Smith v. Whitman ex rel. Maguire

13 Mo. 352 | Mo. | 1850

RYLAND, J.

The questions arising on this statement of case, present the propriety of the instructions given, as well as of those refused by the court below.

The appellants contend that the court erred in giving the instructions marked 6 and 1 as well as those marked 2 and 3 in the above statement. They contend, that by the instructions 6 and 1 as above set forth, the court assumed the law to be, that “an unnecessary or negligent delay, or the unseaworthiness of the vessel, will not make the ■ carrier liable for a loss, unless the loser prove that such a loss was caused by such delay, or unseaworthiness.” Whereas, they insist the law under the most favorable view for the carrier, to be, that upon showing such delay or unseaworthiness and a loss, the carrier can exempt himself from liability therefor, only by showing, that such loss would, and must have hapjmned in the absence of such delay and unseaworthiness. Even this defense is a relaxation of the law, and not yet universally allowed. 11 Mo. R. 299; 6 Bingham, 716 ; 12 Mo. R. 272 ; 10 Mo. R. 6; 4 Binney, 127; Story on Bailments, 413. I am not satisfied with these instructions numbered 6 and 1. They are not warranted by the authorities; and the appellants’ view is the correct one ; and the authorities support them in that view.

This court has adopted the view above taken by appellants. If this was the only error committed by the court below', after having given the 7th instruction, alone, for defendant, I might be inclined not to interfere. That instruction is in these words : “if the jury believe from the evidence, that the boat after she was loaded, was delayed at G-alena for a pilot, or that she started down without enough or proper pilots, or that she was materially deficient in the usual and needful equipments of boats in that trade, for getting through the difficulties of that navigation, and that these or any of these things contributed towards preventing the delivery of the lead that fall, they should allow the defendants such damages as from the evidence, they believe the defendants to have suffered by reason thereof.” This instruction was calculated to bring all the testimony of the neglect or delay, or deficiency in equipments, and the consequences of such, if there were any, before the jury, and might have done aw'ay with the improper effect on the jury of the other instructions numbered 6 and 1, and I might be indisposed to disturb the verdict had these been the only instructions.

' But the instruction marked number 2, is so clearly incorrect, that this case must be reversed and sent back, and therefore, I have noticed the illegality of the 6th and 1st instructions, to prevent such on the future trial hereof. By the 2nd instruction, the jury are deprived of the power to give to the defend ants, interest for the amount of the money, which would have arisen from the sale of the lead in November, provided the lead would have sold in February, as high as it could have been sold in November. That is, the court told the jury, “that if they found from the evidence, that the price of lead in St. Louis, in the month of February, 1846, after the lead in question had arrived there, was as high as it had been in the last half of the month of November, previous, the defendants will not be entitled to have anything allowed them in 'this case as damages, for not'delivering said lead in November.” No matter therefore, how careless or negligent, soever, the'carrier may have managed this business, if the lead was at length delivered, and at the time of delivery it'was selling in market for as high a price as it had been selling at, during the period in which it by common care and diligence could have been delivered ; yet for the use of this money for months, nothing is to be allowed. I am satisfied this must have escaped the attention of the court below. The damages sustained by the defendants, therefore, in this case, although the lead was selling at the time it was delivered in February, as high as it had sold at in November, when it was in all probability to be delivered would be the interest for the time, upon the amount of such sales at least. The want of this money for two or three or more months, may have been a serious matter with the defendants as merchants ; they should at least have lawful interest counted in as part of the damages. This point has been already decided by this court. I am not disposed to complain of the 3rd instruction, yet there may be cases when such sales would not bo the best evidence of the value or price of commodity. In every case, the court should look at the nature of the evidence offered to prove price or value, and give to the jury such instructions as may best lead them to a proper conclusion. The actual sales in this case may have been the best criterion to ascertain value, and therefore, I will not condemn that instruction. The 8th instruction is in these words : “A sale of lead to arrive, does not give the market price, at the time of the sale.”

This proposition I imagine would hardly be controverted. Sucli sales arc on one’s own peculiar judgment. A speculator or close-watching, sharp-sighted observer of the past and the present might form an estimate for the future; and prepare for consequences by buying on future delivery; such sales are not the best evidence of the market price of the commodity thus sold. This instruction therefore, should have been given.

I am, therefore, of the opinion that the court below erred in giving the instructions numbered 6, 3 and 1, and in refusing to give the one numbered 8. The 5th instruction was not excepted to by defendant, but it is incorrect, notwithstanding, as it does not lay down a proper criterion, by which the jury are to estimate the damages. For these.reasons, therefore, it is my opinion that the judgment below ought to be reversed — that a new trial ought to be granted. This cause is, therefore, remanded with directions to the court below to allow the defendant’s motion for a new trial, and to proceed to hear and determine this cause in accordance with the views entertained by this court, and set forth in this opinion.