Graves' Adm'r v. Poage

• Decision Date: 31 October 1852
• Citation: 17 Mo. 91
• Parties: GRAVES' ADMINISTRATOR, Appellant, v. POAGE, Respondent.
• Court: Missouri Supreme Court

17 Mo. 91

GRAVES' ADMINISTRATOR, Appellant,

v.POAGE, Respondent.

Supreme Court of Missouri.

October Term, 1852.

A. and B., both citizens of Missouri, were digging gold on shares and living in a tent together, in a wild, unsettled region of California. A. died, leaving a sum of gold and some wearing apparel. After his death, B. sold the wearing apparel, caused the gold to be weighed, and a memorandum of it to be made by A.'s acquaintances, took out of it enough to pay the expenses of his sickness and interment, and started to bring the remainder home to A.'s family in Missouri. On his way, his trunk was broken open, and the gold stolen. Held,

1. These acts, under the circumstances, do not render B. liable to A.'s administrator in Missouri as an executor de son tort, being mere acts of kindness and charity.

2. In undertaking to bring the gold home, B. only incurred the liability of a bailee without hire, and was only responsible for gross negligence.

Appeal from Monroe Circuit Court.

Howell, for appellant. The court erred in refusing the first and second instructions asked by plaintiff. It is insisted that this is the true rule, and that there is nothing in this case to prevent its application to the respondent. It was the duty of the respondent to deliver the property of the deceased to the proper tribunal or officer nearest where it was found in California, to be held and transmitted to the domiciliary representative according to law.

Glover & Campbell, for respondent. Poage not only did right, but it was his duty to bring the gold of the deceased to Missouri. If a person dies, leaving personal property in a country or state different from the one in which he resides, it does not follow that administration must be had upon such personal property in the state or country in which it is at the death of the owner. As to ships and cargoes, see Story's Con. of Laws, § 520. As to the act of taking possession of goods of deceased persons, see 2 Dev. & Batt. 2. The question of due diligence in the transportation of the gold was fairly before the jury, and the loss of it under the circumstances was a good defence. Wright's Rep. 411. Story on Bail. § 27, § 174, § 175. 11 Wend. 25. 2 Hawk's Rep. (N. C.) 6. 6 Shep. 174.

GAMBLE, Judge, delivered the opinion of the court.

Graves, the intestate, and Poage, the defendant, together with the brother of Poage, were at work in California, digging for gold in a common adventure, and sharing their gains. They lived together in a tent, in a wild, unsettled part of that country. They were all citizens of Monroe county, in this state, and had not changed their domicil. Graves became sick, and received all the attention which the condition of the Poages admitted, and when he died, he was interred by them. A physician had been procured to visit him. Upon his death, he left in the tent occupied by himself and his associates, gold to the amount or value of thirteen or fourteen hundred dollars, some wearing apparel and other small articles. The two Poages, upon the death of Graves, determined to return to Missouri, and the defendant sold the wearing apparel and other personalty of Graves, which was supposed not to be worth the trouble and expense of transportation, and taking the gold of Graves to a place called Georgetown, he caused it to be weighed and the value ascertained, and a memorandum thereof to be made by persons who were acquaintances of Graves and residents of the same county in this state. Upon a consultation with those acquaintances of Graves, it was thought best that the defendant should bring the gold home to the family of Graves in Missouri, and accordingly, after paying the expenses of his sickness and interment, the defendant started home with the gold put into a hand trunk, in which was carried the gold belonging to himself and his brother, and that belonging to some other persons who traveled in the same company, as well as gold he was bringing home to other persons here. The evidence shows the care taken of the trunk and its contents, and the manner in which the different parcels were distinguished from each other by being in different bags. At New Orleans, the state room on the steamboat on which the defendant and his companions had taken their passage, was entered, the trunk broken open, and the gold of Graves was stolen.

The present action is brought by his administrator to recover the value of the gold and other property left by Graves at his death, upon the ground that the defendant had “kept, or wasted, or disposed of the same, or had converted it to his own use.” The defendant's answer admits the fact that Graves died, leaving in his tent the gold and other property, and that the defendant had attempted to bring it home for the benefit of his family here, and states the fact of the robbery by which it was lost. A precise statement of the allegations in the pleadings, or of the evidence given, is not necessary to the understanding of the questions of law involved in the case. The court, at the instance of the plaintiff, gave the following instructions to the jury:

3. That in this case, the defendant is bound in law to prove to the satisfaction of the jury that, in the transportation and carrying of the money, gold, &c., of the plaintiff's intestate, from California to Missouri, he used due and proper diligence in preventing the loss of the same.

4. That the question of diligence is a relative question, and the amount to be observed by a carrier in the preservation of property entrusted to his care, depends upon the circumstances of danger which surround him. A carrier is always bound to use every exertion in his power to preserve the property entrusted to his care, and any omission on his part to use all ordinary, proper and due precaution to preserve the same, renders him liable to the extent of the loss that may occur.

5. If the jury believe from the evidence, that the money, gold dust, gold and other property which defendant took into his possession, belonging to John Graves, deceased, after his death in California, was lost by defendant from want of proper and due diligence on the part of defendant to preserve and safely transport the same to Missouri, then he is liable for the amount of the same, and they should find for the plaintiff the amount they believed defendant received.

8. If the defendant took possession of money, gold and gold dust of John Graves, deceased, which was in California, at or after the death of said Graves, and removed the same from California after said death, without the order of a court having jurisdiction in the matter, and lost the same in New Orleans on his return to Missouri, by ordinary neglect, he is responsible to the plaintiff, as administrator of said Graves, for the sum so lost.

The plaintiff asked the following instructions which...