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State v. State

State v Hayes, 81 Mo loc cit 585, and cases cited. If any imperious necessity demands that a juror withdraw from his fellows, in order to answer a call of nature, and this withdrawal is done under official supervision, while the remaining jurors are securely locked in their room, this would be, in spirit and reason, if not in letter, a compliance with the law, and this was the ruling in Collins' case, 86 Mo. 245. In the case at bar however the law was not complied with, either in spirit or in letter. Without the existence of any compelling necessity, the sheriff failed to observe his oath, and his duty to keep the jury together, he allowed them to separate, and this conduct of his brings this case within the principle announced in Collins' case, when first here, when we reversed the judgment because of such separation. 81 Mo. 652.” MORTON, C. J., and RAY, J., dissent

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In State v. Washburn, 91 Mo. 571, after the jurors had retired to consider their verdict on a trial for felonious assault, the officer in charge, under the direction of the court. took two of them to a water closet in the rear of the saloon. directly across the street from the court house, and on their return they passed into the saloon, when the officer procured a glass of beer for one and a cigar for the other, the whole transaction occupying a brief space of time, and it appearing that the jurors spoke to no one except the deputy sheriff, and nothing was said to him in reference to the case, held, there was no ground for interfering with the verdict.

The court said "It has been twice held, in capital cases, that the mere separation of a juror from his fellows during the progress of the trial, to answer a call of nature, the juror being under the charge of an officer, constituted no ground for a reversal of the judgment. State v. Collins, 86 Mo. 245. State v. Payton, 90 Mo 220. In the last case, and in one instance considered in the first, the separations were without the consent or directions of the court but allowed by the officer in charge of the jurors There is nothing inconsistent between those cases and the more recent one of the State v. Murray, 91 Mo 95, tor in the last case the doctrine is clearly asserted, that even in capital cases. section 1909 must have accorded to it a reasonable interpretawon and that the withdrawal of a juror from urgent necessity, under the supervision of an officer, would in spirit and reason be a compliance with the law The fact that the jurors had retired to consider of their verdict, does not change the rule of the Collins and Payton cases.

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It being lawful in Mississippi for railroads and steamboats to do business on Sunday, a wharfboat proprietor is liable for negligence in not shipping goods on Sunday, if it is his custom so to ship goods.

W. shipped cotton to New Orleans by railroad, taking a through bill of lading. The railroad company, a warehouseman, and a steamboat company, had a general contract by which the railroad agreed to receive cotton from shippers and deliver to the warehouseman, who agreed to hold it till the arrival of the steamboat and then ship it thereon for New Orleans. W. knew nothing of this contract. Held, that the railroad company could not bind W. by a contract with the warehouseman in reference to W's cotton, which would relieve the warehouseman from the consequences of his own negligence or impose on W. the consequences of the contributory negligence of the railroad company.

The cotton being burned while in the hands of the warehouseman, who had failed to ship it by the first boat for New Orleans, but had awaited the departure of the boat with whose owner he had the general contract above alluded to, held, that if he, as a man of ordinary prudence, had notice from the surrounding circumstances of the danger from fire to which the cotton was exposed, it was his duty to ship it by the first opportunity.

But if the fire did not occur from any of the causes which should have reasonably excited apprehension, but from another and distant source, not a cause of reasonable apprehension of danger from fire, then the warehouseman is not liable for the loss.

A

CTION for loss of goods delivered for carriage. The opinion states the facts. The plaintiff had judgment below.

Phelps & Skinner and Campbell & Starling, for appellant.

Le Roy Percy, for appellee.

COOPER, C. J. The appellees delivered to the Georgia Pacific Railroad Company certain cotton consigned to their commission merchants in the city of New Orleans. This cotton was carried under a through contract of affreightment, but the railroad was to deliver it to the appellant at Greenville at its cotton yard, and appellant was to deliver it to the steamer, by which the journey was to be completed. There was a contract between the railroad company, the appellant, and the steamers Helena and Choteau under which

Merchants' Wharfboat Association v. Wood.

cotton from the interior was to be taken on through bills to New Orleans at a certain rate, of which the railroad received a certain sum, the appellant another, and the steamers the remainder. Where freights were not prepaid the railroad company on delivery to the appellant was paid by that company its freight, and when delivered by the appellant to the steamers they in turn repaid it the amount paid to the railroad company and also paid the sum due to appellant for its services, collecting from the consignee the total charges. Appellant is a warehouseman and forwarder, but not a common carrier. The steamers Helena and Choteau were due at Greenville on Saturday of each week, but they were frequently, if not usually, behind time, and it seems there was an agreement between the parties to the contract (the railroad company, the appellant, and the steamers) that cotton might be forwarded by other boats whenever the Helena or Choteau should be more than twenty-four hours late. Whether this modification of the contract was in force at the time of the loss of appellees' cotton is controverted, but for the purposes of this decision we will assume that it was.

Appellees' cotton was delivered by the railroad company to the appellant on Tuesday, the 22d day of December, 1885, and was destroyed in its yard by fire on Tuesday, the 29th, and to recover the value of the same this suit was brought. It is conceded that the fire was non-negligent in its origin. It originated in an oil mill which for three weeks before that time had not been running, and from thence was communicated to the cotton yard by burning shingles from the mill carried by an unusually high wind, which chanced to be blowing from the direction of the mill toward and across the yard. The ground upon which liability is sought to be fixed upon appellant is that it was guilty of negligence in not shipping the cotton to New Orleans on Sunday, the 27th, by the steamer Richardson, which then passed down the river and would have taken it if it had been tendered for transportation.

The appellant interposed several defenses to the suit: first, that it had no opportunity of shipping out the cotton except that afforded by the Richardson, and this being on Sunday it was not bound to ship by that boat, second, that under its contract with the railroad company and the steamers Helena and Choteau it was justified in holding the cotton until the arrival of one of those boats, third, that the railroad company was the agent of the plaintiff, and as such agent delivered the cotton upon an implied direction to hold

Merchants' Wharfboat Association v. Wood.

for shipment by the Choteau or the Helena; fourth, that the railroad company knew the dangerous condition of the yard and as agent of the shipper was guilty of contributory negligence in depositing the cotton in the yard; fifth, that there was no negligence in the detention of the cotton; and sixth, that the loss was not occasioned by the detention but by an independent proximate cause, viz., the burning of the oil mill.

On the trial it was shown that the yard of appellant was at the time of the reception of the cotton crowded with other cotton, much of which was not held for immediate shipment but was owned by purchasers who were in the habit of accumulating large lots before shipping out to eastern mills. Much of this cotton had been sampled by cutting large slits in the sides of the bales, and the samples when drawn were placed upon the bales, rendering them peculiarly easy of ignition. The yard was a place of public sale where cotton was carried and left until sold, where transactions of sale were made, and many persons assembling there for that purpose were in the habit of smoking, though forbidden so to do by the rules of the company and by posted notices. The engines of the railroad were driven in and through the yard in delivering the cotton transported by it. There were several small houses occupied by negroes adjacent to the yard, and one house used by the company in which cotton seed was stored. It also appears that the defendant was accustomed to ship out cotton on Sunday, that being the day on which the boats patronized by it most frequently arrived or departed.

In view of the latter fact we think the defendant could not avoid any liability which otherwise would attach to it on the ground that it was not under a duty to violate the Sabbath. It is certain that it was not for this reason it refused to deliver the cotton to the Richardson, and that it would have shipped it by the Helena or the Choteau if either of them had arrived on that day.

By the laws of this State (Code of 1880, § 2949,) the transaction of secular business on the Sabbath is prohibited and made penal, but the proviso to that section is "that nothing in this section shall apply to railroads or steamboat navigation in this State." The business in which appellant was engaged in reference to the property of the appellees was so intimately connected with that of steamboat navigation and so necessary to it as to fall within the exception of the proviso to the statute. We do not understand

Merchants' Wharfboat Association v. Wood.

that a railroad company or a steamboat is bound to transact business on the Sabbath merely because the statute permits it to be done, but if they hold themselves out to the public as so doing and enter upon business, which according to their usage and habits will be transacted on that day, they cannot shield themselves for either misfeasance or nonfeasance, because it was done or omitted to be done on the Sabbath.

We dissent from the proposition advanced by appellant that the railroad company, being the agent of the appellees to deliver the cotton and having knowledge of the condition of the cotton yard at the time the cotton was deposited therein, was guilty of contributory negligence in depositing it there, and that the appellees, as the principal of the negligent agent, are also to be held guilty of such negligence; nor do we assent to the view that the railroad, as the agent of the shipper, selected the boats by which the cotton was to be transported. There is no fact disclosed by the record proving or tending to prove that appellees had any notice of the tripartite contract between the railroad, the appellant, and the steamers, under which they were accustomed to transport freights. By its contract the railroad company agreed with appellees to take their cotton at a stipulated price from the place of shipment to New Orleans, but was to be liable for losses only which might occur while the property was in its hands. The shippers had no interest in or knowledge of the contract it had made with other connecting carriers, but they had reasonable ground to believe and were justified in believing that the wharf-boat company, to whom the cotton was to be delivered to be forwarded by the steamer, and the steamer by which it should afterward be carried would exercise that degree of care and prudence that the law devolved upon them, and for a failure so to do would be responsible in damages. Under some circumstances it may be that a carrier is the agent of the shipper, but that relation does not exist under the contract here made to the extent claimed by the appellant. The contract was made between the railroad, for itself, the appellant, and the connecting carrier on the one part, and the shipper on the other. There is nothing in it from which can be inferred a power in the railroad as agent of the shipper to make a contract with the appellant which would relieve it from responsibility for its own negligence, or to bind the shipper by any contributory negligence of which the carrier railroad company might be guilty. The railroad

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