Churchill v. Walling

• Decision Date: 14 April 1921
• Docket Number: 8 Div. 290
• Citation: 88 So. 582,205 Ala. 509
• Parties: CHURCHILL v. WALLING.
• Court: Alabama Supreme Court

88 So. 582

205 Ala. 509

CHURCHILL v. WALLING.

8 Div. 290

Supreme Court of Alabama

April 14, 1921

Appeal from Circuit Court, Morgan County; O. Kyle, Judge.

Action by W.J. Walling against A.F. Churchill for damage to cotton while stored in defendant's warehouse. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Where the receipt for cotton accepted by the owner from defendant warehouseman sued for damage thereto expressly stated the cotton was received in a damaged condition, though such language was subject on the part of the owner to explanation by parol testimony, it was not deprived of all effect, in view of the Uniform Warehouse Receipt Act, § 3, and no presumption of law or of fact arises relative to damage of the cotton against defendant warehouseman, but the burden rests throughout on plaintiff owner to satisfy the jury the damaged condition of the cotton was produced by want of ordinary care or prudence on the part of the warehouseman as to the storage thereof.

Suit by appellee against appellant, tried upon count 1 and the general issue thereon. Count 1 is as follows:

"Plaintiff claims of the defendant the sum of $3,000 as damages for that the defendant is now, and was during the month of November, 1918, and in the interim, engaged in the business of a public warehouseman, and storing, handling, and caring for cotton for a reward, and on, to wit, the 20th day of November, 1918, the plaintiff stored with the defendant at its warehouse in Albany, Ala., 147 bales of cotton, and, on to wit, the 16th day of January, 1919, the plaintiff stored with the defendant at its said warehouse, 24 bales of cotton all of which the defendant agreed to keep for the plaintiff and to exercise ordinary care and diligence in the care of the same; and the plaintiff paid to the defendant the charges required and demanded of him for such services.

"And plaintiff avers that through lack of ordinary care and diligence the said cotton, while at the defendant's warehouse, became stained and rotten and molded and decreased in value, to his damages as aforesaid."

Demurrer to this count was overruled.

The plaintiff owned a plantation 25 miles from Albany, where defendant's warehouse was located; and in September October and November, 1918, the plaintiff operated a gin on said plantation, and all the cotton stored with the defendant was there ginned. When the cotton was ginned it was thrown out into the lot, and later moved a distance therefrom and stacked along the public road. Some of the plaintiff's evidence showed that this cotton was placed on the grass, and other evidence that it was placed on cedar poles, and turned over twice a week while on the plantation, but was rained on several times while on plaintiff's premises. In November 1918, the plaintiff moved 147 bales, and late in January moved 24 bales of the cotton from his plantation to the river, loaded it on a barge to be forwarded to Decatur, and in so moving several of the bales were wet and became muddy. The cotton on the barge, being exposed, was rained on during the night, and on reaching Decatur some few of the bales fell into the river, while others were rolled on the river bank getting mud on a number of them. Plaintiff testified that he supposed nearly all of the bales had more or less mud on them, some more than others; that the rain had gotten through the bagging, but the mud had not.

In this condition the cotton was delivered to the defendant at his warehouse. Receipts were issued therefor, and upon the face of these receipts, following the word "condition," were the words "wet, muddy and damaged," or on some of them the words "all wet and damaged." The plaintiff insists that he protested against this character of receipt, and that the cotton was not damaged. The evidence for the defendant tends to show that defendant's agent and plaintiff went to look at the cotton after this protest was made, and plaintiff conceded it was worse than he had thought. Plaintiff insists that he took the receipt in this manner, and that defendant promised to dry out the cotton on the platform and then store it. The defendant did store the cotton in rows on the platform, where it was rained on a number of times.

Plaintiff's evidence tended to show that the cotton was not permitted to dry out, and then stored in the warehouse under shelter, but was taken under the shelter in a wet condition, and stored, bale on bale, as high as the ceiling, with no space in between, and that this was improper, and caused the cotton to mold and rot, causing him damage. Defendant offered proof tending to show the cotton was left on the platform in order for it to dry, and was changed frequently, and afterwards was placed under shelter in such a way that the air could get to all the parts, and this was the proper manner of storing. Defendant's evidence also went to show the cotton was damaged at the time it was delivered, and merely remained so.

In April, 1919, the cotton was delivered to the plaintiff, who sold the same to one Kortretch under an agreement that the latter was to recondition the cotton, that is, pick the damaged part off of it, and was to receive the pickings free of charge and pay the plaintiff 24 95/100 cents for the cotton. The cotton was moved on the platform and reconditioned by two cotton men. The evidence for the defendant tended to show the cotton was picked heavily, that is, too much picked off, and that Kortretch paid the plaintiff for good cotton at the rate of 24 95/100 cents per pound, while cotton was worth 26 cents per pound.

Plaintiff was permitted to show, over defendant's objection, the condition of the cotton when it left the gin for Decatur. The plaintiff, while a witness in his own behalf, was asked to state "how much was picked off the cotton that you did not get pay for?" to which defendant objected. The objection being overruled, the witness answered, "About $2,700 or $3,500." Defendant's motion to exclude this answer was overruled. Witness Kortretch was examined for the plaintiff, as an expert in cotton and the man who bought plaintiff's cotton, and was asked on cross-examination the following question:

"For instance, if cotton had been ginned in September and October, and thrown out on the gin lot, and gotten dirt on it, and then stacked up out in the open, and probably got more dirt on it, and then was allowed to be exposed to the weather from that time up until

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