Fehrenbach Wine & Liquor Company v. The Atchison, Topeka and Santa Fe Railway Company
| Decision Date | 13 June 1914 |
| Citation | 167 S.W. 631,182 Mo.App. 1 |
| Parties | FEHRENBACH WINE & LIQUOR COMPANY, Respondent, v. THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Jasper County Circuit Court, Division No. Two.--Hon David E. Blair, Judge.
REVERSED AND REMANDED.
Case reversed and remanded.
Thomas R. Morrow, John H. Lathrop, George J. Mersereau and Henry L Bright for appellant.
(1) United States deputy special officer, T. E. Sisson, had lawful right to seize said liquor and take it out of the possession of the defendant and the defendant on that account is not liable for the loss of same. Sec. 2140, U. S. R. S.; Sec. 5750, Pierce's U. S. Code; F. Statutes Annotated Vol. 3, p. 386. (2) The action of the court in discharging the jury without the consent of the defendant was a denial of the constitutional right of a trial by jury. Sec. 28, art II, Constitution of Mo.; Kansas City v. Smith, 238 Mo. 323; Frowein v. Poage, 231 Mo. 82. (3) The denial of the right of trial by the jury may be taken advantage of by motion in arrest of judgment and by motion for a new trial. Frowein v. Poage, 231 Mo. 82; Vaughn v. Scade, 30 Mo. 600; Cox v. Moss, 63 Mo. 432; Scott v. Russell, 39 Mo. 409; Brown v. Railroad, 37 Mo. 298; Briggs v. Railroad, 111 Mo.App. 168. (4) The defendant was entitled to have the jury determine the credibility of the testimony offered, even though it offered nothing to contradict that presented by plaintiff. The court could not assume as a matter of law that the testimony of the plaintiff was true simply because no one by words contradicted what had been uttered. Link v. Jackson, 156 Mo.App. 63; Wolff v. Compbell, 110 Mo. 114; Cleveland & A. M. & L. Co. v. Rose, 135 Mo. 101; Schroeder v. Railroad, 100 Mo. 322; Huston v. Tyler, 140 Mo. 252; Cannon v. Gas Co., 145 Mo. 502; Dalton v. Poplar Bluff, 173 Mo. 39; Bank v. Hammond, 124 Mo.App. 181; McCrosky v. Murray, 142 Mo.App. 133; Gordon v. Burris, 141 Mo. 602; Munroe v. Railroad, 155 Mo.App. 710. (5) The general rule is that in case of the loss or nondelivery of goods by a carrier, the measure of damages recoverable by the shipper, is the market value of the goods at the point of destination. Wilson v. Railroad, 129 Mo.App. 347; Atkisson v. The Castle Garden, 28 Mo. 124; Austin v. Packett Co., 15 Mo.App. 197; Rogan v. Railroad, 51 Mo.App. 665; Gray v. Railroad, 54 Mo.App. 671; Medicine Co. v. Railroad, 126 Mo.App. 455; Farwell v. Price, 30 Mo. 587; Rice v. Railroad, 3 Mo.App. 27; Blackmar v. Railway, 101 Mo.App. 557; Railroad v. Traube, 59 Mo. 355; Commission Co. v. Railroad, 80 Mo.App. 164; Warehouse v. Railroad, 124 Mo.App. 545. (6) In the absence of a special contract of shipment providing that the measure of damages should be the value of the goods at the place and time of shipment and in the absence of evidence showing the market value of the goods at the place of destination, the finding of the court should have been for nominal damages only. Rogan v. Railroad, 51 Mo.App. 665; Warehouse v. Railroad, 124 Mo.App. 545.
Wolfe & Burnett for respondent.
(1) There is nothing in Sections 2139 and 2140 of the Revised Statutes of the United States authorizing such deputy special officer to make searches for and seizure of liquors outside of the Indian country without warrant or process of law. Evans v. Victor, 204 F. Rep. 361. (2) The pretended seizure and confiscation of the liquor in question by said United States Deputy Special Officer, acting under and by virtue of his commission of appointment and nothing more, was without warrant or process of law and utterly void. 6 Words and Phrases, 5643, 5644; 5 Words and Phrases, 4069; Nickey v. Railroad, 35 Mo.App. 79; Bennett v. Am. Express Co., 13 L.R.A. 33; Heyman v. Railroad, 203 N. S. 270. (3) The action of the court in the discharging of the jury at the close of all the evidence was properly within its sound judicial discretion, as all of the facts disclosed by the testimony of both parties established without contradiction the plaintiff's right to recover. Bank v. Hainline, 67 Mo.App. 483; Henley v. Globe Ref. Co., 106 Mo.App. 20; Kingsbury v. Joseph, 94 Mo.App. 298; Ferguson v. Venice Trans. Co., 79 Mo.App. 352; Straus v. American Chewing Gum Co., 134 Mo.App. 110; Morgan v. Durfee, 69 Mo. 476; Hendrick v. Lindsay, 93 U.S. 143. (4) The constitutional right of appellant of a trial by jury in a proper cause will not be questioned. But it is respondent's contention that the action of the court in discharging the jury without the consent of the defendant was not, in any sense, a denial of its constitutional right of a trial by jury. Ferguson v. Venice Tr. Co., 79 Mo.App. l. c. 361. (5) Where the defendant's evidence proves no defense, the court should direct a verdict for the plaintiff. Poindexter v. McDowell, 110 Mo.App. 233; Hester v. Lange, 80 Mo.App. 34; Mosby v. Commission Co., 91 Mo.App. 500; Stephens v. Barbers Supply Co., 67 Mo.App. 587; Crawford v. Staton, 131 Mo.App. 263; Alexander v. McNally, 112 Mo.App. 563. (6) The respondent was entitled to recover as his measure of damages the actual value of the goods in controversy. Railroad v. Chittim, 40 S.W. 23; City of St. Louis v. Niehaus, 236 Mo. 8.
The plaintiff, a wholesale liquor dealer of Joplin, Missouri, sues defendant, a common carrier, for the loss or conversion of several shipments of whiskey received by defendant at Joplin for transportation to, and delivery at, Caney, Kansas. 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, Kansas, and its seizure there while being held for delivery at its freight house 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 freight house and this liquor at Caney, Kansas, and thereupon took possession of the liquor in question, removed it from such freight house, 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 F. 361, where the court, in ruling that the land in the original town of Muskogee, Oklahoma, 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 below violated no law in having the whisky for sale at the place where it was seized; and the 20th 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, 56 L.Ed. 1201, 32...
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