Hansen v. Oregon-Washington R. & Nav. Co.

• Decision Date: 13 April 1920
• Citation: 97 Or. 190,188 P. 963
• Parties: HANSEN ET AL. v. OREGON-WASHINGTON R. & NAV. CO.
• Court: Oregon Supreme Court

188 P. 963

97 Or. 190

HANSEN ET AL. v. OREGON-WASHINGTON R. & NAV. CO.

Supreme Court of Oregon

April 13, 1920

Department 1.

Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.

Action by David Hansen and others, doing business as the D. Hansen Packing Company, against the Oregon-Washington Railroad &amp Navigation Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded for a new trial.

This is an action to recover damages on account of some cans containing salmon becoming rusty while in defendant's warehouse in Astoria, Or.

David Hansen and his wife, Mary Hansen, and his two daughters, Ivy and Lena, are partners doing business as D. Hansen Packing Company. The defendant, Oregon-Washington Railroad &amp Navigation Company, is a corporation. The partnership operated a salmon cannery at Point Ellis, a place on the Washington side of the Columbia river and across the stream from Astoria. The defendant owned and maintained a dock and warehouse at Astoria. This warehouse is a wooden structure built upon piling, and it stands over the water. It is about 60 feet in width and is 960 feet long.

During the fishing season of 1915 the partnership canned 9,339 cases of salmon. The fish was put up in hermetically sealed cans of two sizes, pounds and half pounds. A case consists of 48 cans, whether pounds or one-half pounds, packed in a box. The partnership used cans of the kind generally used by canneries on the river, and packed the cans in boxes made of kiln-dried spruce lumber, the kind usually employed for that purpose. After putting up the salmon in cans, the partnership packed the cans in boxes without first lacquering the cans or wrapping them with tissue paper, and then transported the 9,339 cases in boats across the river and delivered them to the defendant at its warehouse there to be stored.

These 9,339 cases were not delivered at one time, but they were delivered in 18 separate lots, ranging from 31 cases, the smallest, to 904, the largest lot, from time to time during the period beginning with May 27 and ending with December 7 1915, although the larger portion was delivered during the months of June and July. For each of the 18 lots received by the defendant it issued a warehouse receipt showing the number of cases received. These 18 lots were piled in the northeast corner of the warehouse, but each lot or "load that came in on the boats" was piled "in a little section by itself," with "alleyways" between the sections. Some of the salmon was withdrawn by the partnership from the warehouse prior to December 2, 1915. As already stated, when the cans were packed in the boxes at the partnership's cannery at Point Ellis, they were neither lacquered nor wrapped with tissue paper. On December 2, 1915 the partnership began the work of wrapping with tissue paper all the cans stored in the warehouse. This work was not completed until December 30. In order to do the work, it was necessary to remove the cans from the boxes, wrap them in tissue paper, and then repack them in the boxes. After tissue papering the cans and replacing them in the boxes, the plaintiffs did not repile them in 18 sections, as they were when the work of papering began, but, in the language of one witness, "There was a few small piles around, but they piled them mostly together when they * * * tissued them over," or, as testified by another witness, "They put it very much in one big pile; I think it was all in one big pile." The evidence is not very definite as to the height of this pile, although it does appear from the testimony of at least two witnesses that a person could not stand on the floor and count the cases. The pile was from 20 to 40 feet in width and about 80 feet in length.

In March, 1916, David Hansen went to the warehouse and got some samples to send to a buyer. He opened at least four and possibly six cases, and "took out some cans, and found them rusty all the way through." Some of them were rusted "pretty bad," and "others was not as bad." They were spotted all over, "sides, bottom and top." He said that he looked into the boxes, and, while he could not see any water, nevertheless, "they looked so they were damp and so was the paper;" and he also testified, "It showed streaks on the floor where the boxes being piled that water got down there somewhere, whether it was sweat or rain, or something." Lena Hansen corroborated her father, and said that she went to the warehouse about March, 1916, to get some samples to send to buyers, and she found the boxes "damp" and "wet," and the cans were rusted "on top," and "where the water had run down the sides."

In addition to the withdrawals already mentioned, the plaintiffs withdrew salmon from time to time until June 26, 1916, and on that date the partnership began the work of reconditioning the salmon which remained in storage. This work of reconditioning, which was begun on June 26 and completed on July 29, 1916, was made necessary by the rust which was found to to be on all the cans. The tins were removed from the boxes, sandpapered, lacquered, rewrapped with tissue paper, and then repacked in boxes. The plaintiffs brought this action on the theory that the defendant negligently permitted water to come in contact with the salmon while in the warehouse, and demanded a judgment against the defendant for $709.30, the cost of reconditioning the salmon which was in the warehouse on June 26, 1916, and for the further sum of $3,539.40 as general damages. The defendant denied the charge of negligence, and asserted that the rust was caused by sweat brought about by atmospheric conditions over which it had no control, and for which it was not liable. The answer also avers that the warehouse receipts had been negotiated by the plaintiffs to the Astoria National Bank, and that because of that fact the plaintiffs were not the owners of the salmon during the time it remained in storage with the defendant.

A trial resulted in a verdict and judgment for the plaintiffs, and the defendant appealed.

C. E. Cochran, of Portland (A. C. Spencer and W. A. Robbins, both of Portland, on the brief), for appellant.

G. C. Fulton, of Astoria (G. C. & A. C. Fulton and Edw. C. Judd, all of Astoria, on the brief), for respondents.

HARRIS, J. (after stating the facts as above).

In the complaint it is alleged that the salmon was "damaged and rendered less valuable to the extent of" $3,539.40 on account of the rust, which, the plaintiffs aver, was caused by the negligence of the defendant. David Hansen was the first witness called in behalf of plaintiffs, and, among other things, he testified on direct examination that he knew the market value of salmon in good condition in Astoria in March, 1916, and that it was $1.25 per dozen for half pounds and $1.90 per dozen for pound cans. This witness gave testimony, on his direct examination, to the effect that the reasonable and market value of the plaintiffs' salmon, after having been reconditioned, was $1.15 for the half pound and $1.75 per dozen for the pound cans. The cross-examination developed the fact that the plaintiff had, prior to December, 1915, entered into a written contract with Seaman Bros. of New York, for when asked, "Did you have those cases of salmon sold when you brought them over to Astoria?" he answered thus:

"I had them sold in a way, yes, when they were ready to take them. They were not ready to take them at the time, so I had to leave them there until they called for them, when they wanted them."

The record does not show with incontrovertible certainty the exact amount called for by the contract with Seaman Bros., although the evidence might fairly be said to support the inference that the contract covered all the salmon in storage on December 2, 1915, for on redirect examination David Hansen testified that "he had a contract for sale," and that he had sold the salmon to Seaman Bros. to be delivered "upon his request, whenever he wanted them." Again, when asked upon cross-examination why the cans were tissue-papered in December, he explained: "Because we wanted them ready for shipment. We didn't know--I didn't know what time he would call for them."

Upon redirect examination, after having stated that the plaintiffs "had contracted" to sell the salmon to Seaman Bros., David Hansen was asked, "What was your contract price?" Immediately the attorney for the defendant inquired whether the contract was in writing, and upon answering that it was, the witness explained that he did not have it with him, but stated that he would get it; but the writing was not produced, nor did the defendant renew its request for the production of the paper. The record shows that after both the plaintiffs and the defendant had rested, and before the delivery of the charge to the jury, the court's attention was called to the written contract with Seaman Bros., whereupon the court remarked that "it was not used as a basis for damages," and the court also added, "And I don't see that it could have been." The court instructed the jury that the plaintiff claimed that the market value of the salmon in the condition in which it was when stored was $1.25 per dozen for the half pound cans and $1.90 per dozen for the pound cans, and the court also told the jury that, if after the work of reconditioning was done the fair and reasonable value of such salmon was less than it was before this work was done, "then you should find how much less valuable it was, and award such sum to the plaintiffs." The defendant is not, as contended by plaintiffs, precluded from questioning the measure of damages adopted by the trial court, since the instructions to which attention has been directed were properly excepted to, and the objection was preserved by two distinct...