Disbrow v. People's Ice, Storage & Fuel Company
| Decision Date | 31 May 1909 |
| Citation | 119 S.W. 1007,138 Mo.App. 56 |
| Parties | W. A. DISBROW, Respondent, v. PEOPLE'S ICE, STORAGE & FUEL COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. James H. Slover, Judge.
REVERSED AND REMANDED.
Reversed and remanded.
Warner Dean, McLeod & Timmonds for appellant.
(1) There is no evidence to support the verdict of the jury as to the amount of plaintiff's damages. (2) Where damages resulting from a breach of a contract are capable of being estimated by a strict money standard, it is incumbent upon the party claiming them to give evidence of the amount of his damages; otherwise, his recovery will be confined to nominal damages. Barngrower v. Maack, 46 Mo.App. 407; Webb v. Coonse, 11 Mo. 9; Shudy v. Brick Works, 25 Mo.App. 527; Stewart v. Patton, 65 Mo.App. 21; Burdall v. Johnson, 122 Mo.App. 119. (3) The court committed error in giving plaintiff's instruction number 4. (4) The court committed error in the giving of plaintiff's instruction number 2. Shanahan v. Transit Co., 109 Mo.App. 228; Imboden v. Trust Co., 111 Mo.App. 243; Eckhard v. Transit Co., 190 Mo 630.
Karnes New & Krauthoff and Arthur Miller for respondent.
(1) The testimony of Mr. Lohse shows that the market price of butter of this grade which was not tainted with a fruity or ammonia flavor would have been from twenty-four to twenty-five cents per pound. (2) "When property is not entirely lost or destroyed, but only impaired in value, the measure of damages is the difference between the value before the injury and immediately thereafter, and the reasonable expenses incurred or value of time spent in reasonable endeavor to preserve or restore the property injured." Cunningham v. Dickerson, 104 Mo.App. 413; 1 Field on Damages, 621; Dietrich v. Railroad, 89 Mo.App. 36; Hoffman v. Railroad, 51 Mo.App. 273. (3) The only objection appellant has to this instruction is that it assumes that the fruity or ammonia flavor would damage the butter. The testimony of all of the witnesses was to the effect that a fruity or ammonia flavor would damage butter, and this was the theory on which both sides tried this case; in fact, the defendant asked an instruction which the court gave, which is as follows: (4) A party cannot complain of an error in an instruction given for the opposite party, when his own instructions contained the same error. Holmes v. Bradwood, 82 Mo. 616; Davis v. Brown, 67 Mo. 314; Thorpe v. Railroad, 89 Mo. 666; Christian v. Insurance Co., 143 Mo. 467; Smart v. Kansas City, 208 Mo. 204; Tube Wks. Co. v. Ice Mach. Co., 201 Mo. 64; Soldanels v. Railroad, 23 Mo.App. 516, 522; McDonald & Co. v. Cash, 45 Mo.App. 66, 81; Nagel v. Transit Co., 104 Mo.App. 438, 444. (5) It is next contended by appellant that the court erred in giving instruction number 2 for the plaintiff for various reasons. First it is claimed that there is no evidence that the usual commercial test was applied to any of the butter. This is erroneous. (6) An instruction which merely states the essential facts which the plaintiff is required to show in order to authorize a verdict for him is not a commentary on the evidence. Milling Co. v. McWilliams, 121 Mo.App. 319; Lumber Co. v. Hartman, 45 Mo.App. 647.
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 forty-five hundred 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 sixty pounds each. The defendant did not inspect the butter. It was inspected by plaintiff on receiving it in the following manner. From three to five tubs out of a lot of fifty 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 bottom of a tub and, on being pulled out, would contain a core of butter. An examination of this core would be sufficient to inform an expert practically of the condition of the entire tub. The plaintiff's testimony was to the effect that the butter thus inspected showed no foreign flavor, but that when it was redelivered to him by defendant on the 13th day of October, 1905, it had a fruity or ammonia flavor. His evidence also tends to show that it must have been thus injured by coming in contact with the flavor of fruit at defendant's storage plant. Other reference will be made to the testimony in the course of the opinion.
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