H. A. Johnson & Company v. Springfield Ice & Refrigerating Company

• Decision Date: 04 April 1910
• Parties: H. A. JOHNSON & COMPANY, Respondent, v. SPRINGFIELD ICE & REFRIGERATING COMPANY, Appellant
• Court: Missouri Court of Appeals

127 S.W. 692

143 Mo.App. 441

H. A. JOHNSON & COMPANY, Respondent, v. SPRINGFIELD ICE & REFRIGERATING COMPANY, Appellant

Court of Appeals of Missouri, Springfield

April 4, 1910

Appeal from Laclede Circuit Court.--Hon. L. B. Woodside, Judge.

AFFIRMED.

Judgment affirmed.

Horine & Delaney for appellant.

(1) The court erred in admitting evidence of the price paid by plaintiff for the property in question. This is not proper evidence of damage. Miller v. Bryden, 34 Mo.App 602; St. Louis Range Co. v. Kline-Drummond Co., 120 Mo.App. 438. (2) The court erred in admitting in evidence the alleged conversations with defendant's servant, Grant Trammel, touching the value and character of the goods bailed, and referring to the storm, and safety of said goods. Redmon v. Railway, 185 Mo. 1; Wright Inv. Co. v Fillingham, 85 Mo.App. 534; Helm v. Railway, 98 Mo.App. 419; Fowler v. Randall, 99 Mo.App. 407; Kyle v. Gaff, 105 Mo.App. 672. (3) It having been shown that the injury resulted from an act of God, by the plaintiff's own evidence, the defendant is excused unless plaintiff further shows that the defendant was guilty of negligence proximately contributing to the loss. Davis v Railroad, 8 Mo. 340; Turner v. Haar, 114 Mo. 347; Milling Co. v. Lime Co., 122 Mo. 258; Reeves v. Railroad, 10 Wall. 189; Lancaster Mills v. Merchants Co., 89 Tenn. 1; Willing v. Railroad, 101 Mo. 631; Cummings v. Mastin, 43 Mo.App. 558; McCarthy v. Wolfe, 40 Mo. 520; Gashweiler v. Railroad, 83 Mo. 112; Buddy v. Railroad, 20 Mo.App. 206; O'Malley v. Railroad, 113 Mo. 319; Stoher v. Railroad, 105 Mo. 192; McPherson v. Railroad, 97 Mo. 253; Otis v. Railroad, 112 Mo. 622; Henry v. Railroad, 76 Mo. 294; Sullivan v. Railroad, 133 Mo. 1; Brewing Ass'n v. Talbot, 141 Mo. 674; Frichs v. St. Louis, 167 Mo. 650; Dean v. Railroad, 199 Mo. 408. (4) Mischief which could by no reasonable possibility have been foreseen, and which no reasonable person would have anticipated, cannot be taken into account as a basis upon which to predicate a wrong. Brewing Assn. v. Talbot, 141 Mo. 674; Feddeck v. Car Co., 125 Mo.App. 32; Aldrich v. Transit Co., 101 Mo.App. 90; Strode v. Box Co., 124 Mo.App. 524; Goodrich v. Railroad, 152 Mo. 222; Warehouse v. Railroad, 124 Mo. 557; Grier v. Railway, 108 Mo.App. 564; Moffat Com. Co. v. Railway, 113 Mo.App. 544; Loehring v. Construction Co., 118 Mo.App. 177; Leitner v. Grieb, 104 Mo.App. 173; Anderson v. Forrester, 103 Mo.App. 382; Hysel v. Swift & Co., 78 Mo.App. 39; Foley v. McMahon, 114 Mo.App. 442; Young v. Railroad, 93 Mo.App. 275.

Barbour & McDavid and Woodruff & Mann for respondent.

(1) If it was error to permit plaintiff to state in his deposition the price he paid for the eggs, it is not reversible because it did not materially affect the merits of the case. R. S. 1899, sec. 865; Wilkinson v. Ins. Co., 54 Mo.App. 661; Gardner v. Railway, 135 Mo. 90; Goodrich v. Harrison, 130 Mo. 263; Woody v. Railroad, 104 Mo.App. 678. (2) Declarations made by an officer, agent or employee, and made during the transactions for which he is employed, for his principal and connected therewith, are admissible. Investment Co. v. Fillingham, 85 Mo.App. 534; Helm v. Railway, 98 Mo.App. 419. (3) The principal is charged with the information of his agent; and whether the agent discloses same or not, he is conclusively presumed to have done so. Fowler v. Randall, 90 Mo.App. 407; Meachem on Agency, sec. 721; State ex rel. v. Sittlington, 51 Mo.App. 252; Kyle v. Gaff, 105 Mo.App. 672. (4) A defendant cannot escape the consequences of its negligence, because the flood was the act of God. Prince v. Compress Co., 112 Mo.App. 49; Davis v. Railway, 89 Mo. 340; Pinkerton v. Railway, 117 Mo.App. 288; Smith v. Fordyce, 190 Mo. 21; Newcome v. Railroad, 169 Mo. 422; Warehouse Co. v. Railway, 124 Mo.App. 560; Brash v. St. Louis, 161 Mo. 438; Lamar Mfg. Co. v. Railroad, 117 Mo.App. 459; Wolf v. Express Co., 43 Mo. 421; Grier v. Railroad, 108 Mo.App. 565; Harrison v. Light Co., 195 Mo. 622; Hoepper v. Hotel Co., 142 Mo. 388.

OPINION

NIXON, P. J.

This cause was instituted in the circuit court of Greene county, Missouri, and through changes of venue reached the circuit court of Laclede county where it was tried at the February term, 1908.

The plaintiff was a firm composed of H. A. Johnson of Boston, Massachusetts, a commission merchant. The defendant is a corporation with its chief place of business at Springfield, Missouri, and was at the time of the institution of this suit engaged, among other things, in the warehouse business, receiving goods for storage for safe keeping.

The Springfield Crystallized Egg Company was a corporation, engaged in manufacturing from eggs a food product called crystallized eggs, which when manufactured and ready for the market, was put up in ordinary flour barrels, and encased in oil paper to protect it from the dust. When the product was so barreled, the barrels were numbered with the current number and labeled with two labels, one with the name of the product, stating that it was manufactured by the Crystallized Egg Company, and another label bearing the word "Caution" in large red letters, and below it, "This package must be kept covered in a cool, dry place." The thirty barrels of this product involved in this suit bore this label. The destruction of this product by an unprecedented flood in the city of Springfield on July 26, 1905, forms the basis of this action.

In October, 1904, the Crystallized Egg Company sold to the plaintiff, H. A. Johnson & Company, fifty barrels of this product which included the thirty barrels involved in this litigation. At the time of the sale, these goods were in the warehouse of the factory of the Springfield Crystallized Egg Company, and were then sent to the defendant's warehouse for storage in the same city. They were taken to the defendant's warehouse by the regular drayman of the Egg Company, George Williams. There was present at the warehouse when the goods were delivered one W. N. Seymour, superintendent of the Egg Company, and when they arrived they were received by Grant Trammel and a warehouse receipt to the Springfield Crystallized Egg Company was issued for them. This receipt was assigned by the Egg Company to the plaintiff and mailed to him with an invoice of the fifty barrels. The bill of the goods sent by the Egg Company to the plaintiff with the receipt gave the numbers of each of the fifty barrels so sold and stored, being from number 7820 to number 7831, inclusive, and beginning again with number 7856 and running to number 7893, inclusive. The conditions appearing in the warehouse receipt are as follows:

"It is agreed that all loss or damage to property occasioned by fire, water, leakage, vermin, ratage, breakage, accidental or providential causes, riot or insurrection, or to perishable property, is at owner's risk."

These goods when first taken to defendant's warehouse for storage, were stored in cold storage on one of its upper floors, but later they with goods of like character belonging to the Egg Company were moved to the basement of said warehouse and there stored.

The testimony for the plaintiff shows that the receipt for the eggs was forwarded by plaintiff to the defendant on October 18, 1904, referred to as warehouse receipt No. 73, covering fifty barrels of eggs stored by the Springfield Crystallized Egg Company, and asking the defendant to ship one barrel to George H. Perry & Co., Rochester, New York, and to send number and weight so that plaintiff might bill it to the customer. The letter of the defendant returning this receipt stated that the number of the barrel shipped to Perry & Co. was indorsed thereon. On October 26th, the shipment of this barrel was indorsed on the back of this warehouse receipt as barrel No. 7893. In November, plaintiff again sent the receipt to the defendant who shipped one barrel and indorsed on the back of the warehouse receipt that it was barrel No. 7865. In December, a similar occurrence took place and on the back of the warehouse receipt, the defendant indorsed that the barrel shipped was No. 7872. In March, 1905, plaintiff ordered shipped to him direct, seventeen barrels, and on the back of the warehouse receipt was indorsed the shipment of the seventeen barrels; being shipped direct to plaintiff himself, the numbers of these barrels were not indorsed on the back of the warehouse receipt. These several shipments, amounting to twenty barrels, left the thirty barrels in the warehouse which are concerned in this action, where they remained until the disastrous flood on the 26th day of July, 1905.

W. N. Seymour, superintendent of the Egg Company, stated that he could identify the barrels stored for plaintiff by their numbers. He said that he saw those barrels in the basement at the time of the flood, July 26, 1905, and recognized them as the goods they had sold to H. A. Johnson & Company and stored with the defendant for Johnson; that they were located on the east side of the basement, the farthest lot to the north, and that they were separated from the other eggs stored in the basement by a space of about eighteen inches; that Grant Trammel pointed out these eggs to him the next morning and Grant Trammel was then there in charge of the warehouse. This witness also stated that when these goods were stored, they were received by Grant Trammel who delivered a warehouse receipt for them and who was there acting for the defendant, and who usually had charge of that portion of defendant's business.

Trammel testified that he was "a kind of a foreman there under Mr. Meyer." That he was a foreman over the men in the daytime and kept account of the things going out and coming in, and gave dray tickets for them; that when things went out, they were...