American Brewing Co. v. Talbot

• Decision Date: 17 July 1897
• Parties: AMERICAN BREWING CO. v. TALBOT et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Missouri Supreme Court

42 S.W. 679

141 Mo. 674

AMERICAN BREWING CO. v. TALBOT et al.¹

Supreme Court of Missouri, Division No. 2.

July 17, 1897.

WAREHOUSEMEN — LOSS OF GOODS — ACT OF GOD — NEGLIGENCE — EVIDENCE — BURDEN OF PROOF.

1. Where a plaintiff shows delivery of property to another for storage for hire, and failure to return the same upon demand, a prima facie case of negligence is established. But, if defendant thereupon shows that the failure to deliver is due to the "Act of God," the burden shifts to plaintiff to establish that the failure was due to loss through want of the exercise of ordinary diligence and care in the storage of the property.

2. A large quantity of malt was received by a party, and, for hire, stored in a three story warehouse near the bank of a river, near sewer outlets. The building stood upon a sandy soil, affording good support when dry, but bad when wet. Flooding of the site from the river never had been known, and the building had been constructed with reasonable care. An unprecedented rise occurred in the river, backing the water into the sewers, and softening the earth under the building, until, although it had not been overloaded, the supports thereof sank into the ground, and affected the building in such a manner as to cause the malt to fall into the water in the cellar, resulting in the loss of part and damage of part. The bailee had knowledge of the rising of the water as it occurred, but did nothing except to move property from the cellar to other floors. Held, that the bailee was not negligent.

Appeal from St. Louis circuit court; L. B. Valliant, Judge.

Action by the American Brewing Company against M. S. Talbot and Henry Leschen. From a judgment for plaintiff, defendants appeal. Reversed.

W. C. & J. C. Jones and Lee & McKeighan, for appellants. Lubke & Muench, for respondent.

BURGESS, J.

This action was brought by plaintiff, a brewing company, against defendant warehousemen, to recover the value of 3,387 bushels of malt delivered by plaintiff to defendants, and which they failed to deliver upon demand, and also damage to 4,441 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 Warehouses," on Main and Cedar streets, in the city of St. Louis, Mo. 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 12 years before, as a pork-packing establishment, but had for 6 years, at least, been used for general storage. During February, and up to March 17, 1892, defendants received from plaintiff for storage 134 loads of malt, all of which was stored in Warehouse A, where it remained until the 18th or 19th day of May, 1892, when the building sank, when a large part of the malt was returned to plaintiff in good condition, some of it damaged by water, and 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 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 buildings give way. The soil upon which the warehouses were 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 part of May the water in the Mississippi river began to rise, and continued to rise a few inches each day until May 19th, 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 14th or 15th 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 16th, 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 17th. In moving and caring for these goods, the defendants employed 80 men. These goods, mostly tobacco, rags, and paper, were stored in different parts of the warehouse, the largest and heaviest part being on the horseway, which extends from east to west through this warehouse. This horseway 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 18th, one of defendants' employes 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 20 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 10 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 cellars, 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 most extraordinary stages of water in the Mississippi river ever known in the city of St. Louis, characterized by Mr. Kochler, president of the plaintiff, and who testified in its behalf, as "phenomenal"; that, about four days before the pillars gave way and the floor sank, the water was at a level with the bottom of the warehouse cellars; and on Tuesday morning before the collapse, on Thursday, it was coming in through the wall on the north and other places, and, as a result, softening the sandy loam under the pillars, which caused them to sink and the floors to give way, precipitating the malt into the mud and water. The warehouse was not overloaded, and the collapse could not, under the evidence, be attributed to any other cause than the unprecedented high stage of water, and was what is known in law as the act of God. The collapse being caused by reason of the act of God, defendants cannot be held to respond for the value of the malt received by them from plaintiff in storage, which they failed to return on demand, nor for damages to any of the malt received in the same way, and which was redelivered to plaintiff in a damaged condition, unless it appears from the evidence that the defendants were guilty of negligence directly contributing to the loss or damage. Davis v. Railway Co., 89 Mo. 340, 1 S. W. 327; Railroad Co. v. Reeves, 10 Wall. 189; E. O. Stanard Milling Co. v. White Line Cent. Transit Co., 122 Mo. 256, 26 S. W. 704; Turner v. Haar, 114 Mo. 347, 21 S. W. 737.

The petition does not allege...