Fehrenbach Wine & Liquor Co. v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 02 June 1914
• Docket Number: No. 1197.,1197.
• Citation: 182 Mo. App. 1,167 S.W. 631
• Parties: FEHRENBACH WINE & LIQUOR CO. v. ATCHISON, T. & S. F. RY. CO.
• Court: Missouri Court of Appeals

167 S.W. 631

182 Mo. A. 1

FEHRENBACH WINE & LIQUOR CO. v. ATCHISON, T. & S. F. RY. CO.

No. 1197.

Springfield Court of Appeals. Missouri.

June 2, 1914.

1. INDIANS (§ 35)—INDIAN RESERVATIONS— INTOXICATING LIQUORS—IMPORTATION INTO INDIAN COUNTRY—SEIZURE.

Rev. St. U. S. § 2140, authorizing federal officers to seize and destroy ardent spirits found in the Indian country, confines the authority of such officers to acts performed in the Indian country, and does not authorize them to seize or destroy liquors in a state, however near it may be to the prohibited line of the Indian country, and though it was intended that the liquor should later be transported into such country.

2. CARRIERS (§ 92)—LOSS OF GOODS—ILLEGAL SEIZURE BY OFFICER—DEFENSES.

Where liquor in the custody of a carrier was illegally seized and destroyed by federal officers, it was no defense to the carrier's liability for the loss thereof that it acted in good faith in surrendering the liquor, or that the liquor may have been seized by force.

3. CARRIERS (§ 92)—LOSS OF GOODS—CARRIER'S LIABILITY.

A carrier was liable as an insurer for loss of liquors illegally seized by federal officers, on the ground that it was intended to transport them into the Indian country.

4. CARRIERS (§ 92)—LOSS OF FREIGHT—SEIZURE WITHOUT LEGAL PROCESS—CARRIER'S LIABILITY.

Where an officer without proper legal process seized and destroyed liquors in possession of a carrier, the officer was a mere trespasser, and the carrier was liable for his act.

5. JURY (§ 14)—RIGHT TO JURY TRIAL—DISCHARGE OF JURY.

Where plaintiff sued a carrier for loss of goods, the action was one to recover money only, in which defendant was guaranteed a right to trial by jury, by Const. art. 2, § 28, and hence it was error for the court to discharge the jury without directing a verdict, and, after considering the evidence, to itself render judgment for plaintiff.

6. TRIAL (§ 140)—QUESTIONS FOR COURT OR JURY—DIRECTION OF VERDICT.

Where the burden of proof was on plaintiff to establish his case, and he attempted to do so by his own oral evidence, and his reputation was impeached, defendant was entitled to have his credibility passed on by a jury, and hence the court had no jurisdiction to direct a verdict.

7. TRIAL (§ 139)—QUESTIONS FOR COURT OR JURY.

Where a fact to be established is relative and uncertain, such as the value of property, the evidence to establish the same is advisory only, and must be submitted to a jury.

8. CARRIERS (§ 135)—LOSS OF GOODS—MEASURE OF DAMAGES.

In an action against a carrier for loss of goods, on which freight has not been paid, the consignee's measure of damages is the value of the goods at destination, less the freight.

9. EVIDENCE (§ 35)—JUDICIAL NOTICE.

The Missouri courts will not take judicial notice of the fact that all of Kansas is prohibition territory, and that intoxicating liquors in that state have no market value.

10. EVIDENCE (§ 35)—JUDICIAL NOTICE— LAWS OF SISTER STATE.

Courts of one state do not take judicial notice of the laws of a sister state.

11. EVIDENCE (§ 80)—LAWS OF OTHER STATES —PRESUMPTIONS.

Kansas never having been under common-law jurisdiction, courts of Missouri will presume that Kansas laws are the same as in Missouri.

12. CARRIERS (§ 135)—LOSS OF GOODS—DAMAGES.

Where, in an action against a carrier for loss of whisky, the only evidence of damage was the value of the whisky at the point of shipment, plaintiff could not recover more than nominal damages.

Appeal from Circuit Court, Jasper County; D. E. Blair, Judge.

Action by the Fehrenbach Wine & Liquor Company against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Thomas R. Morrow, John H. Lathrop, and Geo. J. Mersereau, all of Kansas City, and Henry L. Bright, of Carthage, for appellant. Wolfe & Burnett, of Joplin, for respondent.

STURGIS, J.

The plaintiff, a wholesale liquor dealer of Joplin, Mo., sues defendant, a common carrier, for the loss or conversion of several shipments of whisky received by defendant at Joplin for transportation to, and delivery at, Caney, Kan. The defendant admits the receipt of the liquors for that purpose, and its failure to deliver same, and seeks to justify such failure by alleging and proving a safe transportation of the liquors to Caney, Kan., and its seizure there while being held for delivery at its freighthouse by a special officer of the United States, acting under the power and authority conferred on him by section 2140 of the Revised Statutes of the United States, and who took the same from defendant and then and there confiscated and destroyed the same. The United States statute referred to provides that if any such officer has reason to suspect or is informed that any person is about to or has introduced any spirituous liquors into the Indian country in violation of law, he may search the instrumentalities of transportation and places of deposit of such person, and if any such liquor shall be found, he may seize the same, with the means of transportation and other goods of the offender, and proceed against same by libel in the proper court, and that it shall be his further duty to take and destroy any ardent spirits found in the Indian country, except such as may be introduced therein by the War Department. The evidence shows that the town of Caney is in the state of Kansas, but near the border between that state and the part of Oklahoma which is defined as Indian country and protected from intoxicants by said act of Congress. There is abundant evidence in the record to show that the liquor in controversy was intended to be taken across the line into the Indian country in violation of law, and that the consignees would have so used it had it not been seized and destroyed before its delivery to them. The evidence shows that a duly commissioned officer of the United States exhibited his commission as such officer to defendant's agent having charge of its freighthouse, and this liquor at Caney, Kan., and thereupon took possession of the liquor in question, removed it from such freighthouse, wrote the word "confiscated" on the freight bills, and thereupon destroyed the liquor. The defendant's agent neither acquiesced in nor resisted the taking of the liquor in the manner above stated.

The defendant must fail in this defense, notwithstanding these facts, for the reason that any and all authority conferred by section 2140 of the United States statutes is confined to acts performed in the Indian country. The act of Congress in question does not authorize a federal officer to seize and destroy spirituous liquors in the state of Kansas, however near it may be to the prohibited line of the Indian country. The officer's jurisdiction in this respect is territorial and confined to the Indian country. Such is the ruling of the United States Circuit Court of Appeals for this circuit in the case of Evans v. Victor, 204 Fed. 361, 122 C. C. A. 531, where the court, in ruling that the land in the original town of Muskogee, Okl., is not part of the Indian country, said:

"It is conceded by counsel for defendants, and is settled by repeated decisions of the Supreme Court, that the power of the officers of the Interior Department, and of the officers of the army, to cause such searches and seizures is limited, by the terms and the true construction of section 20 of the act of 1834, and of sections 2139 and 2140 of the Revised Statutes, to searches and seizures in the Indian country, and that they are without authority to cause such searches and seizures outside the Indian country. * * * The result is that the defendants had no authority to make the search which they made, and those they threaten to make, unless the land in the city of Muskogee on which the plaintiff's drug store was located was in the Indian country."

In Bates v. Clark, 95 U. S. 204, 24 L. Ed. 471, where the seizure of liquors at a place not in the Indian country was sought to be justified under this act of Congress, the court ruled:

"The plaintiffs belows violated no law in having the whisky for sale at the place where it was seized; and the twentieth section of the act of 1834, as amended by the act of 1864, conferred no authority whatever on the defendants to seize the property."

See, also, Clairmont v. United States, 225 U. S. 551, 32 Sup. Ct. 787, 56 L. Ed. 1201.

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