Hammett & Katter v. Wabash Railroad

BROADDUS, P. J. The facts of the case are as follows: The plaintiffs on June 1, 1903, at Kirks¡ [3] ville, Missouri, delivered to defendant two boxes of goods for shipment to Salem Kassam, consignee, at Lexington, Missouri. In about four weeks thereafter the consignee went to the station at Lexington and made demands for them, but they were not' delivered to him for the reason that they had not then arrived at said station. The consignee then directed the defendant’s agent, when the goods arrived to reship them to Holden, Missouri. The consignee afterwards received one of said boxes but the other was never delivered. The plaintiffs contend that the lost box never reached Lexington, its destination. The goods were billed at Kirksville to Lexington Junction and it was shown that they would not go farther than Lexington Junction without rebilling. The defendant contends that the goods arrived at Lexington July 3rd, and were reshipped to Holden July 13th. The defendant’s evidence that the goods arrived at Lexington and were reshipped to Holden consists in the statements made by Mr. Loomis the agent of the Missouri Pacific Railroad at that place. His testimony mostly consists of his recollection of what was shown by a way bill and other written entries made in the office of his company which had been destroyed by fire, and from papers he received from his company relating to plaintiff’s claim. In some instances he assumed certain facts. He had but little knowledge of the matter, and his statements were not altogether consistent. The court found for the plaintiff for the value of the goods alleged to have been lost, and defendant appealed. The defendant tried the case upon the theory that if the goods arrived at their original destination at. Lexington and were rebilled at the request of plaintiffs to Holden, Missouri, they were not liable for their nondelivery at said place. The court sitting as a jury adopted the theory of defendant in its declarations • of [4] the law. There was then no error of law so far as defendant was concerned and the question for the court was one of fact. ■ The plaintiffs made out a prima facie case. They showed that the goods were shipped on defendants’ road to he delivered at Lexington, and that afterwards it was directed to rehill and reship them to Holden. The goods not having been delivered at either place it devolved upon the defendant to justify the non-delivery. They attempted to do so as shown by the foregoing statement. The question was one for the court sitting as a jury, Avhose duty it was to weigh the testimony and to pass upon the credibility of the witnesses, but in doing so had no right to arbitrarily reject competent and credible evidence. We are justified in presuming that the court in weighing the testimony was not satisfied that the evidence of the witness Loomis, which was mainly a detail of what was contained in certain memorandums, was accurate and was of such a reliable character as ought to prevail against plaintiff’s prima facie case. Besides the court may not have given full credit to the said witness as he was somewhat contradictory in his statements. It is held in Bank v. Hainline, 67 Mo. App. 488; “In a case where the evidence so far as appears by the record to be uncontradicted and the trial court refuses the peremptory instructions, the appellate court will assume that the trial court saw something in the manner of the Avitnesses to impair their testimony and will not interfere with the verdict.” [Vincent v. Means, 184 Mo. 327; Huston v. Tyler, 140 Mo. 252.] The court committed no error in refusing defendant’s declaration, that under the evidence the plaintiff was not entitled to recover. For the reason given the cause is affirmed. All concur.