Laurence L. Prince & Co. v. St. Louis Cotton Compress Co.

• Decision Date: 18 April 1905
• Citation: 112 Mo. App. 49,86 S.W. 873
• Court: Missouri Court of Appeals
• Parties: LAURENCE L. PRINCE & CO. v. ST. LOUIS COTTON COMPRESS CO.<SMALL><SUP>*</SUP></SMALL>

86 S.W. 873

112 Mo. App. 49

LAURENCE L. PRINCE & CO. v. ST. LOUIS COTTON COMPRESS CO.^*

St. Louis Court of Appeals. Missouri.

April 18, 1905.

WAREHOUSEMEN — NEGLIGENCE—FLOODS—DUTY TO REMOVE GOODS—DAMAGES—TRIAL—INSTRUCTIONS—BURDEN OF PROOF.

1. A warehouseman whose warehouse is situated in close proximity to a river, and who has received warning that the warehouse is in danger of being flooded, and that the dike protecting the same is liable to break at any hour, is bound to exercise ordinary care and diligence to remove goods stored in the warehouse to a place of safety, and, if he fails to do so, he is liable for damages caused by the flood, although he has nothing to do with the dike, and is under no duty of repairing the same so as to prevent the overflow of the river.

2. In an action for damage, caused by a flood, to cotton stored in a warehouse, where no demand for the cotton was made on the day of the flood when the damage was caused, the measure of damages was the market value of the cotton on the day the demand of delivery was actually made, less the sum realized by the owner on a fair sale of the cotton in its damaged condition, plus a reasonable expenditure for preparing the same for market.

3. The phrase "burden of proof" is a technical legal phrase, and an instruction stating, in general terms and without explanation, that the burden of proof is upon plaintiff, may properly be refused.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by Laurence L. Prince & Co. against the St. Louis Cotton Compress Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Omitting caption, the petition on which the case was tried is as follows:

"Plaintiff, for his amended petition, states that defendant is a corporation organized under the laws of the state of Missouri, and is engaged in the business of conducting public warehouses for the storage of cotton in the cities of St. Louis, Mo., and East St. Louis, Ill., and was the owner of two cotton warehouses in East St. Louis, Ill., known as warehouses Nos. 1 and 2. Plaintiff further states that prior to the 1st day of June, 1903, defendant had stored in its said warehouse No. 1, in East St. Louis, Ill., 141 bales of cotton belonging to plaintiff; that, by the terms of the contract under which defendant stored and held said cotton, said defendant promised and agreed with plaintiff that it would use all due care and diligence to safely keep said cotton and deliver it back to plaintiff, or to any one whom plaintiff might designate, in good condition upon the termination of said bailment, and plaintiff on his part agreed to pay defendant the reasonable and customary charges therefor. Plaintiff further says that on or about the 7th day of June, 1903, said warehouse No. 1 of defendant, in which said cotton was stored, was flooded by the waters of the Mississippi river, and said cotton of plaintiff was greatly injured and damaged thereby, and the said injury and damage to said cotton was caused by the negligence of the said defendant in the following particulars: (1) By its negligence in erecting said warehouse in a dangerous and unsafe place, which it knew, or by the exercise of ordinary care might have known, was subject to be frequently overflowed by the waters of the Mississippi river. (2) By its negligence in failing and refusing to remove said cotton to its warehouse No. 2, in East St. Louis, which was erected on high ground in a place safe from overflow, and in which there was then abundant room for said cotton, or to some other safe place, upon the request of plaintiff, and after it knew of the imminent danger which threatened said cotton by the flooding of said warehouse No. 1, and which it could have done. (3) By its negligence in not removing said cotton from said warehouse No. 1 to some more safe and suitable place during the long interval of time, amounting to some eight or ten days, which elapsed after said defendant received notice as to the time when said flood would reach St. Louis, and as to the height, extent, and duration thereof, from the weather reports issued by the United States government, and from the daily public press, and from plaintiff himself after it had expressly promised plaintiff that it would do so, and had thereby prevented plaintiff from moving it himself. Plaintiff further says that by reason of the said negligence of defendant his said cotton was soaked with the muddy waters of the Mississippi river, and was discolored and damaged, and was delivered back to him by said defendant in said damaged condition, and he was compelled to incur large expenses in having it dried, picked, cleaned, and put into a marketable condition, and by said flooding the said cotton was greatly depreciated in value, all to his damage in the sum of $3,500. Plaintiff further says that he has demanded payment of said damages from defendant, and defendant has refused to pay the same, or any part thereof; wherefore he prays judgment against defendant for the sum of $3,500."

The following (omitting caption) is the answer:

"Now comes the defendant in the above-entitled cause, the St. Louis Cotton Compress Company, and, in answer to the petition of plaintiff, denies each and every allegation in said petition contained. And, further answering, the defendant states that the location, nature, and surroundings of its warehouse situated in the city of East St. Louis, state of Illinois, to which reference is made in plaintiff's petition as the warehouse in which was stored the cotton in said petition described, were well known to the plaintiff when said cotton was delivered for storage in said building or warehouse on the account of the plaintiff, and long prior thereto; and defendant further states that said cotton was stored in said warehouse by the order and direction of plaintiff. And, further answering, the defendant states that whatever injury and damage was sustained by the cotton of plaintiff, described in the petition, was due to an act of God, in an unusual flood of the Mississippi river, which the defendant could not have foreseen or anticipated, and could not have guarded against. Wherefore defendant prays to be hence dismissed, with its cost in this behalf sustained."

The evidence shows, as alleged in the petition, that defendant owns two warehouses in East St. Louis which it uses for the purpose of storing and compressing cotton for its customers. One of the warehouses, designated as No. 2, is located on high ground in the city of East St. Louis; the other one, No. 1, is located south of the city, on bottom land, east of the Conlogue Dike, on ground from 10 to 12 feet lower than that on which No. 2 is situated. The Southern Railroad Company has switch tracks running on either side of warehouse No. 1, and cars can be loaded or unloaded into or from the warehouse on either side, and the evidence shows that from two to three thousand bales can be unloaded from the warehouse daily.

Plaintiff is a cotton buyer, and on June 4, 1903, had stored in warehouse No. 1 485 bales of cotton, which he had bought from other merchants, and which was stored in defendant's warehouse at the time of purchase. Plaintiff ordered this cotton removed to warehouse No. 2 by the following letter:

"St. Louis, June 4, 1903. Mr. Lesser, Pres. St. L. Cot. C. Co., City—Dear Sir: We are ready to pay the cost of transferring our cotton, marks as attached, to the old press as we think it would be safer from the flood if there, but we leave it to you to do as you think best, as your company is responsible for its care in either place. Yours very truly, L. L. Prince & Co."

The receipt of this letter was acknowledged by defendant on the morning of the following day by letter stating that orders had been given for cars to be sent to the warehouse for the purpose of removing the cotton to warehouse No. 1. On June 6th, defendant wrote plaintiff as follows:

"St. Louis, June 6, 1903. Messrs. L. L. Prince & Co., City—Dear Sirs: Since writing our letter by mail, it has occurred to me that I had better notify you that in order to protect your interests fully why don't you change the destination of the cotton from No. 1 to No. 2 house by shipping it to a place of safety entirely away from East St. Louis? This could easily be done by you if you wish it so. Yours truly, St. Louis Cotton Compress Co., Julius Lesser, President."

On the same date plaintiff replied as follows:

"St. Louis, June 6, 1903. Mr. Lesser, Pres. St. L. Cot. Co., City—Dear Sir: Yours of the 6th received. We did not order our cotton moved but left it to your discretion. It certainly is at the risk of your company while being moved as at all other times while we hold their receipts. We certainly hold the company responsible for the good care of our cotton. They know the danger, and have known it quite a long time. Yours very truly, L. L. Prince & Co."

Other letters passed between the parties on the same and following day, discussing the then threatened danger from the high stage of water in the Mississippi river, and the liability of defendant should the plaintiff's cotton be damaged by overflow from the river.

L. L. Prince (plaintiff) testified that he was familiar with the location of defendant's warehouse, and was apprehensive of danger, and about 4:30 p. m. on Saturday, June 6th, in company with his son, visited warehouse No. 1, and found 141 bales of his cotton still there. He testified that at that time there were about 30 empty cars and an engine standing on the railroad switches at the warehouse, and that he inquired of Welch, superintendent of the warehouse, why all of the company's cotton had not been removed to warehouse No. 2; that Welch replied he expected to remove all of it the next morning; that they would work all day Sunday, but had orders to ship other cotton (which they were then doing), and could not remove plaintiff's cotton until the next day. Witness stated that t...