Nave v. Pacific Express Co.

• Decision Date: 24 November 1885
• Citation: 19 Mo.App. 563
• Parties: M. B. NAVE, Respondent, v. THE PACIFIC EXPRESS COMPANY, Appellant.
• Court: Missouri Court of Appeals

19 Mo.App. 563

M. B. NAVE, Respondent,

v.THE PACIFIC EXPRESS COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Nov. 24, 1885.

APPEAL from the St. Louis Circuit Court, AMOS M. THAYER, Judge.

Reversed and remanded.

DAVIS & DAVIS, for the appellant.

ALEX. YOUNG, for the respondent.

ROMBAUER, J., delivered the opinion of the court.

This is an action to recover damages alleged to be caused by the defendant to the plaintiff, by the negligent performance of a contract of transportation. The defendant is a common carrier, and received from the plaintiff in the city of St. Louis a valuable clock, consigned to the plaintiff's husband, care of Pacific House, St. Joseph, Mo., for transportation as per consignment. There was evidence given on behalf of the plaintiff, tending to show that the clock was carefully and securely packed by the plaintiff at her residence, and taken thence to a store close by and deposited on the sidewalk in the plaintiff's presence; that the defendant had the clock taken from this latter place, by a local expressman in its employ, and shipped to St. Joseph, where it was delivered two days thereafter to the Pacific Hotel; that it was placed in a cloak room at the hotel, and was afterwards removed to the plaintiff's room, where the box was opened, and the clock was found broken and injured to such an extent as to be practically worthless. Between the arrival of the box at the Pacific Hotel, and its subsequent opening six weeks elapsed, and there is no evidence in the record as to where the box was during that time, or what care was taken of it, except the statement of the plaintiff that she saw it on one occasion stored in a little cloak room. There was also evidence tending to show that the plaintiff's damages were as found by the jury.

Upon the close of the plaintiff's case, the defendant moved for a non-suit, which the court refused, the defendant excepting.

The defendant thereupon gave evidence tending to show that the clock was not carefully packed. That the box was taken with care from the sidewalk in St. Louis, by the defendant's agent and delivered at the depot in St. Louis, in the condition received; that it was received in St. Joseph by the defendant's agent, in apparent good condition, taken in its delivery wagon to its place of destination, and there delivered to the clerk of the Pacific Hotel, who receipted for it as in good order, and that this was the last that the defendant heard of it until about four or five months afterwards, when the plaintiff made complaint about the injury. There was nothing in the defendant's testimony to help the plaintiff's case. The court instructed the jury that the plaintiff could not recover if the injury was owing to improper packing, and that it was incumbent on her affirmatively to show, that the clock was not broken when delivered to the defendant, and was broken...