Chouteau v. Uhrig

• Decision Date: 31 March 1846
• Citation: 10 Mo. 62
• Parties: CHOUTEAU AND OTHERS v. UHRIG AND OTHERS.
• Court: Missouri Supreme Court

10 Mo. 62

CHOUTEAU AND OTHERS

v.UHRIG AND OTHERS.

Supreme Court of Missouri.

March Term, 1846.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

SPALDING, for Appellants.

I. The instruction given for the plaintiff below was erroneous in the following particulars: 1. It defines the ordinary care which it requires to be, such as a prudent man exercises about “his own property,” instead of saying such as a prudent commander of a boat exercises about his keel in towing the same. 2nd. The court in this instruction tells the jury that the Mermaid proceeded in the “night-time,” and leaves it to the jury to say whether it was a want of proper care to proceed with the keel in the “night-time,”--thus assuming this fact, and taking it from the jury: whereas the testimony on this head was conflicting. One of the witnesses, Chas. F. Deane, says, it was “early in the morning,” and that as they went on it was light. 3. In this instruction the court assumes the fact that, the plaintiffs were owners of the keel, and that they had hired the keel to the defendants, or bailed her in some way, and prohibits the jury from passing on this. As to the ownership of the keel, the only testimony was of Oscar Nicolas, who said, “that Andrew Uhrig, Joseph Uhrig, W. H. Hastenhagen, and John Shreiber, were owners of the Pearl, to which the Hornet belonged “in the fall of 1842,” not stating at what time in the fall, nor whether during the whole of the fall. The court say the defendants are liable in this action if the loss of the keel was occasioned by the want of care; although the jury from the evidence might not have been satisfied that plaintiffs were owners of the keel at the time, either from the vagueness of the testimony or from the appearance and demeanor of Oscar Nicolas. 4. The same observations apply as to the assertion in the instruction that a storm arose. There is testimony tending to prove, and perhaps the court might think fully proving the fact; but its existence should have been left to the jury to find from the testimony. 5. The instruction is evidently erroncous in leaving it to the jury whether there was a want care in omitting reasonable efforts to rescue the keelboat after it had struck; thus assuming and so stating to the jury that defendants had omitted reasonable efforts to rescue the keel. 6. The instruction then proceeds and says that “if the jury find that there was such want of care, and that the keelboat was thereby destroyed, they will find for the plaintiffs.” This part of the instruction takes all the rest of the case from the jury, and authorizes a recovery if they find the boat was lost for want of care, thus assuming that plaintiffs were owners of the keel, that defendants were owners of the Mermaid, that defendants, personally or by agent, had the keel and were bound to return her to plaintiffs on same contract, &c. 7. The instruction is wrong also in declaring the measure of damages.

II. The instructions offered, by defendants and refused, are omitted; and this court therefore cannot know whether there is error in that refusal, and this want of knowledge is not the act of the party or his counsel. This loss, therefore, ought not to prejudice the appellants. The court below acted, but it is not in the power of man to show what its action was, by its own omission or rather its clerk's.

III. The court erred in not granting a new trial. 1. Because the testimony shows that there was no want of care, and therefore the verdict is against evidence. I refer to the bill of exceptions as showing a case of no unreasonable exposure of the keel, but merely using her in just such a way as was proper. A steamboat cannot stop at every puff of wind, or at the sight of every cloud. The facts being set forth, it is a matter of law whether there was due care, and the court is called upon to say whether there was or not. 2. Because of the newly-discovered evidence contained in the affidavits of Chouteau and Call.

FIELD, for Appellees.

I. There was no error in the instructions given to the jury. The general proposition of law with which they set out is scrupulously correct. The four particulars to which the jury were permitted to apply the general rule, are fairly disclosed in the evidence. 1. As to proceeding on the voyage in the night--see the following references to the testimony--Deane in bill of exceptions, p. 15, 17; Grapevine, p. 18; Parks, p. 23. 2. As to the storm: Deane, p. 16; Grapevine, pp. 18, 21, 22; Parks, p. 23; Dodd, p. 24. 3. As to the place of landing: Deane, p. 17; Grapevine, p. 22; Parks, pp. 23, 24. 4. As to the efforts to rescue the keel: Parks, p. 24.

II. There was no error in refusing the second new trial. 1. For it is not pretended the jury erred in matter of law. See Hill v. Wilkins, 4 Mo. R. 86; Humbert v. Eckert, 7 Mo. R. 259. 2. The affidavits of newly discovered evidence are liable to these objections: A. No proper diligence is shown to get the evidence, the existence of which must have been known to the officers of the boat who made the contract with Blackmore. B. The pretended evidence goes only to one point ( i. e. the efforts to save the keelboat), on which obviously the case did not turn, as the jury gave the whole value of the boat. c. Even to that point the evidence of Call is more favorable to plaintiffs than to defendants, as he proves that he could have saved the boat if he had been employed at an earlier day.

NAPTON, J.

This was an action of assumpsit brought by Uhrig and others as owners of the keelboat Hornet, against Chouteau and others, owners of the steamboat Mermaid, to recover the value of the said keelboat, alleged to have been lost through the negligence of the officers of the Mermaid. The keelboat was hired to the captain of the Mermaid, at the rate of $2 50 per day, to be returned in good order at the option of either party. The keelboat was snagged and sunk whilst the Mermaid was attempting to land on the Illinois shore, just above the mouth of the Missouri. The plaintiffs obtained a verdict, but the...