Dugdale Packing Co. v. Lowden

• Decision Date: 06 April 1942
• Docket Number: No. 19935.,19935.
• Citation: 160 S.W.2d 832
• Parties: DUGDALE PACKING CO. v. LOWDEN et al.
• Court: Missouri Court of Appeals

160 S.W.2d 832

DUGDALE PACKING CO. v. LOWDEN et al.

No. 19935.

Kansas City Court of Appeals. Missouri.

April 6, 1942.

Appeal from Sixth Circuit Court, Buchanan County; Emmett J. Crouse, Judge.

Action by Dugdale Packing Company against Frank O. Lowden and others as trustees for the Chicago, Rock Island and Pacific Railway Company, for damages to meat shipped by plaintiff. From an order granting a new trial to defendants after verdict for plaintiff, plaintiff appeals.

Affirmed.

Strop & Strop, of St. Joseph, for appellant.

Culver, Phillip, Kaufman & Smith, of St. Joseph, and Hogsett, Murray, Trippe, Depping & Houts and J. D. James, all of Kansas City, for respondents.

BOYER, Commissioner.

This is an appeal from an order granting a new trial to defendants after verdict in favor of plaintiff. The action sought compensation for damage to a certain carload of fresh meat shipped by plaintiff from St. Joseph, Missouri, to its consignee at Washington, D. C. Verdict and judgment for plaintiff were set aside and defendants granted a new trial on the ground of the mistake of a witness who testified that plaintiff had not received or paid a bill or statement for re-icing the car of meat in question at either Canton or Columbus, Ohio. It appears to be conceded that the witness was mistaken in his testimony. Among other things, appellant contends that the re-icing of the car at Columbus, Ohio, and the payment of the bill therefor, was not a material issue in the case and the granting of a new trial for that reason was an abuse of discretion.

To sustain the order granting a new trial, respondents contend that the mistaken testimony of the witness was relevant to material issues, including that of plaintiff's negligence in causing the damage; whether the meat was delivered to defendants in good condition; the inherent tendency of the meat to deteriorate or decay; and to the issue of defendants' negligence. And as an additional ground for sustaining the order, respondents urge error in plaintiff's Instruction No. 2.

Appropriate reference to the pleadings, evidence and instructions is the following: The petition alleged in part that on the 13th day of August, 1938, plaintiff delivered to the defendants 300 pieces of fresh meat properly packed in good merchantable condition, destined to Washington, D. C.; that defendants accepted said meat and acknowledged receipt of same in good condition; that the meat arrived in Washington, D. C., in a slick, slimy, spoiled, and off condition; that plaintiff gave timely written notice to defendants of its claim therefor; that defendants notified plaintiff, in writing, that they denied any and all liability in said matter. The petition alleged the reasonable market value of the meat when delivered to defendants at St. Joseph, and the reasonable market value thereof if it had arrived in Washington in the same condition in which plaintiff delivered it to defendants; and further alleged the reasonable market value of the meat in the condition in which it did arrive at Washington, the difference being $1,699.81, for which plaintiff demanded judgment.

The answer denied each and every allegation of the petition other than that the named defendants were the duly appointed trustees of the Railway Company and in charge of its management and operation. Extended reference is then made in the answer to certain tariff rules approved by the Interstate Commerce Commission which define certain duties and responsibilities of shippers and carriers of perishable freight, and that said shipment was perishable freight and subject to said rules and regulations. The answer further states that the loaded car was received for transportation on August 13, 1938; that it was properly transported in less than the regular scheduled time for said movement, and that the bunkers were refilled with ice and salt at each of the icing stations as requested by plaintiff, and reached its destination in Washington on the 16th of August. It is next alleged that during the time the car was being loaded extremely hot weather prevailed; that plaintiff negligently prolonged the work of loading said car for more than twenty-four hours and was negligent in frequently opening the doors of said car and exposing the contents thereof as it was being loaded, thereby causing the meat to deteriorate while it was being loaded, which deterioration was increased by the fact that plaintiff was also negligent in failing to pre-cool said dressed meat properly as is customary and necessary before placing it in said car; that it was not the duty of defendants to re-ice said car during the time it was being loaded unless requested by plaintiff so to do, but that the plaintiff, knowing that under said prevailing weather conditions and because of the unreasonable length of time taken by it in the loading of said car, and its failure to pre-cool said meat properly before loading, as herein alleged, and knowing that said car should have been re-iced while in process of being loaded, negligently failed to refill said bunkers with ice during said time and failed to request defendants so to do. The concluding paragraph in the answer in reference to the negligence of the plaintiff is the following:

"That defendants pre-iced said car before setting the same for loading, re-iced the same when it was loaded and ready for shipment and re-iced the same each time with said 12% solution of salt as directed by plaintiff in writing and transported said car to its destination at Washington, D. C., promptly and in advance of the scheduled time for its arrival at that place, and that if said meat on its arrival at its said destination was slick, slimy, spoiled and off condition as alleged by plaintiff, then such condition was due solely to the negligent acts of plaintiff as hereinbefore set out."

The reply was a general denial.

According to plaintiff's evidence it is engaged in the meat packing business at St. Joseph, Missouri, subject to government inspection. The Great Atlantic & Pacific Tea Company was a regular weekly customer of the plaintiff and placed its orders with plaintiff one week in advance, giving plaintiff time to order refrigerator cars in advance to assure proper pre-cooling of the cars for loading and shipment. The car was ordered August 10, and was spotted at plaintiff's siding on August 11. Loading was started on August 12, and completed on August 13, when it was delivered to defendants and started on its journey to Washington, D. C. The car was iced prior to the time it was spotted on the siding. It was again re-iced prior to its departure from St. Joseph. The highest temperature on August 11 was 87 degrees; on August 12, 92 degrees; and on August 13, 98 degrees. During the loading of the car plaintiff hung dry ice in each end of the car to keep the temperature down during the process of loading, and that the temperature reading of the car was always below forty degrees during loading time. The meat that went into the car was properly pre-cooled in the plant coolers. The meat was transported from the plant coolers about 150 feet across the street to be loaded in the car. Each piece was wrapped in a paper sack and cloth covering and conveyed in trucks covered with tarpaulin; that three or four men always accompanied each truck from the plant to the car; the doors of the car were opened only during the process of loading, and while it was being loaded plaintiff hung over the door opening on the inside a piece of split canvas to conserve the proper temperature; that the doors of the car were immediately closed after each truck load was emptied; the meat was placed in the car so as to insure proper circulation of air; after the car was loaded it was sealed by plaintiff's employees; the meat was in good merchantable condition at the time of delivery to defendants. There were approximately 2,400 pounds of ice in the car when plaintiff completed loading it. There was no contest over the questions that the meat arrived at Washington in a damaged condition, and the reasonable market value of the meat if the same had arrived in good condition, or the market value of the meat in its damaged condition as shown by plaintiff. When it arrived in Washington, it was refused by the consignee. On receiving notice of the refusal, plaintiff sent a representative by airplane to Washington. He testified that upon his arrival there he found that the bunkers of the car appeared to be full of ice, but when tested there was nothing but a thin crust of ice on top. Plaintiff had directed defendants to re-ice the car at St. Joseph, Missouri, prior to shipment, and at Blue Island, Illinois, and at Canton, Ohio.

Evidence on behalf of defendants was to the effect that the car was iced prior to the time it was spotted on plaintiff's siding; that it was re-iced prior to its departure from St. Joseph; that it was re-iced at Blue Island, Illinois; that it was re-iced at Columbus, Ohio, and that the car had approximately 4,900 pounds of ice in the bunkers when it arrived in Washington; that the bunkers were seven-eighths full; that it was customary for the Pennsylvania Railroad, a connecting carrier, to ship freight to Washington by way of Columbus rather than Canton, as directed by the shipper, and by so doing a better movement of freight was assured. Defendants offered evidence of refrigeration experts to the effect that under the conditions prevailing at the time the car was loaded the meat deteriorated because of inadequate icing, and that plaintiff should have requested further icing during the loading of the meat; and that the meat, once having begun to deteriorate, would continue to do so no matter how well it was iced thereafter; that the action of plaintiff in putting dry ice in the car during the process of loading was of no value in keeping the car temperature down. Defendants offered evidence to show that the car was properly handled and properly iced by defen...