing against Burden of Proof on Plaintiff: Erroneous. In a suit a sleeping company passenger by baggage, car a for loss of where plaintiff produced porter’s evidence of a failure to watch on the part, explanation had defendant the burden of and was forced evidence, casting to meet the hence an instruction such burden of explaining plaintiff, the loss on was error. 6. -: -: -: -: -: Instruction for Defendant Failing Explanation by Take Into Account Burden of Cast Evi- against dence: Erroneous. In a suit car baggage, proof where in fail- ing keep produced, a reasonable watch was an instruction that plaintiff’s baggage the defendant was not an insurer of liable, abstractly stating mere loss did not make it while a cor- proposition law, erroneous, misleading rect as the explanation instruction failed to take into account the burden of cast the evidence on defendant. from the Circuit Appeal Court of the of St. City Louis.
—Hon. Charles B. Davis, Judge.
Reversed remanded. Hausman E.
Albert appellant. - (1) The court erred in excluding statement of could porter, watch on pas MISSOURI Pullman Co. (tbe company) sengers’ baggage they let when continually, they did go the aisle of the question. made It was a statement on the discharge find and in the bag, therefore hand restore App1 gestae. Hampton Mo. v. Pullman res Thompson 536, Levi v. Ry. McDer F. St. Louis'& S. Bergman v. Mo. 285; & St. J. 87R., mott Hannibal Expr. Berry, Indianapolis, Adams Morse v. Dis. Connecticut Columbia, 208; (Mass.) 112 Mass. R., R. Gray Lane v. Boston (2) of defendant’s The statement company) they (the if he could not watch permitted people go through the was admissible danger and fix of theft, show *3 people were duty while constant watch of a testimony of passing through in view aisle, passing plaintiff been had night. Chapman during 583; 55 N. Y. R., Erie R. v. El 261; 197 Ala. Mothershed, v. Louisville & Nashville ledge City, Howard, v. Baird 282; 100 Cali. v. National Pollard, v. Life Ins. Co. 89 Union Central 584; Tenn. 225-; 88 Co., Wash. 94 Ya. v. Seldovia Salmon 146; Olson Encyclo 91 8- Co., Iowa, 261; Medicine Kidd v. Pill and pedia pages 84 Diehl, v. 16-18; Woodruff Evidence, Carpenter 22 53;Y. 124 N. York, v. New Indiana, 474; giving (3) par. in The court erred 302. J. C. jury reading No. 2. Bevis instruction defendant’s Scaling 24 App. Pullman, 19; 26 Mo. v. v. B. and O., App. Sleeping App. 199; Co., Mo. Root v. Car N. Mo. 29; Pull 549; Y. Kates v. Co., v. Pullman Goldstein Pull 609; 126 Ga. Schaffner, Pullman v. man, 95 810; Ga. App. v. 540; Robinson man 3 Colo. Freudenstein, v. (4) The App., 549. Col., Dist of R. Co., Southern reading giving court in erred Point cited under 3. authorities instruction No. Same refusing (5)’ to set aside 3. erred The court 1923. TERM, MARCH! The Pullman Co. v. jury because it any of the was without
verdict evidence (6) support it. misunderstood the instruc the court. Therefore,.the tions of verdict should have been set aside. Reyburn
Lehmcmn and and Thos. R. LehmaAvn respondent.
(1) Testimony concerning statements properly “hearsay.” were excluded as Such statements are neither admissible as declarations or as gestaeGotwald of the “res v. Co., Transit App. Mo. Barker v. Mo. 143; McDer- Rodgers mott McCune, Adridge Mo. 558; Furnace Co., 78 Mo. Bevis App. 26 Mo. Rlailroad, 19; Corbett v. Railroad, '26 Koenig Depot v. Union 173 Mo. Co., (2) It to find and bag: (a) being merely restore quired hand He re- ordinary guarding passen-
to exercise care ger’s Dings effects. v. The Pullman 171 Mo. Wagner Efron Palace Car Root N. T. Central Car Co., 28 (b) consequently And the statement not made discharging plaintiff’.s find and restore hand bag. (3) testimony merely attempted The excluded people passed through night. show the aisle This is a matter of common and as the tiff merely Ap- so testified the evidence is cumulative. *4 pellant’s page (4) testimony, .4. abstract, The excluded anything, if prove favored defendant, tended humanly possible. Appellant’s did all that was page (5) 6. abstract, Defendant’s instruction No. 2 approved by been has the court. Bevis v. B. & R.O. R. App. (6) 26 Co., Mo. 19. instruction defendant's No. Dings was based on the and decisions of law this State. v. App. The Pullman Co., Mo. v. 643; Root Car App. (7) though Co., Mo. 199. Even the evi- n The Co.
Fisher v. ordinary persons undisputed, if fairminded deuce is intelligence might drawn to the inferences to he differ as jury. question negligence fact is a therefrom, City Railway, of Kirks- Combs 450; Gratiot Schwyhart App. 145'Mo. Barrett, 134 Mo. ville, App. App. Shamp John- 142 Mo. Lambert, Munro v. Ice 143 Mo. son v. (8) King theory appeal the trial on are bound
Parties court. Plaintiff’s given petition sub- instruction jury ques- question as a mitted the findings con- are of fact of a fact. The tion of appeal. Cole, clusive on Grimes pages Appellant’s Diamond Brief, 7-8-9; Abstract and Ry. S. W. v. Mo. Pac. j'ustice suit in a instituted
DAVIS, C. Plaintiff 1920, November city 13, on Louis, of St. court of the alleged bag traveling contents, for loss sleep- passenger on $91.90, value Tyler, ing Texas. Texarkana and car between justice there- in the court, The cause tried was on the before in the circuit novo after court de plaintiff aloné. The direct and cross-examination plaintiff ap- being defendant, verdict and peals. plaintiff 1920, hav- of October on the
The be- ing purchased ticket, and Pullman railroad both a the defendant on car came a n him at the Company met at Texarkana. hand-bag, his him to berth led took his door op- hand-bag planing up, beside or already made Taking posite articles from it, berth. few occupied by placed bag berth under tiff to the floor. extended which curtains, closed the riding sand- in which morning on The next cars. two other wiched between bag, traveling arising he looked a. m., at 5:30 proceeded then toward to find it, unable *5 285' MARCH' TERM, Pullman Co. looking smoking as he com- car, end the went. The partment at one was situated with the car, end door thereof located on the side. the side On extreme smoking of the car a short aisle leads the room from right-angle with a turn to the main aisle, which runs through the center of the car. Iíi a search for the travel- ing bag smoking he found the room. the pas- sight, Pullman conductor not in nor were other sengers up. reporting disappearance On the of the hand- bag porter, plaintiff, to with the the the he, searched sleeping During to it. car, but was unable find the people passing through several times heard the aisle of car. complains Plaintiff the action the trial court sustaining objection question him to asked state the conversation had with the relative passage people through to the night, the car thereupon excluding plaintiff’s
and to court’s proof, porter, offer of the effect that while morning, helping plaintiff next baggage search his porter, plaintiff, he, said when to.the they people go through continually let of the car aisle they expected night, did last could not be passengers. watch on sustaining- objec- think
We the court erred in excluding proof plaintiff pur- tion offered. The object purpose chased of defendant contract, place contemplating provide sleep, of which was consequent asleep, loss of consciousness, while including the care and effects. baggage.
Relative to the care and effects so brought sleeping into became the de fendant to under these the re maintain, circumstances, quired vigilance. keep It was with the ing a reasonable said in watch. As Goldstein Company, 220 N. l. “The Y., c. quasi-bailee quasi- became a hire and sleep passengers capacity watchman. In either APREAL The Pullman Ca Fisher v. *6 duty charged care the of night, with watchful is it at through inattention.” baggage may be lost not that
so gwU-custody of Charged correlative duties with the give required, porter gwasi-watching, must, when the proper devolving upon the duty him as that account, person accounting An the account. from whom to seek employ- scope of made within of him is demanded quasi- placed inquiry property in hik so and the ment, having dis- properly him. made of care is .The porter duty make appeared, of the became scope making within the search, and while search, agency employment during continuance of of his depending, declara- then transaction in relation to the opus, ac- in the heat of by him dum tion is made fervet gestae. the res and constitutes tion, laid down within the rule at bar comes case App. Company, Hampton 134. The 42 Mo. in v. appo 19, is case of Bevis question re of evidence there the admission site, porter, acting past transaction which lated to scope employment, narrating his without the tory. of his wlas supported reached is The conclusion we have following Levi v. cases: Thompson F. Louis & S. v. St. S. W. 536-545, Ry. & v. Hannibal 37-40; 59 Mo. McDermott Indianapolis, Bergeman St. R. J. R, Berry, Express Adams 15 S. 77, W. Rail Columbia, 208; Dis. Morse Connecticut (Mass.) Gray B., Lane Boston R. road, Mass. plaintiff’s testimony people that were
In view night, passing through aisle of the car again the evidence so admissible to show excluded was porter’s knowledge danger theft and to fix diligent The rule of him the watch. law par. applicable 302, in 22 is stated J. follows: C. knowledge may be “The existence or absence person shown the declarations of a whose MARCH TERM, Ca importance though is even such were declarations made in- a considerable time before or after time ’’ inquiry. volved go say unnecessary
It is for us to than to further scope this declaration of the made within the employment depending. while the matter was passing Plaintiff- testified were down sleeper during night. aisle of the declaration His prove knowledge was admissible to fact. Knowl edge tending of circumstances to increase the hazard together required pre or risk of the lack of theft, with competent responsi caution to fix it, circumvent bility on him or care. The *7 vigilance, negligence was with and it for was necessary ruling him to omit the care. Our has Chapman sanction of: v. Erie R. N. Y. R., Louisville & ledge El Nashville Ala. Mothershed, City,
v. National
v. Howard,
Cal.
Baird
“3. The court instructs the the defend- plain- Company, ant, insurer of not an Pullman Co. evidence in the mentioned suitcase and contents tiff’s Be- liable. not defendant does make this and a mere loss go show further and recover must fore he can negligence de-. by some loss was occasioned such prov- agents burden or or servants and fendant ing its plaintiff, negligence upon shown has is and unless weight preponderance greater negligence by or such your Judgment must be verdict evidence, against defendant.” together. No. Instruction will consider them
We opinion concurring v. Rail- 2 was in Bevis taken from the supra. were The verdict road, tiff. judge the instruc- characterizes
While the learned given tion of the there it was says at the instance correct, gave the defend- defendant. announced He law opinion concurring ant all it was His which entitled. opinion enunciate and did not court, - a rule of law. A lead us careful examination the authorities practically in an- conclude that the are in accord cases sleep- nouncing propositions following of law: That ing brought respect and effects to the invitation
into the car sleep, innkeeper, common disrobe and is neither carrier or but which insurer, liable for arises over the when it watch fails a reasonable *8 passenger. and effects of the may liable While it be that defendant conceded is only yet negligence, is evi shown when appears porter dence reason to failed able watch. Certain it reasonable think, we that a is, kept .watch was not while the maintained smoking was off to other duties in room or at a place part where he could not the first observe. While may proposition of 2 instruction No. state abstract applicable of it law, mislead is is to facts ing, plaintiff, by showing negligence, more has shown part than mere loss or theft. in The of said second clearly casting struction is in error the burden ex1- of 289 TERM, 1923.
MARCH The Pullman Co. plaining plaintiff. Charged quasi-cus- the loss on with plaintiff produced tody and a evi- when watch, porter’s part, absent dence on the of failure watch place observe, from could from which explanation, defendant had the of and was forced burden say, however, to meet the evidence. do not mean We testing prevented before defendant from is proper instructions, under re-trial, verity if it desires. evidence, so proposition law, we what
Relative an abstract regarding in form of the first have said abstractly applies it struction No. 2 to No. While misleading and proposition law, a correct is states probably er arrive at a verdict influenced more than roneously involved conceived. The evidence People passed to and fro mere or theft. night. at found
the car place smoking from the absent room, 5:30 a. m. pro negligence having been Proof observation. by plaintiff, into failed to take the instruction duced explanation evidence, cast, account the burden authority: O., Bevis v. B. & on cite as defendant. We Scaling Pullman, App. 199; Goldstein Co., Car. Root v. Pullman, 220 N. Y. Kates Ga. Schaffner, Pullman v. Ga. Robinson Southern
Freudenstein, Colo. R. Dist. of Col. should error and No. were No.
Instructions given. not have been foregoing is reversed cause errors,
For the views be accordance remanded, re-tried expressed. herein foregoing opinion PER CURIAM: The Davis, opinion adopted court. as the
C., is accordingly reversed of the circuit court Commissioner. recommended cause remanded as JJ., concur. Danes, J.,P. Allen, Becker and