Austin v. St. Louis & St. Paul Packet Co.

• Citation: 15 Mo.App. 197
• Parties: ALBERT S. AUSTIN, Respondent, v. ST. LOUIS and ST. PAUL PACKET COMPANY, Appellant.
• Decision Date: 12 February 1884
• Court: Missouri Court of Appeals

15 Mo.App. 197

ALBERT S. AUSTIN, Respondent,

v.ST. LOUIS and ST. PAUL PACKET COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 12, 1884.

APPEAL from the St. Louis Circuit Court, HORNER, J.

Affirmed.

GIVEN CAMPBELL, for the appellant: The petition does not state facts which constitute a cause of action.-- Waldheier v. Railroad, 71 Mo. 517; Faulkner v. Faulkner, 73 Mo. 335.

C. S. HAYDEN, for the respondent.

BAKEWELL, J., delivered the opinion of the court.

The petition alleges that the defendant corporation is a common carrier; that plaintiff delivered to defendant at La Crosse, Wis., and to its agents then in charge of, and running, the steamer Arkansas, for transportation and delivery to plaintiff at St. Louis, certain household goods worth $500, which defendant received, and, for value, agreed to transport them on the Arkansas, by the Mississippi River, and deliver them within a reasonable time to plaintiff at St. Louis; that defendant has failed and refused to deliver the goods to plaintiff, whereby they have been lost to plaintiff, to his damage, etc. The answer is a general denial. There was a verdict and judgment for $500. Plaintiff remitted $67.31, upon which the motion for new trial was overruled, and there was judgment for $432.69.

It is earnestly contended for appellant that there is no substantial evidence to support the verdict. It appears from the evidence, that at the date of the transaction in question there were two transportation companies engaged in running boats between St. Paul and St. Louis, one was called the St. Louis and St. Paul Packet Company. This is the defendant, a Missouri corporation, having an office in St. Louis. William F. Davidson is president and Frank Johnson the secretary of this company. The other corporation is called the St. Louis and St. Paul Passenger and Freight Line. Of this company S. S. Davidson is president. At the time the arrangement was made for shipping the goods in question, both the lines were in the habit of landing their boats in St. Louis at the wharf-boats which had formerly been used by the Keokuk Line. On one of these wharfboats, the old sign of the Keokuk Line remained. It does not appear that there was any sign on the other wharf-boat; but they both lay together, one being used for receiving, and the other for discharging goods. The steamer War Eagle was a boat of the St. Louis and St. Paul Packet Company Line; and the Arkansas appears to have been a boat used by the St. Louis and St. Paul Passenger and Freight Line, and owned by the president of that line, though there is testimony to the effect that she was advertised to run for the other line and was commonly spoken of by steamboat men as running for that line, and that plaintiff had notice of this.

At the time of the accident, the Arkansas was coming down the river towing two barges, one on each side. One of these barges, on which was a large portion of plaintiff's goods, struck the Burlington bridge and sunk. A large box of goods of plaintiff's was lost. Some of the goods were recovered and taken on board the Arkansas in a damaged condition. Johnson, the secretary of defendant, told plaintiff that the barge that was sunk was defendant's barge.

Plaintiff testified that in September, 1881, the goods in question were at New Lisbon where his wife lived; that he went to Johnson, the secretary of defendant, whom he had known for years, having worked as ship carpenter on boats of the company of which Johnson was secretary, and of the Keokuk Line, with which Johnson had formerly been connected. He saw Johnson on the wharf-boat of defendant, and told him that he wanted to bring his wife and household goods from La Crosse, and would like to make arrangement with Johnson to bring them and pay freight on arrival. Johnson said: “Certainly. We can manage that for you;” and told him to go to the office on the wharf-boat. There he was told to go to the general ticket agent, and he would give a letter for plaintiff's wife to show to the captain of the War Eagle which was then lying at the wharf-boat. Plaintiff went upstairs to the ticket agent on the wharf-boat, and he gave him a sealed letter directed to the captain of the War Eagle to mail to his wife, and said she must give that to the captain of the War Eagle, and he would bring her and the freight to St. Louis on the terms agreed upon between the agent and plaintiff on the wharf-boat. Plaintiff's wife was at New Lisbon. Plaintiff wrote to her as directed, enclosing the sealed letter, and telling her the arrangement he had made with Johnson. In October, plaintiff found some of his goods in a damaged condition on the Arkansas at defendant's wharf-boat, and was told by the captain that the rest were in the river. He then went to Johnson at defendant's office on the levee. Johnson said they could do nothing; that the thing was an accident, that he must stand his loss; that they had lost their brand new barge by the same disaster. Plaintiff then went to the general clerk on the wharf-boat and asked for the charges. The clerk handed plaintiff a bill as follows:--“Daily line. Per steamboat Arkansas, trip No. 19 (M.) Albert Austin to St. Louis and St. Paul Packet Company, Dr. pa. H. H. weight 1970, rate 45, amount $8.85; charges $8.82, total $17.37.”” Plaintiff then handed to the clerk a written protest prepared by his attorney, and which was directed to defendant, and counted out the money, $17.37, on the counter. The clerk threw it back, and told plaintiff to go to Mr. Johnson for his freight. To which plaintiff replied, that Johnson had just sent him there. Plaintiff then went back to the general office of defendant, where he found only W. F. Davidson, the president of defendant, who looked at the bills and protest, and said: “I see we have got to have a lawsuit with you. We might as well have it first as last.” Davidson then folded up the protest, and kept it. Afterwards, plaintiff met Johnson and told him they had refused to give him his goods. Johnson replied: “Well, they don't know what they are about. Come with me, I will give you your freight.” Johnson and plaintiff went together to the wharf-boat, and Johnson got plaintiff's bill from the clerk in the office, and asked him to sign a paper, and take the freight. Plaintiff refused to sign the paper, and left without getting his goods.

It further appeared that plaintiff's wife delivered the sealed letter to the captain of the War Eagle, which was one of defendant's boats. The captain told her that her goods had come on from New Lisbon, but were side-tracked at La Crosse, and not accessible; that he could not wait for them; but that they would be put on the next boat of the line coming down, which would probably be the Arkansas. She came to St. Louis on the War Eagle.

On behalf of defendant, Baker swore that he was agent, not of defendant, the packet company, but of the freight line, and that the letter he gave to plaintiff was directed to the clerks of the steamer of the “St. Louis and St. Paul...