H. J. Keith Company v. Booth Fisheries Company

• Citation: 87 A. 715,27 Del. 218
• Court: Delaware Superior Court
• Decision Date: 03 June 1913
• Parties: H. J. KEITH COMPANY, a corporation existing under the laws of the State of Massachusetts, v. BOOTH FISHERIES COMPANY, a corporation existing under the laws of the State of Delaware

87 A. 715

27 Del. 218

H. J. KEITH COMPANY, a corporation existing under the laws of the State of Massachusetts, v. BOOTH FISHERIES COMPANY, a corporation existing under the laws of the State of Delaware

Superior Court of Delaware

June 3, 1913

SUMMONS CASE (No. 127, September Term, 1912) to recover damages alleged to have been sustained by the plaintiff on account of the negligence of the defendant in failing to keep in good and proper condition in the defendant's cold storage warehouse a large quantity of frozen egg product, the property of the plaintiff.

See on demurrer to declaration, ante, also 86 A. 166.

PLAINTIFF'S PRAYERS.

"If a person receives property as a bailee and such property is damaged or injured while in his possession and while in the exercise of ordinary and reasonable care, he is not liable for such damage or injury; but if it be occasioned by the negligent conduct or carelessness of the bailee, his servant or agent, he is liable for such damage or injury.

"Ordinarily negligence is never to be presumed but must be proved like any other substantive fact and the burden of proof is upon the plaintiff. But where the property is damaged or injured whilst in the exclusive custody of a bailee, his servant or agent, it is incumbent upon the bailee to satisfy the jury that the injury was not occasioned by the negligence of himself or his servants or agents." Per Boyce, J., in Pusey v. Webb, 2 Penn. 490, 47 A. 701. See, also Weber v. Vernon, 2 Penn. 359, 45 A. 537; Bowen v. Insenberg, 6 Penn. 230, 67 A. 152.

If you find that the defendant through its negligent conduct or carelessness damaged the frozen eggs of the plaintiff, the measure of damages which the plaintiff can recover is the difference between the market value of the eggs at the time when the bailment was ended, which was in October, 1910, and the market value of eggs in their damaged condition at that time, with interest. Vaughan et al. v. Webster, 5 Harr. 256.

"The measure of damages is the value of the property at the time of its conversion, with interest." Holt v. Jordan Co., 25 Ind.App. 314, 57 N.E. 575; Gutschneider v Pirosnick (Sup.) 123 N.Y.S. 190; Chaityn v. Stock (Sup.) 120 N.Y.S. 89; Hyde v. Mec. Ref. Co., 144 Mass. 432, 11 N.E. 673; Motley v. Warehouse Co., 122 N.C. 347, 30 S.E. 3; Dale v. See, 51 N. J. Law, 378, 18 A. 306, 5 L. R. A. 583, 14 Am. St. Rep. 688.

" * * * The general rule, supported by the great weight of authority is that in cases of torts to property, interest on the damages may be allowed, as a part of the damages and as approximately uniform measure of compensation." 22 Cyc 1501.

"Where, however, although a demand is unliquidated, the amount thereof can be readily ascertained by mere computation, interest thereon will be allowed." 22 Cyc. 1513.

"Even though a demand be not specifically pecuniary, so as to be accurately ascertainable by mere computation, yet if, by reference to established market values, the amount due may be approximately ascertained, interest will be allowed as upon a liquidated demand." 22 Cyc. 1514.

"It is well settled that the measure of the damages for the loss of the goods by the carrier, when he is liable for such loss, is generally the value of the goods at the destination at which he agreed to carry them, with interest on such value from the time when the goods should have been delivered. * * * " Hutchinson on Carriers (3d Ed.) p. 1610.

If you find that the defendant by its negligent conduct or its carelessness damaged the frozen eggs of the plaintiff, it cannot collect any storage charges for keeping the eggs and the amount allowed to the plaintiff for its damages is not to be diminished by any sum the defendant claims for storage. Sedgwick on Damages (8th Ed.) § 317, p. 463.

"But if the bailee is at fault he can recover nothing for his work or services and is liable to an action for damages." Browne on Bailments, p. 59.

"Where perishable goods are rendered worthless by the failure of a storage company to keep the proper temperature, it is not entitled to storage." Van Zile on Bailments, § 143; Story on Bailments, § 420; Williston's Wald's Pollock on Contracts, note p. 324; 30 Am. & Eng. Ency. (3d Ed.) 62.

"The testimony on behalf of the defendant, however, we think, clearly warranted the justice in finding as he did, that the fruit was to be taken and stored at a temperature ranging from thirty-five to forty, and by failing to do this, but placing it at a temperature which caused the fruit to freeze and thus ruining it, the appellant failed to perform its contract and consequently failed to earn any storage whatever." Greenwich Warehouse Co. v. Maxfield, 8 Misc. 308, 28 N.Y.S. 732.

The defendant in any event was not entitled to collect storage charges after the alleged damage occurred, and after they were notified that the plaintiff would claim damages and as they have not separated their storage charges before and after that date, you cannot allow them anything for storage.

DEFENDANT'S PRAYERS.

1. That as plaintiff has filed its declaration in case, alleging a breach of defendant's duty toward plaintiff, and plaintiff's proofs tend to prove a breach of a special contract, the verdict must be for the defendant.

2. That as plaintiff has sued defendant in tort and has proved a case in contract, the verdict must be for the defendant.

3. That in order for the plaintiff to recover in an action for the failure of the defendant to perform its duty arising out of an express contract, it is necessary to allege the terms of the contract, and the plaintiff having failed to make such allegations, and having offered evidence tending to prove the breach of a special contract, the verdict must be for the defendant.

But if the court should decline to instruct the jury according to the foregoing prayers, then the defendant prays the court to charge the jury as follows:

(a) That if they believe the eggs shipped by the plaintiff, or its agent, to the defendant, to be stored and cared for by the said defendant in its cold storage plant, were impure, imperfect and had deteriorated before they were received by the defendant, then their verdict should be for the defendant.

(b) That in the investigation of the facts in this case they must consider the condition of the eggs when they were accepted by the defendant, for, if they were not in good condition, and properly put up for a long term storage when delivered to the defendant, said defendant is not responsible for any loss which resulted from depreciation in value in consequence of the imperfect character of the eggs or for want of their proper preparation for storage. Reed and Walker v. P., W. & B. R. R. Co., 3 Houst. 176, 213.

(c) That at the time plaintiff stored the eggs, in controversy in this case, with defendant, and during all the time such eggs remained in storage with defendant until their final disposition, there was in effect in Illinois a law (Laws 1907, p. 481) which provided as follows:

"A warehouse man 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; but he shall not be liable, in the absence of an agreement to the contrary, for any loss or injury to the goods which could not have been avoided by the exercise of such care."

You are, therefore, instructed that if you believe from all the evidence in this case that defendant exercised in the storage and handling of the goods in controversy, such care in regard to them as a reasonably careful owner of similar goods would have exercised, then there is no liability in this case on the part of the defendant to plaintiff, and your verdict should be for the defendant.

Verdict for plaintiff.

William S. Hilles and Francis E. Neagle (of the New York bar) for the plaintiff.

J. Harvey Whiteman, Clifford Mannering and J. Sidney Condit (of the Chicago bar) for the defendant.

PENNEWILL, C. J., and WOOLLEY and RICE, J. J., sitting.

OPINION

PENNEWILL, C. J., charging the jury:

Gentlemen of the jury:--The present action was brought by the plaintiff, the H. J. Keith Company, against the defendant, the Booth Fisheries Company, for damages alleged to have been sustained by the plaintiff on account of the negligence of the defendant in failing to keep in good and proper condition a large quantity of frozen egg product, the property of the plaintiff, in the defendant's cold storage warehouse in Chicago in the years 1909 and 1910.

The plaintiff's claim for damages is two thousand, three hundred and eighty-seven dollars and ninety-nine cents. with interest thereon from October 1, 1910. The said claim is based upon the loss of thirteen thousand, nine hundred and thirty pounds of whites at twenty cents per pound, and four thousand, three hundred and fifty pounds of yolks at nineteen cents per pound, aggregating the sum of three thousand six hundred and twelve dollars and twenty cents, from which is deducted one thousand two hundred and twenty-four dollars and twenty-one cents, the amount received from the defendant for the six hundred and thirteen cans left in its warehouse and sold by the defendant with the plaintiff's consent.

The declaration filed in the case consists of three counts, the first of which avers, that the plaintiff between August 25 1909, and August 30, 1910, delivered to the defendant certain cans of frozen eggs, whites and yolks, the property of the plaintiff, to be stored in the defendant's warehouse for a certain reward until called for by the plaintiff, which the defendant knew required to be kept frozen in its warehouse, and the defendant received the said goods for that purpose; that it was the duty of the defendant...