Chouteau v. Steamboat St. Anthony

20 Mo. 519

Opinion

Scott, Judge,

delivered the opinion of the court."

This is the third or fourth time this cause has been in this court, and it would he some consolation to know when there will he an end of it. We have examined the facts upon the record, and do not see that the case is now materially variant from that presented when it was here before. The evidence of the declaration of the clerk, that he would have five dollars for carrying the package, can have little or no weight in determining this controversy,-

1,. The question’involved is an important one, as it should be well understood, if boat owners are liable for every sealed package of bank .bills a clerk may receive to be carried on the boat. When this case was here before, the opinion was expressed that the evidence was insufficient to establish the custom of boats carrying bank bills for hire. In the case before us, there is no such evidence of such usage as would warrant an instruction upon it.' No witness testifies that those for whom bank bills were carried without reward, were under any obligation in return to bestow on it their patronage. So, theiact of carrying is gratuitous, as it was said to be done in expectation of return freights or of future favors, for which the party favored was under no obligations.

2. The first instruction was evidently erroneous. It seems it was conceived on the principle that, if a bailee gratuitously undertake to do an act, he will be liable for negligence in doing it, although he was not bound to do it. This principle, however correct, when applied to individuals, can have no application to steamboats. A steamboat is not a person who can undertake a gratuitous bailment.

The second, third and fourth instructions were erroneous. There was no case for the fifth, and the sixth, with the omission in its beginning of what relates to custom, was the only one applicable to the merits of the case.

3. "When this cause was formerly here, the law respecting the question involved in it was carefully looked into, and we see no reason for departing from the opinion then expressed. The opinion, it seems to us, is full, and covers the ground of this case. The other judges concurring, the judgment is reversed, and the cause remanded.