American Brewing Association v. Talbot

• Decision Date: 09 November 1897
• Parties: American Brewing Association v. Talbot et al., Appellants
• Court: Missouri Supreme Court

42 S.W. 679

141 Mo. 674

American Brewing Association v. Talbot et al., Appellants

Supreme Court of Missouri, Second Division

November 9, 1897

Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.

Reversed.

W. C. & J. C. Jones and Lee & McKeighan for appellants.

(1) The court should have given the preliminary instruction offered at the close of plaintiff's testimony and given at the close of the case. The evidence showed without contradiction that the loss and damage occurred through the act of God namely, the unprecedented flood shown in evidence, and there was no substantial evidence to show or to justify the jury in finding that the plaintiff was guilty of any negligence. When it is shown that a loss or damage to goods has been caused by reason of the act of God, as in the case of a flood or storm or other unavoidable casualty, the defendant is excused unless plaintiff shows that the defendant was guilty of negligence proximately and immediately contributing to the loss, in such manner as to show that a loss would not have occurred but for the defendant's negligence. Davis v. Railroad, 89 Mo. 340; Reeves v. Railroad, 10 Wall. 189; Morrison v. Davis, 20 Pa. St. 171; Railroad v. School Dist., 96 Pa. St. 65; Henry v. Railroad, 76 Mo. 294; Milling Co. v. White Line, 122 Mo. 258; Witting v. Railroad, 101 Mo. 631; Otis Co. v. Railroad, 112 Mo. 622; Turner v. Haar, 114 Mo. 347; McPherson v. Railroad, 97 Mo. 253; Stoher v. Railroad, 105 Mo. 192; Cummings v. Mastin, 43 Mo.App. 558; McCarthy v. Wolfe, 40 Mo. 520; Withers v. Railroad, 3 Hurl. & N. 969. (2) The doctrine applied to warehousemen. Gashweiler v. Railroad, 83 Mo. 112; Buddy v. Railroad, 20 Mo.App. 206; State v. Meagher, 44 Mo. 356; Ducker v. Barnett, 5 Mo. 97. (3) Bailees are not responsible for loss occasioned by overpowering force. McEvers v. Steamboat, 22 Mo. 187.

Lubke & Muench for respondent.

(1) A warehouseman is responsible for loss, or destruction of, or for injury to, property intrusted to his keeping, when he has failed to exercise due and ordinary care in the custody of the property. What constitutes such care is always a question for determination by the triers of the facts, in view of all surrounding circumstances, judging the same by the degree of care ordinarily exercised by other persons similarly situated; and direct and positive evidence of such negligence is not required. 28 Am. and Eng. Ency. of Law, p. 642; Nichols v. Smith, 115 Mass. 332; Walden v. Finch, 70 Pa. St. 464; Holtzclaw v. Duff, 27 Mo. 395; Moulton v. Sheldon, 10 R. I. 218; Wilson v. Railroad, 62 Cal. 164. (2) The intervention of irresistible force, whether of human or divine agency, does not excuse the hired bailee, whose wrongful connivance, or culpable exposure, or breach of contract, or remissness of duty in any respect, whether for preventing the calamity or lessening its injurious effects, proves to have proximately occasioned the mischief. Schouler on Bail. & Car. [2 Ed.], sec. 101; Merch. Trans. Co. v. Story, 50 Md. 4; Pruitt v. Railroad, 62 Mo. 527; Ellet v. Railroad, 76 Mo. 536.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess, J.

This action was brought by plaintiff, a brewing company, against defendants, warehousemen, to recover the value of three thousand, three hundred and eighty-seven bushels of malt delivered by plaintiff to defendants, and which they failed to deliver upon demand; and also damage to four thousand, four hundred and forty-one bushels which were delivered by plaintiff to them, and which they returned to plaintiff in a damaged condition.

Plaintiff, who was at the time engaged in the brewing business in the city of St. Louis, stored a large quantity of malt with the defendants, who were warehousemen, and doing business as such in what was known as the Nedderhurt warehouse, on Main and Cedar streets, in the city of St. Louis, Missouri. The warehouses consisted of two connected buildings standing east and west. The one on the south was one story high, and known as Warehouse B. The one on the north was three stories high, and known as Warehouse A. The only connection between the two buildings is by a doorway on the first floor. The buildings were erected some twelve years before as a pork packing establishment, but had for six years at least been used for general storage.

During February and up to March 17, 1892, defendants received from plaintiff for storage one hundred and thirty-four loads of malt, all of which was stored in Warehouse A, where it remained until the eighteenth or nineteenth day of May, 1892, when the building sank, and a large part of the malt was returned to plaintiff in good condition, some of it damaged by water, some of it so badly damaged as to be worthless, this part of it being abandoned by plaintiff.

The manner of the collapse was by the breaking and giving way of the concrete foundations under the pillars upon which rested the central weight of the building, thus driving or sinking three of the pillars next to the south wall near the eastern center of the building into the ground and completely out of sight, and two of the pillars in the next tier north into the ground two or three feet. The timbers did not break, nor did the walls of the building give way.

The soil upon which the warehouse was erected was made by accretions, was sandy, and softened when brought in contact with water. Leschen, one of the defendants, knew what the soil was, and that it was sand and loam mixed with accretions. It was shown by the evidence that this sort of soil affords a good foundation when dry, but very bad when permeated by water. During the early party of May the water in the Mississippi river began to rise, and continued to rise a few inches each day until May 19, when the highest stage of water known at St. Louis was reached. Witnesses differed as to the probable weight contained in the building, as well also as to the carrying capacity of the first, second, and third floors, but as it is clear from the evidence that the collapse was not caused by overloading, the difference is not material. On Saturday or Sunday, the fourteenth or fifteenth of May, water from the sewer, which was backed up by the high stage of water in the river into which it empties, began to flow into the cellar of Warehouse B, through the sewer opening connecting that cellar with the street sewer. On Monday, May 16, fearing the water might get into the cellar of Warehouse A and wet the cement and other articles stored there, the defendants commenced moving goods out of that cellar. There was not a large quantity of goods in the cellar of Warehouse A, and they were all removed during the afternoon of Tuesday, May 17. In moving and caring for these goods the defendants employed eight men. These goods, mostly tobacco, rags and paper, were stored in different parts of the warehouse, the largest and heaviest part being on the horse-way, which extends from east to west through this warehouse. This horse-way is something like a bridge, is on a level with Main street at one end, and on a level with the alley at the other. It is three feet higher than the cellar floor and about four feet lower than the first floor, and wide enough to permit the passage of grain wagons for which it was used. This driveway was supported by separate pillars, and no part of it was connected with the building or supported by anything that was any part of the building. The balance of the goods were distributed throughout the three floors wherever there was room to place them.

No water appeared in the cellar of Warehouse A until the forenoon of Tuesday, when it was discovered to be seeping through the wall of the building on the north, when defendants at once began moving the goods to an apparent place of safety from the water, and by 7 o'clock that evening had them all moved. About 8 o'clock on Wednesday morning, May 18, one of defendants' employees discovered that the first floor was not on a level, and that the floors were being gradually separated from the walls of the building to which they were attached. He immediately notified defendants' superintendent and the defendant Talbot of the condition of the floors. It was then too late to remove the goods from the building, and at twenty minutes to 9 o'clock on the next morning the pillars sank, the floors went down and a large part of plaintiff's malt went into the cellar and into the water. Plaintiff was immediately notified, and moved such of the malt as was worth moving.

Defendants knew that the water was gradually rising for ten days or more before the collapse, and for at least four days before knew that the water was at a level with the bottom of the warehouse cellar, but did nothing with the goods except to move them onto the first, second and third floors. Defendant Talbot testified that "with time enough, and men enough, we might be able to move what was in the building in a day or two." Miller, defendants' bookkeeper, testified: "There would have been no trouble to unload the building by turning the grain into wagons, if I had thought there was any danger."

Plaintiff recovered judgment for $ 4,448.30, from which defendants appeal. At the close of plaintiff's evidence and again at the close of all the evidence, defendants asked an instruction in the nature of a demurrer thereto, which was refused by the court, to which ruling defendants duly excepted. It is insisted by defendants that the evidence showed that the loss and damage were occasioned by the act of God, namely, the unprecedented flood, and as it was not shown that they were guilty of any negligence contributing to the loss and damage, that the instruction should have been given.

The testimony in the case shows one of the...