Noel & Co. v. Schuur

• Decision Date: 16 July 1918
• Citation: 204 S.W. 632
• Parties: NOEL & CO. v. SCHUUR.
• Court: Tennessee Supreme Court

Page 632

204 S.W. 632

NOEL & CO. v. SCHUUR.

Supreme Court of Tennessee.

July 16, 1918.

Appeal from Circuit Court, Davidson County; Thos. E. Matthews, Judge.

Action by Peter J. Schuur against Noel & Co. Judgment for plaintiff in circuit court, and on appeal to the Court of Civil Appeals judgment reversed, and cause remanded for new trial, and plaintiff appeals. Judgment of Court of Civil Appeals reversed, and that of circuit court affirmed.

Norman Farrell, Jr., of Nashville, for Noel & Co. G. S. Moore, of Nashville, for Schuur.

WILLIAMS, J.

This suit was brought by Schuur to recover damages claimed to have been sustained by reason of the failure to properly preserve in cold storage 900 crates of celery deposited in Noel & Co.'s warehouse in the city of Nashville. Schuur was a large shipper of celery from Michigan, his home, to the Southern market, and in advance of shipping his product in the fall of 1915 he asked for and was quoted terms by Noel & Co. for the storage of his celery, so that it might from time to time be shipped from Nashville, as depot, to dealers in this and other nearby states. The theory of the plaintiff for recovery was that the warehousemen failed to maintain a suitable degree of temperature, and that in consequence the celery rotted.

A judgment was rendered in the circuit court, based upon the verdict of a jury, in favor of Schuur for $1,878, but on appeal the Court of Civil Appeals reversed the judgment and remanded the cause for a new trial.

Noel & Co. stood in both of the lower courts upon their motion for a peremptory instruction of the jury, but the adverse ruling of both of said courts was fully warranted by evidence.

It appears that the warehousemen issued to Schuur deposit slips for the celery, which slips contained, among other provisions, one to this effect:

"Condition and quality of goods or property unknown and to be removed by owners on request."

There was proof introduced tending to show that the celery was in good condition when placed with the bailees; and it is not disputed that it was greatly deteriorated in a short period of time.

The appeal was disposed of by the Court of Civil Appeals without taking note of the Uniform Warehousemen Act (Acts 1909, c. 336; Thomp. Shan. Code, § 3608a et seq.), which governs in cases involving perishable goods (section 3608a36).

This act prescribes the measure of care to be observed in the keeping of goods—that of a reasonably careful owner of similar goods. Section 3608a20.

The act does not deal with the burden of proof, the making of a prima facie case of negligence on the part of the warehouseman, or with presumptions of negligence, and common-law principles in relation thereto must find application.

The trial judge charged the jury as follows:

"If the bailor, Schuur, shows by a preponderance of all the evidence that the goods were in good condition at the time they were delivered at the cold storage warehouse, but that when they were returned or withdrawn they were in a damaged condition from any cause not inherent in the goods themselves, at the time they were delivered to Noel & Co., then the bailor has made out a prima facie case, that is, a case sufficient for recovery unless rebutted or explained away by other evidence. When such a showing is made, then it is incumbent upon the bailee, the cold storage company, to account for the damage in some manner, and by a preponderance of all the evidence, consistent with the exercise of ordinary care on its part."

The rule in cases of bailments in this state is that after the bailor has proved the delivery of the...