Disbrow v. People's Ice, Storage & Fuel Co.

• Citation: 138 Mo. App. 56,119 S.W. 1007
• Parties: DISBROW v. PEOPLE'S ICE, STORAGE & FUEL CO.
• Decision Date: 31 May 1909
• Court: Court of Appeal of Missouri (US)

119 S.W. 1007

138 Mo. App. 56

DISBROW v. PEOPLE'S ICE, STORAGE & FUEL CO.

Kansas City Court of Appeals. Missouri.

May 31, 1909.

1. DAMAGES (§ 188)—EVIDENCE.

Where, in an action against a storage company for damages through negligent handling of plaintiff's butter, there was evidence that some of the butter was worth 13 cents per pound, but it also appeared that some of it, after the outside had been taken off, sold for nearly the price of first-class storage butter undamaged, and some for less, but for more than 13 cents per pound, the evidence was too uncertain to afford a basis for the computation of damages.

2. TRIAL (§ 194)—INSTRUCTION—WEIGHT OF EVIDENCE.

In an action against a storage company for damages through negligent handling of plaintiff's butter, an instruction that it was not necessary for plaintiff to show that each tub of butter delivered to defendant was inspected, but that, if the butter was found, according to the usual commercial test, to be free from fruity or ammonia flavor, the jury might find that the butter was delivered to defendant in good condition, was erroneous, as being on the weight or credibility of the evidence.

3. TRIAL (§ 139)—WEIGHT OF EVIDENCE.

The credit and weight of evidence is a matter solely for the consideration of the jury.

4. TRIAL (§ 244)—INSTRUCTIONS.

The court may not particularize certain evidence, and tell the jury that it suffices to authorize them to find for a party.

Appeal from Circuit Court, Jackson County; James H. Slover, Judge.

Action by W. A. Disbrow against the People's Ice, Storage & Fuel Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Warner, Dean, McLeod & Timmonds, for appellant. Karnes, New & Krauthoff and Arthur Miller, for respondent.

BROADDUS, P. J.

This is a suit to recover $3,371.29 as damages by reason of the defendant's careless and negligent handling of a lot of creamery butter stored by the respondent in the defendant's storage house. The plaintiff is engaged in the wholesale butter business in Kansas City. The defendant is a corporation engaged in the ice and cold storage business, whereby it receives fruit, butter, eggs, and other commodities to be kept in cold storage rooms for preservation. During the months of June, July, August, and September of 1905 plaintiff delivered to defendant about 4,500 pounds of creamery butter for the purpose of having it stored and properly kept in the cold storage vault of defendant. The butter in question came from creameries in different parts of Kansas in tubs of about 60 pounds each. The defendant did not inspect the butter. It was inspected by plaintiff on receiving it in the following manner: From 3 to 5 tubs out of a lot of 50 were tested by the use of an instrument called a "tryer," which was in the form of a hollow tube, which would be run to the...