Steamboat Lehigh v. Knox

• Decision Date: 31 October 1849
• Parties: STEAMBOAT LEHIGH v. RICHARD F. KNOX AND MILTONKNOX.
• Court: Missouri Supreme Court

12 Mo. 508

STEAMBOAT LEHIGH

v.RICHARD F. KNOX AND MILTONKNOX.

Supreme Court of Missouri.

October Term, 1849.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

HESLEP & GARLAND, for Appellant.

1. The verdict is against the evidence rendered in said case; and also, that the evidence does not support the verdict; that all the allegations required to be set out in a complaint against a boat, are material allegations, and require strict proof. Rev. Stat. act Boats and Vessels, § 4, p. 182. 2. The appellant was entitled to the instructions asked as set out in the bill of exceptions--a contrary doctrine would tend to the most enormous fraud--the remedy being special and extraordinary. The proof as to the matter sworn to in a steamboat must be stricti juris. The instruction asked was a legitimate instruction under the statute. Rev. Stat. Boats and Vessels, p. 182, § 4. 3. The appellant was entitled to the benefit of the testimony of E. R. Dodge--that his examination on his voir dire discloses no fact to disqualify him as a witness; that his statements were mere legal conclusions, and that nothing is shown in his examination that definitely determines his intent. 4. The appellant insists upon his right to show a tortious possession at the time set out in appellee's complaint, for surely a boat is not liable for accounts made by persons without authority to contract for her.

KNOX & WHITE, for Appellees. This is an action instituted in the St. Louis Court of Common Pleas to recover for supplies furnished said boat by the plaintiffs. There is no question raised by the record--that the supplies were furnished--the only two errors assigned are, 1st. The court excluded evidence offered by the defendant. 2nd. The court refused the instruction asked by defendant.

To the first error assigned the plaintiffs reply, that the defendant has not preserved the evidence excluded in his bill of exceptions, and this court will not therefore take upon itself to decide that the Court of Common Pleas erred in excluding the evidence. 7 Mo. R. 4; 5 Mo. R. 110; 4 Mo. R. 626, 564; 3 Mo. R. 487, Bartlett v. Draper.

To the second error assigned the plaintiffs submit, that the Court of Common Pleas did not err in refusing the instruction. 1st. Because it was not necessary for the plaintiffs to prove that A. B. Roff, as master of said boat, made the contract with said plaintiffs. 2nd. If it were necessary for the plaintiffs to prove that the contract was made with the master of said boat, the plaintiffs submit that if the supplies were delivered by the plaintiffs to the boat, this is of itself presumptive evidence that the master of the boat contracted for the same. 3rd. If the instruction asked intended only to require the court to instruct the jury that it was necessary for them to find that the contract was made with A. B. Roff, it is too comprehensive, and if given would have misled the jury.

NAPTON, J.

The cause of action against the steamboat Lehigh is stated to be “for stores and for supplies furnished for the use of said boat, and accrued on account of Roff, master.” The bill of items consists of provisions and groceries, and some blank books. The verdict was for the plaintiffs, and judgment was entered against the principal and securities, on the bond under which the boat had been released. The defendant offered in evidence, certain records from the Circuit Court of Peoria county, Illinois, which were objected to as incompetent and irrelevant. The object of the testimony was stated, in the bill of exceptions, to show the legal control and custody of the boat as being in certain receivers appointed by the Peoria court, thereby showing through whom the account...