Federal Cold Storage Co. v. Pupillo

• Decision Date: 07 May 1940
• Docket Number: 36025
• Citation: 139 S.W.2d 996,346 Mo. 136
• Parties: Federal Cold Storage Company, Appellant, v. Anthony Pupillo, Doing Business as Pupillo Fruit Company
• Court: Missouri Supreme Court

139 S.W.2d 996

346 Mo. 136

Federal Cold Storage Company, Appellant, v. Anthony Pupillo, Doing Business as Pupillo Fruit Company

No. 36025

Supreme Court of Missouri

May 7, 1940

Motion for Rehearing Overruled May 7, 1940.

Appeal from Circuit Court of City of St. Louis; Hon. Ernest F Oakley, Judge. Opinion filed at September Term, 1939 March 6, 1940; motion for rehearing filed; motion overruled at May Term, 1940, May 7, 1940.

Reversed and remanded (with directions).

Edwin A. Smith for appellant.

(1) The court erred in overruling plaintiff's demurrer to defendant's amended answer and counterclaims, for the reason set out in said demurrer, namely, that each and every count thereof, to-wit, counts 1 to 8, both inclusive, did not state facts sufficient to constitute a cause of action against this plaintiff. Ducker v. Barnett & Sheofe, 5 Mo. 97; Holtzclaw v. Duff, 27 Mo. 392; State to Use of Hubbard & Moffitt C. Co. v. Cochrane, 264 Mo 590; Berger v. St. Louis Storage & Comm., Co., 136 Mo.App. 36. (2) The defendant did not make out a prima facie or submissible case. In other words, there was no competent and substantial evidence before the court to sustain or prove the allegations of negligence set out in the various counts of defendant's amended answer and counterclaims. It might be stated here, parenthetically, defendant dismissed as to counterclaim 7 at the close of the whole case and the jury "disallowed" his eighth counterclaim, from which he did not file a motion for a new trial or appeal. Therefore the only counterclaims material at this time are 1 to 6, both inclusive. Furthermore, as pointed out under Point 1 herein, said allegations of negligence and evidence allegedly in support thereof were not negligence at all. They would have required of the plaintiff a physical impossibility. They were contrary to plaintiff's statutory duty. Amer. Brewing Assn. v. Talbot, 141 Mo. 682; Springfield Crystallized Egg Co. v. Springfield I. & R. Co., 259 Mo. 693. (a) There was no competent evidence before the court as to the selling price or the alleged reasonable market value of the grapes sold in Chicago, Illinois; Cleveland, Ohio; New York, New York; Pittsburgh, Pennsylvania. Furthermore the alleged selling prices of the grapes in these respective cities was not the proper measure of damages. Belle Springs Creamery Co. v. Schultz, 69 S.W.2d 567; Russell & Moffett v. Empire Storage & I. Co., 332 Mo. 726; Springfield Crystallized Egg Co., v. Springfield I. & R. Co., 259 Mo. 688; Prince & Co., v. St. L. Cotton Compress Co., 112 Mo.App. 65. (3) The court erred in admitting incompetent, irrelevant and immaterial evidence offered by the defendant, particularly all of his exhibits and evidence allegedly in support thereof, and each and every deposition taken by the defendant and offered in evidence, for the reason they contain incompetent, irrelevant and immaterial evidence. Mourer v. Wabash Ry. Co., 280 S.W. 1051; Jungkind Photo S. Co. v. Yates, 257 S.W. 820; Sonnenfeld v. Rosenthal, 152 S.W. 327; Doherty v. Doherty, 155 Mo.App. 481; Barrie v. United Rys. Co., 102 S.W. 1085.

Joseph P. Waddock and Roessel & Minton for respondent.

(1) The counterclaim states a cause of action. The evidence to sustain defendant's counterclaim was ample and sufficient for submission to the jury. (2) A warehouseman shall be liable for any loss or injury to the goods caused by his failure to exercise such care in regard to them as a reasonably careful owner of similar goods would exercise. R. S. 1929, sec. 14394; 27 R. C. L. 991; 55 A. L. R. 1104; Nix & Co. v. Herbert, 149 Va. 131, 55 A. L. R. 1098; Hugo Ice & Light Co. v. Richardson, 87 Okla. 89. (3) The measure of a bailor's damage is whatever it will take to place him in as good condition as he would have been in had the contract been fulfilled. The value should be fixed at the time the loss culminates. Flori v. St. Louis, 69 Mo. 341, 33 Amer. Rep. 504; Forney v. Geldmacher, 75 Mo. 113, 42 Amer. Rep. 388; Carter v. Wabash Ry. Co., 128 Mo.App. 57; Warehouse v. Toomey, 144 Mo.App. 516; Holt Ice Co. v. Jordan, 25 Ind.App. 323; 27 R. C. L. 1004; 17 C. J. 728, 844, secs. 69, 166; Johnson v. Marks, 121 N.Y.S. 294; The A. A. Raven, 222 F. 958. (4) Demonstrative evidence is proper and its admission rests largely in the sound discretion of the trial court. Carlson v. Transit Co., 282 S.W. 1037; Williamson v. Fischer, 50 Mo. 198; 22 C. J. 910, sec. 1114. Qualifications of one expressing an opinion are for the sound discretion of the trial court. There was no abuse of this discretion with respect to admitting the testimony of the witnesses Pierce and Ramsay. Adams v. Ry. Co., 287 Mo. 535. The general rule excludes evidence of independent occurrences, which are not directly connected with the matter in dispute. Admission or exclusion of testimony of a collateral matter between strangers is left to the judicial discretion of the court. Jewell Filter Co. v. Kirk, 200 Ill. 382; Lake Superior Co. v. Huttig, 264 S.W. 399; Osbourne v. Eyster, 192 S.W. 143; Black v. Ry. Co., 162 Mo.App. 99; Robinson Lbr. Co. v. Lansdell, 215 Mo.App. 357. (5) The court has a right to amend a jury's verdict after its discharge in matters pertaining to clerical errors made manifest by the record. Priest v. Deaver, 22 Mo.App. 276; Powell v. Bierman, 22 S.W.2d 854.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

Plaintiff sued in separate counts to recover on six promissory notes payable on demand, and, on a 7th count, sought recovery on an account. The notes were executed November 1, 1935, and were for $ 729 each, and bore interest at 6% prior to demand, and 8% thereafter. The account was in the sum of $ 1456.02, and was for storage charges, insurance, etc. Defendant answered by a general denial, and a separate counterclaim to each count of the petition. Defendant stored seven carloads of grapes with plaintiff and borrowed money thereon. Seven of the counterclaims are based on damage to the grapes alleged to have been caused by plaintiff's negligence, and the 8th counterclaim was based on an alleged conversion of apples belonging to defendant and stored with plaintiff. So far as pertinent here, the reply was a general denial, and a plea that whatever loss defendant sustained "was entirely due to his own negligence, in that he knew, or by the exercise of ordinary care and reasonable diligence and inquiry could have ascertained, that the 1935 crop of California Emperor grapes was not a good crop for storing in cold storage, especially the length of time he kept said grapes in cold storage, for the reason that said crop of California grapes was damaged by rain and early frost before it was harvested, thereby greatly impairing the keeping quality of said crop. Furthermore, defendant was contributorily negligent, in that he failed and neglected to sell said grapes at the proper time, to-wit, during November and December, 1935, particularly after his attention was called to them by the plaintiff on many occasions orally and by letters and special inspection reports."

At the close of the whole case defendant dismissed as to the 7th counterclaim. The jury found for plaintiff on each count of the petition, and in the total sum of $ 5909.26, and for plaintiff on defendant's 8th counterclaim, and found for defendant on each of the first six counterclaims, and in the total sum of $ 7559.79. Judgment, at first, was entered against plaintiff and in favor of defendant for $ 1650.53, the difference between the respective total findings for plaintiff and defendant. The verdict was returned May 14, 1937, and on May 17, three days later, defendant filed motion "to modify and amend" the judgment by deducting $ 1608.91 from the total finding for plaintiff. The motion to modify was sustained on the day filed and a final judgment was entered against plaintiff for $ 3259.44, and this appeal followed.

The appeal was granted to the St. Louis Court of Appeals, and on motion, in that court, by defendant, the cause was transferred to this court. Plaintiff filed motion here to transfer back to the Court of Appeals, which motion was overruled. Plaintiff appealed, therefore, the amount in dispute is the total finding ($ 7559.79) in favor of defendant on his counterclaims. In the situation, jurisdiction of the appeal is clearly in this court (Const., Art. 6, Sec. 12; Sec. 3, Amendment 1884; Sec. 1914, R. S. 1929, Mo. Stat. Ann., p. 2587).

Plaintiff, appellant here, assigns error (1) on overruling its demurrer to the counterclaims; (2) on the refusal, at the close of the whole case, of a demurrer to the evidence offered in support of the counterclaims; (3) on the admission and exclusion of evidence; (4) on the instructions; (5) on the modification of the judgment; and (6) on the court's action in permitting certain exhibits to be sent to the jury after deliberation commenced.

In four of the counterclaims, dealing with four carloads of these grapes, loaded by plaintiff from its storage warehouse for delivery back to defendant, and shipped, one car each, to Chicago, Cleveland, Pittsburgh, and New York, defendant pleaded three separate acts of negligence, viz.: (1) That plaintiff "negligently and carelessly failed to store said grapes in a room, the temperature of which was continuously maintained at a suitable degree for the preservation of said grapes in a sound and merchantable condition;" (2) that plaintiff "carelessly and negligently stored said grapes in a room, the temperature of which was permitted to fluctuate and remain for long periods of time at a temperature unsuited to the preservation of grapes in good, sound and merchantable condition;" and (3) that plaintiff negligently and carelessly failed "to properly strip the containers of said grapes...