Jaminet v. American Storage & Moving Co.

• Decision Date: 13 December 1904
• Citation: 84 S.W. 128,109 Mo. App. 257
• Court: Missouri Court of Appeals
• Parties: JAMINET v. AMERICAN STORAGE & MOVING CO.

84 S.W. 128

109 Mo. App. 257

JAMINET v. AMERICAN STORAGE & MOVING CO.

St. Louis Court of Appeals. Missouri.

December 13, 1904.

BAILEES FOR HIRE — PRIVATE CARRIER — SAFE DELIVERY — WARRANTY — MEASURE OF LIABILITY — REASONABLE CARE — ACTS OF THIRD PERSON.

1. Where, in an action against a furniture mover for injuries to goods moved, the instructions did not make defendant's liability depend on its possessing the character of a common carrier, but on a finding that it had agreed to move the goods safely, an alleged error in that the court assumed that defendant was a common carrier was harmless.

2. Where defendant corporation, engaged in furniture moving, contracted to move plaintiff's furniture, etc., for a certain price, and its agent stated that defendant had previously safely moved furniture and bric-a-brac for others, was responsible, and would move plaintiff's furniture with care and deliver it safely, defendant did not thereby assume the responsibility of a common carrier, but was only liable as a bailee for hire for negligence of its servants.

3. Where a corporation agreed to move plaintiff's furniture, and to be responsible therefor, it did not thereby warrant the safe delivery of the furniture at all events, and was therefore not chargeable for the loss of a painting destroyed by the wanton act of a third person.

Appeal from St. Louis Circuit Court; D. D. Fisher, Judge.

Action by Mary Jaminet against the American Storage & Moving Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

B. O. Davidson, for appellant. J. H. Zumbalen, for respondent.

Opinion.

GOODE, J.

Action against defendant for the destruction of a mirror and the partial destruction of a portrait of the plaintiff while the defendant was moving the plaintiff's household goods from a residence on Laclede avenue, in the city of St. Louis, to one on Cates avenue. The action originated before a justice of the peace. No pleading was filed by the defendant. The petition declares that in June, 1903, plaintiff delivered her personal property, including the articles mentioned, to the defendant, at No. 4452 Laclede avenue, and the defendant agreed, in consideration of certain charges, well and safely to move and carry said property to No. 5943 Cates avenue, and deliver the same to the plaintiff at the latter place in as good condition as when received by the defendant; but in disregard of its duty as a common carrier, and in violation of its said agreement, it so negligently moved and carried said property that the portrait was torn and the mirror broken. There was judgment in the circuit court in her favor, and an appeal to this court.

The articles damaged in moving were proven to have been delivered in good condition to the defendant at the house on Laclede avenue, and there was testimony that the manager of the defendant company agreed in advance to take care of all the property in moving it, and to be responsible for any damage. The testimony tends to show the mirror, which was of French plate glass, was broken in transit, and that a cheap one, worth two or three dollars, was substituted for it by the defendant. The portrait was injured in this way: When it was brought out of the house on Laclede avenue to be loaded on the wagon, the driver set it on the curbstone and leaning against the side of the wagon, until he could get a quilt to wrap around it as a protection from injury. While it was resting there, a boy eight or nine years old, who lived in the neighborhood, came along, holding a bottle in his hand, and struck plaintiff's portrait in the face with the bottle, tearing the canvass, and permanently injuring the picture, although it was afterwards skillfully repaired. Whether the boy was inspired by a spirit of pure mischief or by animosity against the plaintiff from previous disputes, is not known. The plaintiff testified regarding the contract with defendant's manager as follows: "Witness: I merely told him that I had some valuable paintings and valuable things, and he said he was responsible, and would move them with care and deliver them safely. Q. He said he would deliver them safely? A. Yes, sir; for me. Q. You agreed upon the price? A. Yes, sir; I agreed to his price at the time." Plaintiff's daughter gave this version of the contract: "Q. Do you remember when your mother employed the defendant to do this moving for her? A. Yes, sir. The moving was on June 5th, and it was possibly a few days before that — possibly the last week in May — that it was talked over. That I can't remember exactly. Q. Were you present when Langdale called? A. A part of the time I was present. I was very busy about household matters, and my mother talked with him, and I passed by the door, and I said, `You are in there?' and she said, `Come in, will you?' and I said, `Yes;' and she said, `This is Mr. Langdale that moved us before,' and I said, `Will he be responsible to take care of all these things?' And I commented particularly on our old paintings, some curios, and some valuable things we had; and Mr. Langdale spoke very nicely, and he cited people he had moved; and I said, `We have a house full of old things that we value highly — portraits, furniture with glass, and bric-a-brac. Will you be responsible for it?' And I mentioned a friend of ours, who, like ourselves, had these valuable paintings, and she had employed the art company to move them; and I said, `I think we had better do that.' Mr. Langdale said, `We are thoroughly responsible; we move those valuable things every day'; and then my mother said to me, `Why should we go to the extra expense of employing an art company?' and he said, `Most assuredly.' As near as I can remember, that was the conversation. Q. Was there anything said by him to the effect that he would see that your pictures were moved safely? A. Everything. He gave his word for it. Q. You just state what was said. A. Yes, sir. He gave his word to move everything safely, and they moved bric-a-brac, glass, and all perfectly, and an excellent packer, who had given the most satisfaction." For the plaintiff the court instructed the jury that if they found the defendant's agent agreed with the plaintiff well and safely to move and carry her household furniture and goods between the respective residences, and deliver them in as good condition as when received, and that a painting and a mirror, or either of them, were injured or destroyed while in the defendant's possession, the verdict should be for the plaintiff. The court refused instructions requested by the defendant of the following purport: That if plaintiff knew of any special danger to her portrait from her neighbors' children while it was set face outward on the sidewalk, and failed to notify the defendant's servants of such danger, and while it was on the sidewalk it was intentionally struck by a boy with whom the plaintiff was on unfriendly terms, the finding on that item should be for the defendant; that defendant was not responsible for damage to the portrait intentionally caused by the boy, unless the jury found the servants of the defendant were negligent in handling the portrait; that the defendant was charged with only reasonable care in handling the portrait — that is, such care as prudent men use in carrying on their business — and, if defendant's servants handled it with that degree of care, the defendant was not responsible. As to the mirror, the defense was made that the plaintiff accepted the mirror which was delivered to her in lieu of the broken one, as satisfactory.

The chief contention of the appellant's counsel is that the court erred in assuming the appellant was a common carrier, instead of leaving it to the jury to say. This point is irrelevant, for the instructions did not make the appellant's liability depend on its possessing the character and responsibility of a common carrier, but on a finding that it had agreed with the respondent, for a consideration, well and safely to move and carry respondent's household furniture and goods, and to deliver them to her again in as good condition as when received. As the case is presented here, it is immaterial whether the appellant was a common carrier or not. It is true, as respondent's counsel says, that a private person may, by contract, take on himself, in respect to a certain article which he agrees to transport, the degree of responsibility that rests on common carriers; that is, a private person may agree to be responsible for any loss except such as may be entailed by the act of God or the public enemy, as no doubt he may, and, if he likes, may assume an even greater responsibility from which the act of God will not excuse him. Robinson v. Dunsmore, 2 Bos. & P. 416; Fish v. Chapman, 2 Ga. 349, 46 Am. Dec. 393. It is plain the appellant company did not, by formal words, agree to assume the liability of a common carrier in transporting the respondent's furniture. Nothing was said between the parties to that effect, nor, indeed, was the subject of the legal duty and responsibility of a common carrier mentioned between them. Naturally, it would not be. It is argued that the agreement imposed on the appellant a liability identical with what the law imposes on a common carrier, but it would be an idle task to settle that proposition. The important inquiry is as to the extent of the appellant's undertaking, and the legal duty incumbent on it in consequence thereof. What did the appellant agree to do? There is a principle of law which may be stated in general terms as follows: When a party, by an absolute agreement, imposes the duty on himself of performing an act, he is not relieved of liability on his obligation by a subsequent event which renders performance impossible. Davis' Adm'r v. Smith, 15 Mo. 467; Harrison v. R. R., 74 Mo. 364, 41 Am. Rep. 318; Beatie v. Coal Co., 56 Mo. App. 230. The commonly given reason for this rule is that the party bound might have protected...