Degge v. American Express Co. , 64 Mo. App. 102 ( 1895 )

Biggs, J.

This action originated before a justice of the peace and is for damages to a picture, alleged to have occurred while the picture was in the possession of the defendant as a common carrier. On a trial de novo in the circuit court there was a verdict for the defendant, which the court on motion of the plaintiff set aside as being against the weight of the evidence. Erom the order sustaining the motion the defendant has appealed.

The only reason assigned for the granting of the new trial (and it was the only possible one) was that the verdict was against the weight of the evidence. The granting of a new trial for this reason rests largely in the discretion of the trial court, and, where there is a substantial conflict in the evidence, the appellate court will not review it. First National Bank v. Wood, 124 Mo. 72.

The facts attending the shipment, as well as the condition of the picture when inspected by the consignee, are not matters of dispute. The only controversy is as to the' inferences which may reasonably or legitimately be drawn from the established facts. The picture was delivered by the plaintiff to the defendant at St. Louis to be shipped to Chicago. It was properly and safely packed in a box or frame, and was consigned to the Board of Lady Managers of the Woman’s Department of the World’s Columbian Exposition. It arrived in Chicago on the twenty-fourth day of April, and was delivered on the same day to the consignee at the Lady’s Building and receipted for by the representative of the lady manager. It was left by the defendant’s delivery agent on the inside of the building, about four or six feet from the front entrance, where it remained for two or three days without being opened. When the janitor of the building attempted to move the box into an adjoining room for the purpose- of opening it, he heard glass rattle, and when he opened it he found the glass which was over the picture broken into fragments, and the picture itself in a bad condition. He removed the broken pieces of glass, and, under the orders of the lady manager, reshipped the picture in the same frame to plaintiff. The plaintiff testified that on receipt of the picture she inspected it and found that its surface was marred and sóratched, as if broken pieces of glass had shifted back and forth across it, and that the box itself indicated that it had fallen or been struck with something.

If the picture had been inspected by the consignee when received, and had been found in a damaged condition, the presumption that the damage occurred while the package was in the possession of the defendant would have been unquestioned, and the plaintiff’s right of recovery would likewise have been unquestioned. But the inspection was not made until three days after the receipt of the package, which cast upon the plaintiff the burden of showing, that the damage occurred during the transit and not after the delivery. Nave v. Express Company, 19 Mo. App. 563. Under the established facts, was there a conflict in the evidence as to when the injury occurred? That the jury was justified by the evidence in drawing the inference, that the injury occurred after the arrival of the picture, is not seriously questioned. If a contrary inference is 'fairly and legitimately admissible, then we have a conflict in the evidence. The plaintiff’s evidence only tended to show that the picture remained at the place where the defendant’s delivery man put it until the janitor of the building attempted to remove it into an adjoining room, when he heard the broken glass rattle. This of itself proved nothing, but when considered in connection with the plaintiff’s testimony as to the character of the injuries to the picture, and that the glass over the picture was broken into fragments, it has some significance. The janitor testified that he removed the pieces of glass and reshipped the picture to St. Louis, and the plaintiff testified that, when she received it, its surface was greatly marred and scratched as if broken pieces of glass had .shifted back and forth over it. The testimony of the janitor is, or at least it is a fair inference from his testimony, that the box was not moved 'after its delivery until the time it was opened. If this be true, it is not reasonable that the picture would have been thus defaced if the glass had been broken after the arrival at the building, but on the contrary the evidence suggests the probability that the accident occurred during the shipment, and for this reason we can not disturb the action of the court in sustaining the motion for a new trial.

Judge Bond concurring, the judgment of the circuit court will be affirmed.

Judge Rombaueb, dissents.