The Chicago v. Shea

• Decision Date: 31 January 1873
• Citation: 1873 WL 8086,66 Ill. 471
• Parties: THE CHICAGO AND ALTON RAILROAD COMPANYv.DELIA SHEA.
• Court: Illinois Supreme Court

66 Ill. 471

1873 WL 8086 (Ill.)

THE CHICAGO AND ALTON RAILROAD COMPANY

v.DELIA SHEA.

Supreme Court of Illinois.

January Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Sangamon county; the Hon. JOHN A. MCCLERNAND, Judge, presiding.

Messrs. HAY, GREENE & LITTLER, for the appellants.

Messrs. MATHENY & MCGUIRE, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was an action of assumpsit, in the Sangamon circuit court, brought by Delia Shea against the Chicago and Alton Railroad Company, to recover damages for a breach of their undertaking to carry, from Springfield, in this State, and deliver at Marionville, Missouri, certain goods and chattels to them delivered by the plaintiff for such purpose, and which they failed to do. There was a trial by jury, resulting in a verdict for the plaintiff. A motion for a new trial was overruled and judgment rendered on the verdict, to reverse which the railroad company appeal.

The plaintiff herself was the only witness testifying to the goods and their value. Her testimony is clear as to the fact of delivery to appellants' agent at Springfield, and of the value of the goods.

Appellants make the point, first, that, according to the preponderance of the evidence, the misdirection of the goods was wholly chargeable to the plaintiff.

The plaintiff testified she delivered the goods to the agent with a letter of direction, and told him to send the goods to Pat. Shea, at Marionville, Missouri. The next day, on inquiry by the plaintiff, the agent said they were correctly marked and shipped; then went with her husband to Marionville, Missouri, and the agent there informed her the goods had gone to Marionville, Kansas.

On cross-examination, she stated she was delayed at Chatham, sick, one week; then went to Springfield, Missouri, the nearest station on the railroad to Marionville, and where the goods would stop on their way to Marionville; met her husband at Springfield; went there to get the goods; went from there to Dallas county; there were only two packages shipped, a chest, and a bundle made up of a feather bed and articles inside of it; they had no mark on them when taken to the depot at Springfield, Illinois, except a card on which was her husband's name, and Marionville, Missouri; gave the man at the depot a letter and told him to mark the goods by that letter. The heading of this letter was as follows: “20 section, S. P. R. R., Marionville, Missouri, April 7, 1870.”

The witness then described all the articles in the chest and bundle.

W. J. Flynn testified, for appellants, that, at the time spoken of, he was check clerk of this company at Springfield, Illinois; don't know that he ever saw the woman who had testified; knows that he marked the goods; never knew the contents of the packages; a woman brought him a letter and the goods; she did not want the goods sent to the place named in the letter; marked them strictly as she directed; don't remember what she said; was not his duty to mark goods; not allowed to receive goods unless marked; marked them for the accommodation of the woman, not for the railroad company. The covering of the chest being produced, and witness asked if he recognized it, the address being “P. Shea, Marionville, Kansas,” he said he wrote the address except the word “Missouri” crossed out; that was not there when he marked the goods; don't remember the woman nor the conversation with her; did not think the letter-head was the same shown him by the witness. The railroad receipt was then produced by the plaintiff, and witness said he made it out and marked the goods as they are in the receipt; knows he gave the receipt only from the fact that it is in his handwriting.

This receipt reads, “Received of Mrs. I. Shea, in apparent good order, and to be transported,” etc. Dated at Springfield, Ill., 29th April, 1870. In the margin appear these words: “P. Shea, Marionville, Lawrence county, Kansas.”

Here is a conflict of evidence which the jury alone could settle, and we have no hesitancy in coming to the same conclusion the jury did. The witness Flynn remembers nothing of the transaction only from seeing his handwriting in the receipt; remembers none of the directions given him by the plaintiff; recollects nothing of the letter-head shown him, but says he does not think it is the same as the one shown him. On all these points the testimony of the plaintiff is clear and positive, and was entitled to more weight with the jury than the testimony of Flynn. As to the address on the chest, it is very certain it once had the proper address, “Missouri,” but by some unexplained means, that word was erased, and “Kansas” substituted.

As to the bill of lading, or receipt, it required but little persuasion to induce a jury to believe that the agent, through inattention, made the mistake. How often are such agents careless and inattentive, seeming to take no interest in property committed to their charge, and, if not carefully supervised, as apt to give a wrong direction to a package as the right one. All the facts about the receipt of the goods by the agent were fully before the jury, and the directions given the agent were positively sworn to. He did not obey them, and his superiors must be accountable for the natural consequences flowing therefrom.

Under this head, appellants say, the testimony of the plaintiff was extraordinary; that, being the wife of a poor man, a laborer on a railroad, she should possess silk dresses, costly furs and solid silverware, is very strange, and what is more singular is the placing such goods in the package, and their existence not sought to be established by any evidence except her own testimony.

This is a fair argument for the jury, and was doubtless used before them, and they may have thought, and did think, it was not impossible or improbable that the wife of a railroad laborer might be the owner of such property. It is certain she was not required to tell where or how she got all of it. Some of it--the blankets, the silk poplin dress and the brocha shawl--she said were the gift of her husband; the set of mink furs, the victorine and the muff, were a present from her brother.

Appellants urge that her testimony is not only singular and extremely suspicious in itself, but is rendered more so by the testimony of the Beebes, husband and wife. That testimony, the jury might well say, as we would say, related to a different person, one Phœbe Shea, a woman twenty-eight or thirty years old two years before they testified, and weighing one hundred fifteen or twenty pounds. To this Phœbe Shea they knew of a box and bundle being shipped, marked “P. Shea, Columbus, Kansas.” This box was opened by the Beebes, and an inventory taken of old duds, worth in all about sixty-seven dollars. This could not, by any possibility, be the chest and bundle shipped by appellee, as on the cover of that chest was this address: “P. Shea, Marionville, (Missouri crossed out,) Kansas.” On this chest the initial “P.” stood for “Patrick,” plaintiff's husband; on the other box, marked “Columbus, Kansas,” that “P.” stood for ““Phœbe,'DD' who, doubtless, owned it and its contents.

An intelligent jury, as this was who tried this cause, or presumed to have been, and as all juries are, or presumed to be, must have fully considered that railroad companies, perhaps in a greater degree than others, are subject to gross impositions in cases of this character, and in considering this fact, they could readily believe, under the strong facts of this case, that the box with the goods marked to “P. Shea, Columbus, Kansas,” was not the box delivered by the plaintiff to be marked “P. Shea, Marionville, Missouri,” and which appears to have been so marked, but “Missouri” erased and the word “““Kansas” added.

The next point made by appellants is, that, admitting the plaintiff's statements to be true, they show she committed a fraud on the company, and ought not to recover.

Whilst appellants are willing to admit the law is well settled that it is not the duty of a carrier to inquire as to the contents of packages delivered for shipment when such contents are not known, yet it is not less a fraud in the shipper to do any act by which such inquiry is avoided or precluded.

When the...