77 Mo. App. 258 | Mo. Ct. App. | 1898
Plaintiff was the owner of a piano which was destroyed by the burning of defendant’s depot where it was stored preparatory to shipment. He brought this action for damages and lost his case in the trial court. His chief complaint relates to the refusal of two instructions which he offered.
“If the jury find from the evidence there was a telephonic system in operation in the city of Chillicothe at the time of the delivery of the piano in question at defendant’s depot, with instruments in the offices of Miller Brothers and of the defendant’s station agent; and that Prank Miller asked to be put in communication with the defendant’s agent’s office and was told he had been; and that he then inquired if it was the station agent and was answered that it was; and he then gave shipping instructions and was informed the piano would be sent, then the communication, if any, which passed between Miller and the person at the station is competent evidence to be considered by the jury and the person answering at the station was presumptively the agent or some one authorized to answer.”
In our opinion the instruction should have been given. The instruction closed with the words: “and •plaintiff had a right to rely on them.” This was a useless and meaningless clause which did not add to or
It was determined by the St. Louis court of appeals, opinion by Thompson, J., in Globe Printing Co. v. Stahl, 23 Mo. App. 451, that conversations over a telephone were admissible in evidence though the voice of the party answering to the call was not recognized. This ruling was followed by the supreme court (though without reference to the case) in Wolfe v. Railway, 97 Mo. 473.
But it will be noticed that the refused instruction contains, at the close, a statement that the person answering to the call of plaintiff’s agent was defendant’s agent at the depot or some one authorized to answer for him. In view of the cases just cited it was perhaps on account of this that the trial court refused the instruction. We think, however, that the presumption exists and the jury should have been so informed. It is a rule of every day application in and out of court, that a person (even though non-official) performs a duty which is imposed upon him. Lennox v. Harrison, 88 Mo. 496, and authority cited; State ex rel. v. Bank, 120 Mo. 161. So when plaintiff’s agent asked the central station of the telephone company to connect him with the defendant’s agent at the depot and he answered that he would and had done so, we must presume that he performed such duty.
We are, therefore,-brought to the question for decision, whether when one is connected by telephone wire with the place of business of one with whom he desires to converse and is answered by some one assuming to be such person, it will not be presumed that he
The other instruction refused was like the one just discussed except that it asserted that the defendant was estopped from denying that the person making such answer over the telephone was its agent. In other words, it asserted the proposition that defendant was responsible for the utterance of a cheat or imposter if made over its telephone. It was properly refused.
The instructions for defendant are not objectionable and were properly given, but for the error above noticed the judgment will be reversed and the cause remanded.