Smithers v. Steamboat War Eagle

• Decision Date: 31 January 1860
• Citation: 29 Mo. 312
• Parties: SMITHERS, Defendant in Error, v. STEAMBOAT WAR EAGLE, Plaintiff in Error.
• Court: Missouri Supreme Court

29 Mo. 312

SMITHERS, Defendant in Error,

v.STEAMBOAT WAR EAGLE, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1860.

1. In an action against a steamboat in which it is sought to hold the steamboat responsible as a common carrier, it is not necessary that the petition should expressly state that the steamboat is a common carrier; it is sufficient if it clearly appear from the whole petition that the contract of affreightment, the breach of which is complained of, was entered into with her in that capacity.

Error to Lafayette Circuit Court.

The facts sufficiently appear in the opinion of the court.

Ryland & Son, for plaintiff in error.

I. The court should have granted the instruction asked. The action being founded on tort and not on contract the defendant was bound to use only ordinary care and prudence. (Ready v. Steamboat Highland Mary, 17 Mo. 461.) The action against a boat as such must be founded on contract. (R. C. 1855, p. 304.) The rigid rules applied against common carriers do not apply to actions against boats.

EWING, Judge, delivered the opinion of the court.

The question in this case is whether the allegations in the petition show the liability of the defendant as a common carrier. If so, the court below committed no error in refusing the instructions asked by the plaintiff in error and in overruling his motion for a new trial.

The petition alleges that as the owner of a certain horse he (the plaintiff) shipped him on board of said steamboat War Eagle, with divers other horses, goods and chattels, at the port of St. Louis, in the State of Missouri, to be safely carried, conveyed and delivered to plaintiff at the wharf at the city of Lexington, on the Missouri river, for certain freight and reward in that behalf paid defendant by said plaintiff; and the defendant then and there took and received the same accordingly to be delivered safely at the wharf at the city of Lexington aforesaid; and the plaintiff states that on the said 10th day of September, 1859, and for a long time before and afterwards, the defendant was and still is a steamboat navigating the waters of this state, to-wit, the waters of the Missouri river. The petition then avers that the said defendant, while so used and being engaged in navigating the waters of the Missouri river, on, &c., and not regarding her duty in that behalf, and while she was discharging freight at the city of Lexington aforesaid, the place at which said horse was to be delivered, wrongfully and unlawfully and through the carelessness and negligence, misdirection and unskillfulness of the officers and crew in taking said horse from the boat, said horse was killed, by reason of which premises defendant did not safely carry, convey and deliver said horse according to the terms of her contract as aforesaid. The answer denies carelessness or negligence, and alleges that the horse lost his life accidentally.

It was proved on the trial that on leading the horse from the boat he fell off the staging and was killed. It is unnecessary, however, to notice the...