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

• Decision Date: 19 May 1913
• Citation: 170 Mo. App. 585,157 S.W. 116
• Court: Missouri Court of Appeals
• Parties: DISBROW v. PEOPLE'S ICE, STORAGE & FUEL CO.

157 S.W. 116

170 Mo. App. 585

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

Kansas City Court of Appeals. Missouri.

May 19, 1913.

1. EVIDENCE (§ 265) — ADMISSIONS — EFFECT.

In an action against a cold storage company by the owner of butter, which he claimed was injured by the negligence of the company, an admission by the owner that the bill for the storage was correct is not an admission that he was indebted to the storage company in that amount.

2. TRIAL (§ 330) — VERDICT — COUNTERCLAIM.

In an action against a cold storage company for damages to property stored, where the company counterclaimed for a storage bill, the verdict should show a finding of plaintiff's damages, the amount of defendant's counterclaim, and the difference between the two, if any; and, if the finding for plaintiff be less than the counterclaim, the difference in defendant's favor should be stated as a verdict for defendant, or vice versa.

3. APPEAL AND ERROR (§ 1064) — REVIEW — HARMLESS ERROR.

In an action against a cold storage company for damages to butter, where defendant set up a counterclaim for storage dues and plaintiff admitted that the amount of the dues was correct, a peremptory instruction to find for defendant for the amount of its counterclaim was prejudicial, as leading the jury to believe that a finding should be made for it regardless of plaintiff's claim, and the proper method being to submit the question of plaintiff's damage and have the jury subtract from any finding of damage the storage claim due.

4. EVIDENCE (§ 472) — OPINION EVIDENCE — SUBJECT-MATTER OF OPINION.

In an action against a storage company for negligent damage to goods stored, opinion evidence as to whether defendant exercised reasonable care, and whether the witness discovered any negligence on the part of defendant, is inadmissible because taking from the jury the matter which it was to determine, viz., defendant's negligence.

5. EVIDENCE (§ 317) — HEARSAY.

In an action against a cold storage company for damages to butter, hearsay testimony of a statement of an expert who examined the butter belonging to another concern, is inadmissible.

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

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

New, Kennish & Krauthoff and John Taylor, all of Kansas City, for appellant. Warner, Dean, McLeod & Timmonds, of Kansas City, for respondent.

ELLISON, J.

Defendant is proprietor of a cold storage plant, and stores products for preservation. Plaintiff was the owner of a large lot of butter, which he delivered to defendant for storage. He alleges that on receiving the butter back from defendant it had a foreign or "fruity" taste and odor, and was greatly injured, to his damage in the sum of $3,371.29. He further alleged that this was caused by defendant's negligence in allowing it to come into close contact with foreign substances, such as fruits. Defendant's answer was a general denial and a counterclaim of $510.04, and interest, for storing the butter. There were two separate verdicts in the trial court, one for defendant on plaintiff's claim, and the other for defendant on its counterclaim. This is the second appeal; the first will be found in 138 Mo. App. 56, 119 S. W. 1007.

The trial court gave a peremptory instruction to find for defendant on its counterclaim in the sum of $510.04, and that interest might be added, and this is one of the grounds for the appeal. The instruction is said to be proper, for the reason that plaintiff, while on the witness stand, admitted he had not paid the storage, that an account for the amount claimed had been rendered to him, and that it was correct. It is contended that this destroyed the issue made by the pleadings and left nothing for the court to do but direct a verdict for the amount admitted to be due. But it is evident from the whole record that plaintiff did not mean to admit that he owed defendant $510.04 for storage, even though defendant had destroyed the value of his butter by negligence in caring for it. It is evident plaintiff was admitting the storage account to be correct, but not that it was entitled to a verdict for that amount.

Plaintiff's action is for the recovery of damages for negligent storing of the butter, which damages he claims is the difference in the market value in its damaged condition at redelivery and its market value if it had not been damaged, but out of this should be deducted defendant's account for storage. If plaintiff's damage is more than the admitted bill for storage, then the verdict should be for plaintiff for the difference. If, however, plaintiff's damage is less than the admitted storage account, then the verdict should be for defendant for the difference. The...