Levi v. Missouri, Kansas & Texas Ry. Co.

• Decision Date: 29 May 1911
• Citation: 138 S.W. 699,157 Mo.App. 536
• Parties: H. LEVI, S. FRIEDMAN and J. MINDA, Partners doing business under the firm name and style of H. LEVI & COMPANY, Respondents, v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

138 S.W. 699

157 Mo.App. 536

H. LEVI, S. FRIEDMAN and J. MINDA, Partners doing business under the firm name and style of H. LEVI & COMPANY, Respondents, v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

May 29, 1911

Appeal from Jackson Circuit Court.--Hon. Sam Sparrow, Special Judge.

Judgment reversed.

E. A Neel for appellant.

(1) The court erred in not sustaining defendant's demurrer to the second count of petition at the conclusion of the evidence offered by the plaintiff. Whitting v. Railroad, 101 Mo. 639; Milling Co. v. Transit Co., 122 Mo. 274; Holtzclaw v. Duff, 27 Mo. 394; McCarthy v Walf, 40 Mo. 323; Plow Co. v. Railroad, 61 Mo.App. 374; Cohen v. Railroad, 59 Mo.App. 68. (2) The court erred in not sustaining defendant's demurrer to the second count of plaintiff's petition at the conclusion of all the testimony. Same authorities as above. (3) A warehousemen's duty is merely to take ordinary and reasonable care of property and he is only liable when shown to be guilty of some negligence or carelessness. Holtzclaw v. Duff, 27 Mo. 395; Burges v. Storage Co., 136 Mo.App. 38; Gashweiler v. Wabash, 83 Mo. 118; Cramer v. U. S. Ex. Co., 56 Mo. 528. (4) It was the duty of the plaintiffs (Minda) to remove its trunks promptly from the depot, and in not doing so it was guilty of contributory negligence. Felton v. Railroad, 86 Mo.App. 335; Hogan v. Citizens Ry. Co., 150 Mo. 55. (5) The court erred in permitting the witness Minda to state over the objection of the defendant, as to what he said Daily said on the morning after the fire as to what he thought caused the fire and what the depot had in it. (a). Because Dailey was not authorized to bind the defendant by any such admission, even if it was made. Moran v. Brown, 27 Mo.App. 491. (b). Because such evidence was hearsay. Corrister v. Railroad, 25 Mo.App. 627; Adams v Railroad, 74 Mo. 556; Chillicothe v. Raynard, 80 Mo. 185. (6) The court erred in permitting the witnesses Pelletier and Gardner to testify over the objections of the defendant as to whether waste and oil mixed would spontaneously combust. (a). This was no case for expert testimony because the jury was as competent as the witnesses to judge whether oil-soaked waste would combust spontaneously. Benjamin v. Railroad, 133 Mo. 289; Hurst v. Railroad, 163 Mo. 320; St. Louis v. St. Louis, etc., 120 Mo. 550. (b). These witnesses and especially the witness Pelletier were not qualified as experts. Graney v. Railroad, 157 Mo. 680; Turner v. Hoor, 114 Mo. 344; Hunt v. Railroad, 94 Mo. 260; State v. Miller, 44 Mo. 165. (7) Plaintiff's first instruction was erroneous in the following particulars: (a) Although the petition charged the defendant with negligence and defendant's liability, if any, was for negligence, the instruction did not require the jury to find the defendant guilty of negligence. Haitzclaw v. Duff, 27 Mo. 392; Gashweiler v. Wash, 83 Mo. 112. (b). The instruction laid down a higher degree of care for defendant than the law requires. (c). The instruction purported to be an instruction on the whole case yet it omitted one of the defenses of the defendant, to-wit, contributory negligence. Maack v. Schneider, 57 Mo.App. 434; Boles v. Railroad, 134 Mo.App. 704; Tinkle v. Pyle, 212 Mo. 471.

I. G. Ringolsky for respondents.

(1) The court properly overruled defendant's demurrer to all the evidence introduced. Because a prima facie case was made by plaintiffs, by showing a delivery of the sample trunks in good condition to defendant and a failure of defendant to return the trunks, when demanded; and because the evidence almost conclusively established liability on the part of defendant and furthermore because a full Abstract of Record of all the evidence was not brought to this court by appellant; and because plaintiffs made a prima facie case, by showing they delivered the trunks in good condition to defendant and when they called for them next morning, the defendant failed to return them to plaintiffs. Collier v. Storage & Moving Co., 147 Mo.App. 700. (2) The testimony of plaintiff, Minda, as to statements made to him by the station agent, Daily, when he presented his checks, and demanded his trunks, the morning after the fire was unquestionably competent and binding on the defendant. Hampton v. Pullman Car Co., 42 Mo.App. 134; Thompson v. Railroad, 59 Mo.App. 37. (3) The testimony of witnesses, Pelletier and Gardner, that "oilsoaked waste" would under conditions, spontaneously combust, was competent. Boettger v. Iron Co., 124 Mo. 104; Combs v. Construction Co., 205 Mo. 391; Bradford v. Railroad, 64 Mo.App. 475; Sowden v. Idaho Co., 55 Cal. 443. (4) The instructions given for plaintiff were legal and proper and repeatedly declared to be so by our appellate courts. Rossier v. Wabash, 115 Mo.App. 515; Gashweller v. Railroad, 83 Mo. 112.

OPINION

JOHNSON, J.

Plaintiffs, wholesale merchants at Kansas City, sued the defendant railroad company to recover damages for the loss by fire of two sample trunks and contents at defendant's depot in Mound Valley, Kansas. The petition contained two counts. In the first, plaintiffs sought to hold defendant as a common carrier, in the second, the cause pleaded was the negligent breach of defendant's duty as a warehouseman. At the close of the evidence plaintiffs dismissed the first count. The court overruled defendant's demurrer to the evidence and submitted to the jury the issue of whether or not the loss of the property was due to negligence of defendant as warehouseman. The verdict and judgment were for plaintiffs and the cause is here on the appeal of defendant.

The loss occurred during the night of April 21, 1909. One of the plaintiffs, J. Minda, was on a trip through Kansas as a traveling salesman for plaintiffs and carried two trunks filled with sample merchandise. He checked the trunks as baggage and at Parsons, Kansas, found that one of them had been detained at Oswego. He informed defendant's agent and baggageman that he was a traveling salesman; that his trunks contained samples and that he could not go on without both of them. The agent telegraphed to Oswego and had the belated trunk forwarded to Parsons. On its arrival, Minda bought a ticket to Mound Valley, had the two trunks checked on the ticket, and paid the excess baggage charges on them. He and his trunks were carried on the same train which arrived at Mound Valley at 6:30 p. m. He saw the trunks being unloaded from the baggage car but, as he had not been in Mound Valley before, went to a hotel without arranging for their disposition. The hotel had no sample room, and, finding that the stores were closed, Minda left the trunks in defendant's care overnight. Defendant was using two box cars as a station, one as an office and waiting room for passengers, and the other as a depot for freight, baggage and company property. When the agent found that the trunks would not be removed that evening he had them taken into the depot car and when he closed for the night, he locked the door. Defendant kept no one on duty at the station at night and depended on locks for the security of its own property and that of its patrons. The cars were in good condition and the locks were heavy and strong. The fire started in the depot car. None of the witnesses knew how it originated. There was no fire in the car and the only hightly combustible materials in it "were coal oil kept by the company in a ten gallon can for switch lights and office lamps and a few pounds of waste for use in cleaning lamps. There is no evidence that any waste that had been used was kept in the car except the testimony of Minda who testified at the trial that the agent told him the next morning that waste saturated with coal oil had been allowed to remain in the car. This conversation occurred at the time Minda presented his checks and demanded his trunks. We quote the testimony:

"I went over there and saw they had the fire and not knowing whether my trunks were destroyed or not I handed my two checks and asked for my trunks. He said my trunks of samples were burned up that night; that the fire had occurred about midnight and they were burned up. I asked him what was the cause of the fire and he says he thought that probably tramps had broken in there during the night. He says that he thought either someone had broken in and set fire to the place or either they had a lot of waste and refuse in there which he thought probably caused spontaneous combustion and after he took the number of my checks, he said he would make a report of it. He says a lot of oil soaked waste in there that they had been using for the lamps and other tools."

The testimony was admitted over the objections of defendant. It was customary for defendant to keep a can of coal oil and waste in its depots at small towns and aside from the testimony quoted there is evidence to the effect that oil-soaked waste was useless for any purposes and was not kept in the depots. Over the objection of defendant plaintiffs introduced expert evidence that waste saturated with coal oil will sometimes inflame spontaneously if kept in a close, unventilated place where the temperature is high.

The negligence of defendant specified in the petition thus may be summarized: 1st, using old, defective and insecure box cars in lieu of a station house; 2nd, failing to maintain a night watchman at the station; 3d, failing to use proper precautions to protect the premises from fire.

After the trunks were unloaded from the train and especially after defendant was compelled, on account of the failure of their owner to claim and remove them, to store them in its depot, defendant's duties as a common carrier terminated and the duties it owed plaintiffs with respect to the trunks...