Smith v. Whitman ex rel. Maguire

• Citation: 13 Mo. 352
• Parties: GEORGE SMITH AND JAMES CARTER v. JOSEPH P. WHITMAN, USE OF JOHN MAGUIRE.
• Decision Date: 31 March 1850
• Court: United States State Supreme Court of Missouri

13 Mo. 352

GEORGE SMITH AND JAMES CARTER

v.JOSEPH P. WHITMAN, USE OF JOHN MAGUIRE.

Supreme Court of Missouri.

March Term, 1850.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

This was an action of assumpsit, brought for the recovery of freight money. At the trial below, the plaintiff showed that in November, 1845, the appellants, Smith and Carter, shipped on the steamboat Reveille, of which plaintiff was the master, at the port of Galena, 2,003 pigs of lead, weighing 138,343 pounds. The lead was consigned to Webster & Co., of St. Louis, to be delivered to them “unavoidable dangers of the river and fire only excepted”--at St. Louis, upon the payment of freight at the rate of seventy-five cents per 100 pounds. The bill of landing was in the usual form, and bore date November 15th, 1845. The plaintiff further proved that Webster & Co. received the lead early in February, 1846, from the steamboat Fortune; to which boat it had been re-shipped, n consequence of the grounding and loss of the Reveille. The partnership of Smith and Carter, and the fact that plaintiff was master of the Reveille, at the time of the shipment, were admitted. Here the plaintiff rested.

The defendants then introduced evidence tending to show that the Reveille had no fit pilot for the trip, and that after she was loaded, she waited a day or two at Galena for a pilot; that at that season such a delay might diminish her chance of arriving at St. Louis, before the close of navigation; that an extraordinarily high rate of freight was agreed upon, such as would not have been paid, unless the shipper expected that his lead would reach St. Louis before the close of navigation; that the Reveille finally started insufficiently officered and equipped, in that she had only one pilot, while running in a trade in which two are necessary, and this one not used to this navigation, and was not provided with good and sufficient anchors, spars, tackles and rigging; that the Reveille grounded on the lower rapids of the Mississippi river, where such anchors, spars and rigging are absolutely necessary; and that she might have got off if she had been so provided, and perhaps prevented from grounding; that lead shipped by the steamboat St. Croix, which left Galena after the departure of the Reveille, arrived within thirty miles of St. Louis that fall, before the river closed; that, had the lead arrived before the close of navigation, it could have been sold for from $3 80 @ $4 00: that when it did arrive it was worth only $2 50. In rebuttal, plaintiff gave evidence tending to show that the Reveille did not necessarily or improperly delay starting from Galena; that she was sufficiently provided with pilots and crew and sufficiently officered, and equipped, and provided with all necessary anchors, spars, tackles and rigging, and that it was not from the want of any of these things, or from carelessness or negligence or incompetency on the part of those conducting her, that she got aground, or that the delivery of the lead in St. Louis was delayed; that there was no unnecessary or avoidable delay on the voyage, or in the delivery of the lead. The plaintiff proved that the river closed that fall very suddenly, by freezing, about the 20th of November, when this lead was at or near the foot of the lower rapids, that the lead was finally delivered to the consignees among the first lots that were delivered in St. Louis, after the re-opening of navigation between the lower rapids and St. Louis and long before the re-opening of navigation to Galena that season; the plaintiff also proved that the price of lead is higher in St. Louis in winter and spring, before the opening of navigation to Galena, than after. The plaintiff also introduced evidence tending to show that the price of lead in St. Louis in the month of February, 1846, after the lead in question arrived there, was as high or higher than it had been in the last half of the previous November, when the lead would have arrived had there been no extraordinary detention. Among the actual sales it was proven that one was made in February, 1846, at $4 12 1/2, of a lot of lead that had been stopped at the foot of the lower rapids by the closing of the river in the fall. The sale was made before the lead actually arrived, but in anticipation of its arrival before the opening of navigation to Galena, which it did and among the first lots. Quite a number of actual sales were shown, and but one offer. This was all the evidence.

At the request of the plaintiff, the court gave the following instructions, to-wit: 2nd. If the jury find from the evidence, that the price of lead n St. Louis, in the month of February, 1846, after the lead in question arrived here was as high as it had been in the last half of the November previous, the defendants will not be entitled to have anything allowed them in this case, as damages for not delivering said lead in November. 3rd. The best evidence of the price is actual sales, and therefore, in arriving at the price, the jury will be governed by actual sales and not by mere offers made by one person to another.

Also on its own motion, the court gave the following instructions, to-wit: 4th, If the jury should believe, from the evidence, that the delay in delivering the freight was occasioned by the negligence of the plaintiff, and that thereby the defendant was damaged, the jury will deduct the amount of such damages from the plaintiffs' bill. 5th. The measure of such damage, in case the jury shall find that the plaintiff is chargeable with it, will be the difference in the value of the lead at the time it would probably have come to hand by careful and skillful management, and the value of it, when it actually reached St. Louis. 6th. Whether the plaintiff was guilty of such negligence as to charge him with those damages, is for the jury to determine, by considering the manner in which the vessel was managed, after the freight was put on board. If the vessel was run aground in consequence of the incompetency of the pilot employed; or if it was not got off because it was not suitably equipped, he is liable for the damages thereby occasioned to the defendant. But if the vessel got on the rocks, whilst having a skillful pilot, and could not be got off after suitable appliances and efforts were used, plaintiff is not chargeable, although the jury shall find that the vessel was not provided at other times with competent pilots, or sufficient equipments. 1. If the jury shall find, from the evidence, that the material delay was caused by the fact, that the boat got aground at the rapids, it is unimportant whether there was unnecessary delay in starting from Galena, or in reaching the rapids, unless they shall believe from the evidence, that these previous delays contributed to produce that which happened at the rapids.

To the instructions marked “2, 3, 6 and 1,” the defendants duly excepted.

At the instance of the defendants, the court gave the following instructions, to-wit: 7th. If they believe from the evidence, that the boat, after she was loaded, was delayed at Galena for a pilot, or that she started down without enough or proper pilots, or that she was materially deficient in the usual and needful equipments of boats in that trade, for getting through the difficulties of that navigation, and that these, or any of these things contributed towards preventing the delivery of the lead that fall, they should allow the defendants such damages as, from the evidence, they believe the defendants to have suffered by reason thereof.

But the court refused to give the following, to-wit: 8th. A sale of lead to arrive does not give the market price at the time of sale. To which decision the defendants duly excepted. The verdict was for the plaintiff. The defendants filed a motion for a new trial for these reasons, to-wit: 1st. Because the court gave the jury erroneous instructions. 2nd. Because the court refused to give the instructions asked. 3rd. Because the verdict is against law, under the evidence. The court refused said motion, to which decision the defendants duly excepted and appealed from trial and judgment of said court, to this court.

TODD & KRUM, for Appellants. 1st. The court below erred in giving the instructions marked six and one, because they assume that an unnecessary or negligent delay or the unseaworthiness of the vessel will not make the carrier liable for a loss, unless the loser prove, that such loss was caused by such delay or unseaworthiness; whereas the appellants insist the law under the most favorable view for the carriers to be, that upon showing such delay or unseaworthiness and a loss, the carrier can exempt himself from liability therefor only by showing that such loss would and must have happened in the absence of such delay and unseaworthiness. Even this defense is a relaxation of the law, and not yet universally allowed. 11 Mo. R. 299; 6 Bingham, 717; 12 Mo. R. 272; 10 Mo. R. 6; 4 Binney, 127; Story on Bailments, 413. The loss or injury is sufficient proof of negligence or misconduct or of the intervention of human agency, and that (the loss or injury) proved, the onus probandi is at once upon the carrier to exempt himself from liability by showing not only that it was produced by a cause which either under the general law or his special contract with the loser, would per se exempt him, but also that it must and would have happened in any and all events. See authorities above cited; also Story on Bail. §§ 528, 529, 574; Angell's Law of Carriers, §§ 472, 202; 7 Yerg 340, 3 Story's C. C. R. 349.2nd. The court erred in giving instruction marked 2, for if the supposition of the instruction was true, still the appellants would be damnified by losing the use of their money from November to February, in this case quite a large sum. 8 Johns. R. 213, decides that this damage is proper to allow in case the loser makes out a case for damages or indemnity. By this instruction the court...