Alexander v. McNally , 112 Mo. App. 563 ( 1905 )

ELLISON, J.

The defendant is a common carrier operating transfer vehicles in the city of Chillicothe. Plaintiff instituted the present action charging that she delivered to Mm her valise containing valuable articles of baggage with instructions to take the same to the station of the Wabash railway in said city and there deliver it to the station agent. That while the defendant undertook to do so, yet he failed, and instead of delivering to the agent, he placed the same on the station platform, outside of the building, and left it without any one in charge thereof. That in consequence of such action the valise and contents were lost or .stolen and have never been recovered. The trial court gave a peremptory instruction directing a verdict for the plaintiff and defendant appealed.

It appears that plaintiff, a young lady residing in Gallatin, Daviess county, had been visiting the family of M'r. Rucker at Chula in another county. She left there for her home and in company with Mr. and Mrs. Rucker took the Milwaukee & St. Paul train at Chula for Chillicothe where she would transfer across the city to the Wabash railway, which passed through her home place. Mr. Rucker telephoned defendant to meet him at Chillicothe with a carriage at the station of the Milwaukee road, which he did. There, Mr. Rucker delivered plaintiff’s check or valise to defendant and then with his wife and plaintiff got into defendant’s carriage which took Mr. Rucker to the hotel and then carried the ladies to a friend’s house in another part of the city. Plaintiff was expecting to meet her father at Chillicothe and did not take the Wabash train for her home until the next evening.

The articles lost and their value, as alleged by plaintiff, were conceded to be correct and the only question in the case is whether the evidence made an issue of fact so as to entitle defendant to the opinion of the jury. The evidence in behalf of each party showed a delivery of the valise to defendant as a carrier, and there is no dispute as to its loss. In such circumstances it devolved on defendant to account for it. [Hill v. Sturgeon, 28 Mo. 323, 327; Read v. Railway Co., 60 Mo. 199, 206.] To properly account for it lie should have shown a delivery to the agent at the Wabash station. The evidence to show such delivery as given by defendant himself was that he took it to the station and deposited it on the platform outside of the building among a large number of people, and there left it without putting it in charge of anyone and not knowing what became of it. That did not show a delivery to the agent or any other person; on the contrary, it shows an abandonment.

If we should concede that a custom of the Wabash Railway Company to receive hand baggage by having it merely deposited on the platform outside the station building, would excuse and justify defendant in so leaving the valise in controversy, defendant could not be benefited by such concession for he failed to show such custom. On that head, defendant stated that the plat-' form was the place where he always put hand baggage. But that by no means shows a custom of the company to receive it there. For aught that can be known from the evidence, the company may have frequently cautioned him against such careless conduct. Defendant was asked if the station agent knew that he always left hand baggage on the platform. On plaintiff’s objection he was not allowed to answer that question. For the purpose of a proper consideration of the peremptory instruction we will assume that he would have answered yes. Yet that, without more, would not have shown consent on the part of the agent to receive it there for the company. It may have been left in that way against the protest of the agent. Again, the agent may have known that defendant placed hand baggage on the platform for those intending to become passengers and with intent to himself deliver to such persons and not to the company. The evidence, therefore, of defendant himsélf not only fails to excuse, but it condemns him.

It was a part of defendant’s contention that he did not know the valise belonged to plaintiff; that the check for it and the direction to take it to the Wabash station came from Mr. Rucker. The mere mistake of defendant as to who was the true owner would not, ordinarily, affect his duty in the premises. But he seeks to make it important in this particular case from the consideration that (as stated in his brief) he had often taken Rucker to the Wabash station and placed his baggage on the platform, and that supposing the baggage in this instance was Rucker’s, he did with it as he had done before. But the evidence falls short of sustaining such position. It does not show , he had ever handled baggage for Rucker. He merely stated that he had frequently taken Rucker himself to the station but said nothing as to baggage.

Considering the case from the evidence in defendant’s behalf, in connection with the admitted facts, it appears that he received the baggage as a carrier and that he took it to the railway station and deposited it on the platform without delivery either to the agent or to the party who entrusted it to him. He has wholly failed to justify or excuse such action and consequently the trial court could do nothing less than direct a verdict for the plaintiff.

Defendant insists that even when testimony is all one way in a plaintiff’s behalf, yet that when there is a denial by the answer, the evidence is for the jury and is addressed to the consideration of a jury and should be determined by that body, since they have a right to say whether they believed it. Such question was considered by us in Bank v. Hainline, 67 M'o. App. 483, and other cases since. But that question does not present itself here; for here, the evidence in defendant’s behalf in connection with facts admitted, as before stated, make out plaintiff’s case.

We find nothing in the point made as to striking but parts of the answer. Since the evidence developed the whole case, and, as already stated, the evidence of the defendant himself made it necessary to direct a verdict.

The judgment is affirmed.

All concur.