Interstate Compress Co. v. Agnew

• Decision Date: 07 October 1921
• Docket Number: 5634.
• Citation: 276 F. 882
• Parties: INTERSTATE COMPRESS CO. v. AGNEW.
• Court: U.S. Court of Appeals — Eighth Circuit

276 F. 882

INTERSTATE COMPRESS CO. v. AGNEW.

No. 5634.

United States Court of Appeals, Eighth Circuit.

October 7, 1921

James R. Keaton, of Oklahoma City, Okl. (Frank Wells and David I Johnston, both of Oklahoma City, Okl., on the brief), for plaintiff in error.

Everett Petry, of Tulsa, Okl., for defendant in error.

Before SANBORN and CARLAND, Circuit Judges, and MUNGER, District judge.

SANBORN Circuit Judge.

This is an action by J. W. Agnew to recover of Interstate Compress Company, a corporation, damages which he alleges were inflicted upon him by the gross negligence of the defendant in providing equipment for its compress platform and plant and in maintaining in efficient condition such equipment to prevent fire, which, on November 16, 1916, destroyed a large part of its plant and 294 bales of the plaintiff's cotton, which was on the defendant's compress platform. The parties stipulated to the effect that if the defendant's gross negligence was the proximate cause of the loss of this cotton the plaintiff would be entitled to recover $17,485.66, and at the close of the trial the jury returned a verdict for the plaintiff for that amount and interest.

At the time of the fire the plaintiff's cotton was held by the defendant as its bailee, on its compress platform, under contracts which provided that it was 'not responsible for loss by damage, fire flood, or other agencies, unless caused by the willful act or gross negligence of this company. ' At a former trial the court below held that the defendant could not limit its liability in this way by agreement, but this court was of the opinion that the contract was legal and valid, and a new trial was directed. Interstate Compress Co. v. Agnew, 255 F. 508, 168 C.C.A. 199.

The chief complaints of this new trial are: (1) The admission of incompetent evidence; (2) the charge of the court that, if the jury should find that the defendant was guilty of gross negligence in providing the equipment of its compress platform and plant, they might return a verdict for the plaintiff; and (3) that it denied the request of the defendant that it direct the jury to return a verdict in its favor.

The origin of the fire was unknown. It was first discovered by the defendant's night watchman about 6 o'clock in the afternoon. He immediately called his helpers, went to one of defendant's hydrants on the main which led from the water system of the city of Altus the source of the water used by the defendant for protection, attached 100 feet of hose to this hydrant which reached to within about 10 feet of the fire, and turned the water on, but the stream was so weak that it did not reach the fire. If the stream had been such as a pressure of 60 pounds to the square inch ordinarily produced, he could then have extinguished the fire. He immediately attached hose to and turned the water on to a second hydrant near the fire, but it produced nothing but air. By this time the fire had so increased that he could not have extinguished it if a hydrant had produced a powerful stream.

It was one of the theories of the plaintiff that the reason why these hydrants failed to produce forcible streams was that the city water used contained much sediment, that this sediment had clogged the hydrants or the mains of the compress company by reason of the gross negligence of the defendant in failing properly to open and flush the hydrants. In its endeavor to establish this theory the plaintiff's counsel called a witness to testify that he was a plumber and had lived in Altus 6 1/2 years, that the source of the water supply of that city was surface water which drained into a lake whence the city took its water. After this testimony had been received the plaintiff's counsel asked this witness what the condition of that water was as to mud or silt in it. Defendant's counsel objected to the question on the grounds that no proper foundation had been laid for an answer to it; that no showing had been made that the witness was qualified to make an analysis of the water to determine the percentage of sediment it contained; that the witness showed that he had the analysis made and did not make it himself; that he did not show that it was made by anybody that was qualified to determine the fact; and that the answer was incompetent and hearsay. The court overruled these objections, the defendant excepted, and the witness answered, 'Well, it had 106 pounds of mud to the 1,000 gallons, according to the analysis I had made of it. ' Counsel for the plaintiff, in his argument in this court, gives weight to this answer as he probably did before the jury. The answer was prejudicial to the defendant, was bald hearsay, clearly incompetent, and its receipt was error.

Another specification of error is that the court charged the jury that they might return a verdict for the plaintiff if they found from the evidence that the defendant was guilty of gross negligence in providing its equipment for preventing loss by fire of cotton on its compress platform and in connecting that equipment with the water system of the city when the fact was that no substantial evidence of such neglect had been introduced. When the court charged the jury these facts relative to this specification had been established by uncontradicted evidence. At the time of this fire the defendant had a plant, consisting of furnaces, boilers, presses, and other machinery for receiving, storing, and compressing cotton, surrounded by several acres of platforms for storing and keeping cotton in the southwestern portion of the city of Altus, and it was engaged in operating this plant and using this platform, on which there were about 9,000 bales of cotton. The city of Altus had provided and used for several years, to protect itself and its citizens from fire and for other purposes, a city water system consisting of a standpipe, pumps, and mains which were connected with a lake that was supplied with water by surface drainage from the higher grounds surrounding it. This system was capable of producing a pressure of 60 pounds to the square inch and of throwing a stream of...