5 Mo. App. 316 | Mo. Ct. App. | 1878
delivered the opinion of the court.
This is an action against appellant, as a common carrier, for failure to deliver a box of goods received by defendant in St. Louis, to be shipped to Jefferson, Texas. The defence set up is, that defendant, by written contract, agreed to carry the box, not to Jefferson, Texas, but to the agency of defendant most convenient, or nearest, to Jefferson, Texas, and there to deliver it to other parties to complete the transportation ; defendant to be relieved from all liability after its delivery to the other earner, who was to be regarded, from the time of its receipt, as the agent, not •of defendant, but of plaintiffs. There was a verdict and judgment for plaintiffs ; and defendant appeals.
No instructions were asked by plaintiffs. The instructions asked by defendant were given, and no exception was taken. These instructions were to the effect that, if plaintiffs, at ’.the time of delivering the package to defendant, agreed with defendant, by taking a receipt in which it was so stipulated, that the package was to be forwarded to the .agency of defendant nearest or most convenient to Jefferson, Texas; and that, if said package was so delivered to .any other express company or agent, said company or person so selected should be regarded, exclusively, as the •agent of plaintiffs, and, as such, alone liable; and if the jury believe from the evidence that Moark was the nearest
It is claimed that there is no evidence to support the verdict, and the question before us is, whether or not there was any evidence from which the jury might fairly infer that Moark, Missouri, was, at the time of the loss of the package, the nearest point on defendant’s route to Jefferson,. Texas.
The defendant introduced evidence tending to show that the package was taken over the Iron Mountain and Southern Railroad, in charge of an express-messenger, from St.. Louis to Little Rock ; that this messenger was the agent of the defendant as far as Moark, and from Moark to Little Rock he was the agent of the Southern Express Company; that Moark is the last point south, and the nearest to-Jefferson, Texas, to which the defendant carries goods over the route of this messenger; that the defendant and the-Southern Express Company have an agreement by which freight is divided, and two sets of books are kept, — one for defendant to Moark, and from Moark south for the Southern Express; that the limit of each company’s route is fixed by agreement with the railroads; that defendant’s agent carried the package to Moark, where he "turned it over" to the Southern Express Company; and from Moark the same messenger, as agent of the Southern Company, carried the package to Little Rock, and delivered it to the agent of the Southern Express Company there. The package-was burned in the hands of the Texas Express Company, at Arkadelphia, south of Little Rock, by an accident to the-baggage-car. There was evidence that the package was-billed through to Jefferson, Texas, and that the freight was to be collected there. Plaintiffs also put in evidence a letter called a “ tracer,” addressed by the agent of the defendant,
We think that from this testimony it was permissible for' the jury to draw the inference that defendant had an agency at Texarkana, which is admitted to be nearer Jefferson than Moark is. The agent of defendent at St. Louis writes to an agent in Texarkana, in a tone of authority, directing him to-trace the goods; and on receiving a reply that they were destroyed south of Moark, at Arkadelphia, at once writes to-the shipper to send in his account for settlement. . The only witness for plaintiffs, as to the question of Moark being the-nearest point to Jefferson, says that it is the nearest point on the Iron Mountain and Southern Road, but that he knows-nothing whatever as to any other routes that defendant may have ; and defendant introduced no witness to show that the agent at Texarkana, who obeys the order of the agent at St.. Louis, was not in fact an agent of defendant. He is shown.
But, had it clearly appeared in evidence that the agency at Texarkana was not an agency of defendant’s company, it might be seriously questioned whether, on defendant’s own showing, its responsibility for these goods ceased at Moark. The question does not necessarily arise in this case, as presented. But we may remark that it would be a dangerous doctrine to hold that a carrier can relieve himself of his responsibility in the manner suggested by defendant’s theory of the law of this case. On that theory, a responsible company, doing a large business as common carriers, and to whom shippers would willingly intrust goods on account of their known responsibility, might make an arrangement that the express-messenger at some imaginary point, — say the county line, —should become the agent of another company. Shippers would know nothing of such an arrange'ment, but would find, to their astonishment, that, when a heavy loss occurred, the goods, though in charge of the same express-messenger throughout the entire route, had ceased to be in the custody of the carrier to whom they were delivered, long before they arrived at the destination marked on the goods and indicated in the receipt given by the carrier. The carrier receipts for the goods to be carried to Jefferson, Texas, but provides that he shall not be liable
The instructions in the present case were such as to give
It is objected that the indorsement on the tracer, requesting Bell & Co. to send in their claim for adjustment, was incompetent, and should have been excluded. It was admitted that C. C. Anderson was agent of defendant at St. Louis; and the indorsement, we think, was competent as tending to show that defendant, as soon as it ascertained the precise manner and place of the loss, admitted its liability. It is said by counsel for appellant, in his brief, that the evidence shows that the offer was made during negotiations for an amicable settlement. But the record does not bear out this statement. The testimony is that the shipper demanded of defendant the full value of the goods, and was directed by defendant to make affidavit and proof of loss, which he did on receiving from defendant the tracer and indorsement in evidence.
The judgment is affirmed.