Dilworth v. McKelvy

• Decision Date: 31 March 1860
• Parties: DILWORTH, Appellant, v. MCKELVY, Respondent.
• Court: Missouri Supreme Court

30 Mo. 149

DILWORTH, Appellant,

v.MCKELVY, Respondent.

Supreme Court of Missouri.

March Term, 1860.

1. Where, in an action for the possession of personal property, under the seventh article of the practice act (R. C. 1855, p. 1242), the plaintiff obtains possession of the property upon giving bond, and fails to prosecute the action with effect, and it appears that the defendant has only a special interest in the property as against the plaintiff--for example, a lien thereon for money due from the plaintiff to himself, or a mere claim to possession for a limited period; in such case judgment should not be rendered in favor of the defendant for the return of the property or the payment of the entire value of the property, but the value of the interest of the defendant in the property should be assessed, and judgment should be rendered in favor of the defendant for the value so assessed, or the return of the property until such value be paid, at the option of the defendant.

2. Where the defendant has only a special interest and the plaintiff is a stranger to the title, the entire value may be recovered by the defendant as special owner, and he will be answerable over to the general owner to the extent of the latter's interest; in such case, the general value of the property would be assessed without regard to the value of the special interest. The judgment in each case must be modified by the circumstances, so that the merits of the controversy may, if possible, be settled in one action.

3. Where goods are shipped on board a barge to a port on the western waters, and the barge on the voyage is accidentally grounded and in danger of being lost by the perils of navigation together with the goods on board, and it becomes necessary, for the purpose of saving the barge and lumber from destruction, to unload and reload the same, and the master does so load and reload and take care of the barge and goods when so unloaded, it is a case for contribution, of general average.

Appeal from St. Louis Court of Common Pleas.

The following are the instructions given by the court, of its own motion, and on which the case was submitted to the jury: “1. If the jury believe from the evidence that the lumber sued for was with the other lumber shipped under the bill of lading read in evidence, and that, on the voyage from Pittsburgh to St. Louis, on the Ohio river, the said barge No. 17 was accidently grounded and in danger of being lost by the perils of navigation, together with the lumber on board, and that, for the purpose of saving the barge and lumber from destruction, it was necessary to unload and reload said lumber, and defendant, as master of the barge, did unload and reload the lumber, and take care of the barge and lumber whilst so unloaded, the owner of the lumber became liable for a part of the costs and expenses incurred by the defendant, as follows: that is, the barge, the freight list of the same, and the lumber, deducting the freight were each to contribute to make up said expenses and costs according to their value, and for the amount chargeable to the lumber the defendant, as master of the barge, had a right to hold possession of the same until the amount was paid or secured to him. 2. If therefore the jury shall find that the defendant had a right to hold the lumber according to the principles above stated, and did withhold the same from plaintiff on that account and no other, the jury ought to find for the defendant. 3. If, however, the jury shall find that the defendant had no such right, or did not withhold the lumber from the plaintiff on that ground, or if the defendant withheld the lumber known to him to be larger than the sum due to him, the jury will find for the plaintiff.”

The other facts of the case sufficiently appear in the opinion of the court.

J. K. Knight, for appellant.

I. The court erred in refusing the instructions asked by plaintiff. (3 Kent, Com. 232; Story on Bailments, § 583; 2 Phillips on Ins. 1269, 1271; Stevens & Ben. 60, 101, 137, 280; 1 Conkl. Adm. 255, 221; 10 How. 270, 303; 1 Holts. 192; 11 S. & R. 61; 3 Stew. & Port. 136; 4 Id. 383; Angell on Carr. 169; 1 Louis. 354; 6 How. 382; 28 Mo. 360; 23 Barb. 240; 8 Wend. 445; 21 Wend. 300; 5 Ham. 306; 3 M. & S. 483; 1 La. Ann. 57; 1 Hagg. 236; 1 Curt. 378; 10 Pet. 108; 2 Cranch, 240; 2 Peters, Admr. 295.) The instructions given by the court did not state the law correctly; they were calculated to mislead. The first instruction assumes that accidental grounding is one of the excepted perils. This is erroneous. (10 How. 270; Benecke on Average, 138, 215; 1 Conkl. Admr. 221, 230.) It next assumes that the expenses of the master and crew, in unloading and reloading the lumber to avoid the perils of navigation, could become a charge on the same by way of lien for salvage service without any actual or constructive abandonment, distress or shipwreck. It leaves it to be inferred that the barge, the freight list of the barge, and the lumber, deducting the freight, were the only subjects to contribute to make up the expenses. If it is a case of general average the steamboat, the barges in tow, and all their freight and cargo must contribute. (3 Kent, 232; 1 Louis. 354; 1 Sto. C. C. 463; 2 Sumn. 389.) The court erred in assessing the damages after a general verdict by the jury without notice to the plaintiff and on the mere motion of defendant. (1 Ld. Ray, 324; 5 Ohio, 227; 9 Ohio, 131; 21 Wend. 90; 28 Mo. 360.) The court erred in assessing the value of the property without other proof as to its value than the statement in the petition; so also in assessing the value at eight hundred dollars, when the defendant only claimed in his answer two hundred and ninety-eight dollars and sixty-four cents. The amount ought not to exceed the value of his special interest. (2 Seaman v. Luce, 23 Barb. 240.)

F. C. Sharp and C. S. Hayden, for respondent.

I. The instruction of the court correctly declares the principles of the law of general average as applicable to this case. (1 Parsons on Mar. Law, 288, 195, 297; 2 Phill. on Ins. 1269, 1288; 10 How. 270, 314; Abbott on Shipping, 475; 2 Marsh. on Ins. 538.) The verdict of the jury embraced all the issues in the case. The court properly gave judgment for the value of the property. The statute has no reference to the common law action of replevin. There are no vacancies to be filled up by the common law. The statute “undertakes to cover the whole ground and present a complete system.” (Collins v. Hough, 26 Mo. 153.) The words of the statute are plain and positive, and will not on this point admit of construction. (R. C. 1855, p. 1242, § 11.) The only issue decided by the jury was whether the plaintiff was entitled to the possession. This being the sole thing settled by the jury, how could any other judgment be rendered in the case than that which was given? The defendant, in the evidence he adduced, was governed by the issue to be tried. He might have had other claims upon the property than that he set up--might have been responsible to third parties for the rest of the property, but, knowing, that the only issue on the trial was the right to possession, he did not adduce such evidence. In short, the absolute and ultimate ownership of the property was not tried nor necessarily in question.

NAPTON, Judge, delivered the opinion of the court.

This was an action by the general owner of property against a person claiming a lien on it. The suit was prosecuted under the provisions of the seventh article of our practice act, and the property was delivered to the plaintiff. A verdict was found for the defendant, which, however, under the instructions of the court, simply determined that he was entitled to the possession of the property, and a subsequent proceeding was had to inquire into the value of the property, which resulted in its assessment at its absolute value, without any ascertainment of the extent of the defendant's interest. A judgment was accordingly rendered for the full value of the property, or...