Collier v. Langan & Taylor Storage & Moving Company
| Decision Date | 05 April 1910 |
| Citation | 127 S.W. 435,147 Mo.App. 700 |
| Parties | NEEDHAM C. COLLIER, Respondent, v. LANGAN & TAYLOR STORAGE & MOVING COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Argued and Submitted March 10, 1910. [Copyrighted Material Omitted] [Copyrighted Material Omitted]
Appeal from St. Louis City Circuit Court.--Hon. Eugene McQuillin Judge.
AFFIRMED.
STATEMENT.--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 and 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 nor 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 of negligence in loading, witness answered, that he didn't know anything about that. On recross-examination plaintiff described more particularly the condition of the household furniture and effects.
Plaintiff's wife was then offered as a witness and she was asked what passed between her and the defendant company with reference to the moving of these goods. She testified that the representative of the company called at the house; that Mr Collier, the plaintiff, had called him up, asked him to come and speak to her about moving the furniture; she carried him over the house and showed him what was to be moved and he agreed to move all for the sum of from eighteen dollars to twenty dollars; he agreed to move everything that was in the house; doesn't remember that anything further passed between them; nothing was said about how the things should be prepared; the only arrangement was that he would move them on a certain day from Delmar avenue to Cleveland avenue, and further than that witness doesn't think anything was said. When he made the price she agreed to it. Witness was then handed the list of the goods moved, as they are enumerated in the petition and asked what defendant had done with reference to moving the goods. This was objected to by counsel for defendant on the ground of the statute, which counsel claimed makes the witness disqualified on behalf of her husband; that according to the testimony of her husband, he had called the defendant by telephone and told him to call at his residence and that his wife would instruct defendant what to do, made her competent to testify what arrangements she had made as his agent, but that in going on and testifying as to the value of the property and as to what happened to it thereafter, she came within the statutory disqualification; that she had a specific agency merely to employ the defendant but had no agency to appraise what was burned or to make out the memorandum showing it. Asked by the court if he did not think the agency of the wife extended to anything that might be necessary to be done in connection with the moving of the goods or that might occur in connection therewith, counsel answered that he did not think so. The court asked counsel why, and counsel replied, "I think if she is going to act as appraiser--" and the court replied, "Which grows out of the deal--" to which counsel for defendant replied that to save time he would save an exception. Whereupon Mrs. Collier proceeded to testify that on the morning of the moving the representative of defendant came there and commenced moving and taking down the furniture and other household goods and, proceeding to go into details, stated that the goods were carried into the vans and loaded and carried from the Delmar to the Cleveland avenue house. She remained at the Delmar avenue residence while her husband was at the Cleveland avenue house. She remained at the Delmar avenue house until the last...
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