Collier v. Langan & Taylor Storage & Moving Co.

• Decision Date: 05 April 1910
• Citation: 147 Mo. App. 700,127 S.W. 435
• Parties: COLLIER v. LANGAN & TAYLOR STORAGE & MOVING CO.
• Court: Missouri Court of Appeals

127 S.W. 435

147 Mo. App. 700

COLLIER v. LANGAN & TAYLOR STORAGE & MOVING CO.

St. Louis Court of Appeals. Missouri.

April 5, 1910.

1. TRIAL (§ 132)—IMPROPER ARGUMENT OF COUNSEL—EFFECT.

Where, in an action for loss of goods by fire, the court, on objection to the argument of plaintiff's counsel that when plaintiff showed that defendant took the goods away and burned them up, stated that there was no evidence that the goods were burned up by defendant, and the counsel retracted his statement, the statement, though improper, because outside of the evidence, was not ground for reversal.

2. WITNESSES (§ 56)—COMPETENCY OF WIFE— AGENCY FOR HUSBAND.

Where a husband called up a corporation engaged in the business of moving household goods, and asked its representative to come to his house and arrange with his wife for the moving of his goods, the wife as the agent of the husband was competent to testify as to the arrangement made with the corporation for the moving of the goods, and the incidents connected therewith.

3. APPEAL AND ERROR (§ 971)—DISCRETION OF TRIAL COURT — EXAMINATION OF WITNESSES.

The action of the court in allowing a witness to refresh his memory from memoranda made some time after the happening of the events in issue is within the discretion of the trial court, and its ruling will not be disturbed unless the discretion has been abused.

4. CARRIERS (§ 107)—PRIVATE CARRIER—LIABILITY.

A private carrier with or without a reward is only a bailee, and his liability is determined by the rules governing the responsibility of bailees.

5. CARRIERS (§ 4) — "COMMON CARRIER" — WHO IS.

A "common carrier" is one who undertakes for hire to transport the goods of such as choose to employ him, and ordinarily carters and expressmen engaged in carrying freight to and from a depot or warehouse, or between places in the same locality, or between different localities, are common carriers.

6. CARRIERS (§ 108)—COMMON CARRIERS—LIABILITY.

A common carrier may limit his employment to the mere carriage of particular kinds of property, and when this is so, and the fact is known, he is not liable as a common carrier for any other property intrusted to his agents without his consent.

7. BAILMENT (§ 31)—LOSS OF GOODS—BURDEN OF PROOF.

A bailee for hire, who fails to deliver goods received by him, has the burden of excusing the nondelivery.

8. CARRIERS (§§ 4, 108)—"COMMON CARRIERS" —WHO ARE.

One holding himself out as engaged in the general business of moving household goods from one residence to another in a city, for all who choose to employ him, is a "common carrier," and is an insurer against all losses save those due to the act of God, or the public enemy, and a fire destroying goods in his possession is an accident against which he insures, unless the fire is the result of lightning.

9. APPEAL AND ERROR (§ 1033) — REVIEW — HARMLESS ERROR — ERRONEOUS INSTRUCTIONS.

A common carrier of household goods sued for loss of goods by fire while in its custody as carrier may not complain of instructions limiting its liability to the liability of a bailee for hire, where the jury could find that its negligence caused the loss, and where the uncontradicted evidence showed its liability as a common carrier, whether it was negligent or not.

Appeal from St. Louis Circuit Court; Eugene McQuillen, Judge.

Action by Needham C. Collier against the Langan & Taylor Storage & Moving Company. From a judgment for plaintiff, defendant appeals. Affirmed.

It is stated in the petition in this case upon which it was tried: That the defendant is a corporation located in the city of St. Louis, and as such held itself out to the public as and was on the date named engaged in conducting a general moving and wagon express business for hire. That on the date named it undertook and agreed for hire and reward, then and there promised by plaintiff to be paid, to load upon its vans, moving, and express wagons, the household goods, clothing, trunks, chattels, and effects of plaintiff, contained and then being in the residence of plaintiff in a house on Delmar avenue in that city, and transport and carry the goods, etc., by its vans, etc., along the streets of that city and redeliver them to plaintiff at the residence to which he was moving on Cleveland avenue, some two miles or more distant from the starting point. In pursuance of the undertaking and agreement, the defendant, on the day named, loaded into its vans, etc., the goods and chattels, etc., at the starting point for the purpose of carrying them to the new residence, and there to redeliver them to plaintiff. That defendant by its servants and agents so negligently and carelessly conducted itself in the handling, loading, and carrying of the goods that, while they were in the sole care and custody of defendant and were being carried by it in its vans, a great part of the goods, etc., were lost, damaged, etc and destroyed by fire as a direct result of the negligence of the defendant. An itemized list of the articles damaged and destroyed, with their value, is incorporated in the petition; damages in the sum of $410.25 being claimed, with interest thereon at the rate of 6 per cent. per annum from the 31st of March, which was the date of the transaction, to date of judgment. The answer, after averring that defendant "denies each and every allegation in plaintiff's said petition contained, except the averments specially admitted therein," by way of further answer sets up that defendant was employed to remove and convey the furniture of plaintiff, as alleged in the petition; that defendant is engaged in the moving business; that at the time alleged in the petition defendant had the latest and most modern and approved vans to cart and move furniture; that defendant used them for moving the furniture and detailed for the manual labor necessary in moving it men experienced in the moving and transporting of furniture; that all of plaintiff's furniture was carefully and securely placed in the van of defendant; that all the care and precaution that was usual in the moving of furniture was taken and made use of by the defendant in moving plaintiff's furniture; that neither defendant or any of its agents caused the fire which burned or destroyed any of plaintiff's furniture; that the fire, if any, which destroyed plaintiff's furniture while it was being hauled or carted in the moving vans of defendant, "was caused by persons other than those in the employ of defendant, and was an occurrence over which defendant had no control; and that it could not, by reason of its long experience in the moving and hauling business, have foreseen or expected such a happening, and was the result of no carelessness or negligence on the part of this defendant." The reply was a general denial.

At a trial before the court and jury, plaintiff, introduced as a witness on his own behalf, stated: That the defendant was engaged in the general moving and storage business; that is, in moving household furniture from one residence to another, moved furniture from one residence to another, was in the general moving and storage business, as he understood, moving from one residence to another any one that desired to employ it. That a day or two prior to the moving day plaintiff called up the company and asked its representative to come to plaintiff's house and arrange with his wife as to the moving of the furniture. He himself made no arrangement or agreement with defendant as to prices. He was present when the goods were loaded into the vans. The goods when loaded were in good condition, save usual wear and tear of furniture, incident to use in any household. Some of it had been in use for considerable time; other of it was comparatively new. Two vans, loaded with the furniture and household effects, started from the Delmar avenue residence of plaintiff, and he took a street car and went to the Cleveland avenue place to be there when the goods arrived. One of the vans came as far as Cleveland and Tower Grove avenues, and he saw it standing there while he was on the porch of the Cleveland avenue house. There was no driver on the seat. Plaintiff went to the corner of Tower Grove and Cleveland avenues to ascertain what the trouble was about, why the van was not proceeding any further. The other van was one or two streets north of Cleveland avenue. Plaintiff went to where it was and saw there was a fire in that van that was destroying some of the furniture in it. When he arrived there the goods were being taken out of that van. A long examination then took place as to the value of the goods destroyed or damaged; the effect of it being that plaintiff and his wife had made out a list together of the damage, and that they estimated the loss at the amount stated in the petition—the load consisting of furniture, wearing apparel, and usual household effects of a family. Some of the stuff was burned entirely and some damaged. Some of the damage was occasioned by the fire itself, and other by the hasty manner in which the goods were taken out of the van. Some small articles were lost. Asked to state particularly what sort of goods defendant was engaged in hauling and moving, he answered, "Household goods, such as one person moves from one place in the city to another." A protracted cross-examination followed, mainly directed to the value of the goods and to the plaintiff's knowledge of the value, and as to how a certain memorandum had been made up from which the list embodied in the petition had been taken. The vans used were large moving vans, such as he had seen around the city. Supposed the men who carried the furniture down and loaded it in the vans did so in the usual way. All that he knows about that was that he saw them putting the furniture in the wagon. Saw them tying the tail gate up, and the van seemed full, and they drove off. Thought they knew how to load the wagon. Asked if he claimed that defendant's agents were guilty...