Fruit Supply Co. v. Chicago, B. & Q. R. Co.
| Decision Date | 04 October 1938 |
| Docket Number | No. 24524.,24524. |
| Court | Missouri Court of Appeals |
| Parties | FRUIT SUPPLY CO. v. CHICAGO, B. & Q. R. CO. |
Appeal from St. Louis Circuit Court; Frank C. O'Malley, Judge.
"Not to be published in State Reports."
Action by Fruit Supply Company against Chicago, Burlington & Quincy Railroad Company, for damages to a shipment of potatoes while in transit. From judgment for defendant, plaintiff appeals.
Affirmed.
I. H. & J. F. Gamble, of St. Louis, for appellant.
H. J. Nelson, of St. Joseph, and Douglas W. Robert, of St. Louis, for respondent.
SUTTON, Commissioner.
This is an action for damages to a shipment of potatoes while in transit from Kansas City to St. Louis.
The cause was tried to the court without a jury. There was a finding and judgment for defendant, and plaintiff appeals.
At the conclusion of plaintiff's evidence, on June 11, 1936, the defendant requested the court to give the following declaration of law:
"The Court declares the law to be that under the pleadings and the evidence, the plaintiff is not entitled to recover."
Thereupon, the cause was argued and submitted by the parties and taken under advisement.
On July 6th, the court signed and filed a memorandum as follows: "Finding and judgment in favor of the defendant." And also marked "given," and signed the declaration of law requested by defendant.
Plaintiff assigns error here for the giving of said declaration of law.
Fred C. Winkler, a salesman and buyer of fruits and vegetables for plaintiff, testified, for plaintiff, that the shipment of potatoes arrived at St. Louis on October 4, 1926; that he found a leaking roof and fifty-nine sacks of potatoes wet; that he sold these fifty-nine sacks in the shape they were in on the open market at $1.15 per hundred; that he fixed the price on them; that he did not know what they should have brought on the market if they had been in good condition; that he did not know to whom he sold them; that he sold them to a peddler; that there were 294 sacks of potatoes in the shipment; that only fifty-nine sacks were wet; that the others were perfectly dry; that the potatoes in the fifty-nine sacks were not decayed and were not damaged in the slightest degree other than they were wet and smeary from dirt; that they were perfectly good potatoes if they were washed; that he sold all the potatoes the day they arrived; that he paid three dollars per hundred for the potatoes in Kansas City; that he sold the dry potatoes for $2.75 per hundred, which was the market price; that there was a loss of twenty-five cents per hundred on the dry potatoes. There was no evidence as to what it would have cost to wash and dry the wet potatoes, which as testified by the witness, were sold in their wet condition at a price per hundred less than half that obtained for the dry potatoes. Nor did any witness testify as to the market price of the wet potatoes or as to what they would have brought on the market upon reasonable efforts being made to find a purchaser who would give the highest price for them.
Plaintiff produced evidence tending to show that the potatoes were in good condition when delivered to defendant.
Formerly a peremptory declaration of law given in a case tried to the court without a jury to the effect that under the pleadings and the evidence the judgment must be for the defendant was not regarded as a declaration in the nature of a demurrer to the evidence. Kurre v. American Indemnity Co., 223 Mo.App., 406, 17 S.W.2d 685; Heynbrock v. Hormann, 256 Mo. 21, 164 S.W. 547; Stone v. Spencer, 77 Mo. 356....
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