Pabst Brewing Co. v. Chicago, M. & St. P. Ry. Co.
| Decision Date | 25 May 1925 |
| Docket Number | No. 15393.,15393. |
| Citation | 273 S.W. 424 |
| Court | Missouri Court of Appeals |
| Parties | PABST BREWING CO. v. CHICAGO, M. & ST. P. RY. CO. et al. |
Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.
Action by the Pabst Brewing Company against the Chicago, Milwaukee & St. Paul Railway Company and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.
Fred S. Hudson and Watson, Gage & Ess, all of Kansas City, for appellants.
Ringolsky, Friedman & Boatright, of Kansas City, for respondent.
This is an action for damages suffered by plaintiff on account of the failure of defendants to deliver at Globe, Ariz., a carload of pablo accepted by the defendants for transportation to that point. At the conclusion of all the testimony the court instructed the jury to find for plaintiff, leaving only the amount of the verdict to be determined by them. Defendants have appealed.
This case was here before. See Pabst Brewing Co. v. Chicago, Milwaukee & St. Paul Ry. Co. et al., No. 13441. The former trial resulted in a verdict for the defendants, which, however, was set aside by the trial court, and defendants appealed. This court reversed and remanded the case, with instructions to the trial court to reinstate the verdict for defendants. It was held in that appeal that, as a matter of law, defendants were deceived by the appearance of the shipment, but the opinion was never published for the reason that it was quashed, at least in part, by the Supreme Court. See State ex rel. v. Ellison, 286 Mo. 225, 226, S. W. 577.
The facts show that plaintiff was a brewery located in the city of Milwaukee, Wis., and had been largely engaged in brewing beer and shipping it to customers throughout the country; that it was and had been making real alcoholic beer for nearly 75 years; that only in the last three or four years prior to the time of the shipment of the beverage in question did it manufacture what is known and called "pablo." On January 31, 1916, it delivered to defendant Chicago, Milwaukee & St. Paul Railway Company 170 half barrels of pablo to be shipped to Globe, Ariz. The bill of lading was made out by plaintiff, and recited that the shipment contained "170 half barrels of pablo, an unfermented, carbonated, nonalcoholic beverage"; that the Milwaukee Railroad had received the property described in it, "contents and condition of contents of packages unknown." The car containing the beverage was delivered at El Paso, Tex., to the connecting carrier, the defendant Southern Pacific Company, and transported by that company to Lordsburg, N. M., the last station in New Mexico before that railroad crossed into the state of Arizona. The Southern Pacific refused to carry the car into Arizona, claiming that to do so would violate the constitution of the state of Arizona relating to the introduction into that state of certain beverages, including beer and intoxicating liquors.
Defendants' refusal to carry the shipment resulted, after a period of five months, in an agreement between plaintiff and the Southern Pacific Company that the latter empty the beverage and return the cooperage to plaintiff, all to be done without prejudice to the rights of the parties. The beverage remained in Lordsburg from February 4th to March 3d. No account is given as to what happened to it between those dates. Defendants' witness, Brinley, stated that he placed locks upon the car on March 3d, and attended to the icing of the car between that day and June 17th, and kept possession of the keys. He did not tesify as to what amount of ice was put in the car or at what temperature the car was maintained. On June 17th Brinley turned the keys over to one Reardon, an employee of the defendant Southern Pacific Company, who, in company with two other employés of said defendant, opened the car and took out a half barrel of the beverage and delivered it to Dr. Meserve of Tucson, Ariz. Dr. Meserve testified that he was a chemist in the employ of the state of Arizona; that he received the keg of beverage from Reardon, and, on the same day, after noting that it was thoroughly chilled, opened it and made an analysis of its contents, and found that the beverage contained 0.726 per cent, of alcohol by volume. When the liquid was opened "it looked like beer, foamed like beer, and smelled like beer."
Plaintiff introduced the testimony of the agent of the Milwaukee Railway Company at Milwaukee, who testified that the company did not, accept shipments of pablo for transportation unless the bill of lading was accompanied by an affidavit of a disinterested chemist stating what the pablo contained, and that the liquid tendered was a nonalcoholic, unfermented, carbonated beverage. The witness further testified that a waybill, which was introduced in evidence in connection with his testimony, accompanied the shipment, and that it bore on its face the information that the shipment consisted of "170 ½ bbl. pablo carbonated beverage, nonalcoholic," and that the shipment was perishable. He further testified that the affidavit, which the witness identified, was attached to the waybill, and that the waybill was supposed to accompany the shipment to destination.
Defendants offered the testimony of plaintiff's brew master and chemist, who testified that pablo was made in plaintiff's brewery at Milwaukee; that the same equipment for manufacturing beer was used, in part, in the manufacture of pablo; they testified, however, that neither malt nor yeast was used in the manufacture of pablo; that there was no process of fermentation; that pablo contained no alcohol; that it was a nonintoxicating unfermented beverage; that pablo was a perishable liquid; that if it was not kept at the proper temperature, it would spoil and become unfit for beverage purposes; that when it became spoiled it usually created a certain amount of alcohol, but it could be kept from spoiling for as long as three months if maintained at the proper temperature. There was other evidence that the proper temperature in which to keep pablo was between 34 and 40 degrees Fahrenheit.
Plaintiff's chemist testified that if pablo was not kept properly iced, it would spoil, and there would be that the odor of pablo in a good condition is entirely different from that of beer; that the color would be similar, and that it would foam similarly to beer.
The keg of beverage opened on June 19th had pasted over its bunghole and attached to the keg by cleats a United States internal revenue stamp labeled "beer," and was stamped with the words "Pabst Brewing Company." It was brought out from defendants' witnesses that the government authorities at the time in question would not permit a brewery to ship any beverage in regular beer kegs without paying the regular government revenue for beer, and having revenue stamps placed on them such as those attached to the shipment in question. Beer kegs were not required for shipment of pablo. It could have been shipped in bottles or other suitable containers. The Constitution of the state of Arizona, which is in evidence, provided:
See Laws 1915, Const. Amend. p. 1.
A letter was introduced in evidence, written to plaintiff by the agent of the Southern Pacific Company, at Lordsburg, stating that the shipment was being held in transit "on account of the Arizona prohibition law, waiting decision of the court."
Defendants insist that the court erred in peremptorily instructing the jury to find for the plaintiff. We think this point is well taken. While pablo as described by the brew master and chemist was not beer under the provisions of the Arizona Constitution which we have quoted, supra (Brown v. State, 17 Ariz. 314, 152 P. 578), there was some slight testimony of probative value that the car of beverage shipped was beer. The testimony of the witness who saw the liquid that was opened by Dr. Meserve, together with his testimony, was sufficient evidence to go to the jury upon that question.
But plaintiff insists that the evidence shows that there had been a change in the beverage from the time it arrived at Lordsburg and at the time it was opened and examined by Dr. Meserve; that there was a failure to show whether the car had been iced from February 4 to March 3, or what happened to it, and whether it had been properly iced from March 3 to June 17, and whether it was iced at all from June 17 to June 19. The presence of the unbroken revenue stamp over the bunghole was some evidence that the keg had not been tampered with since it left plaintiff's hands. Dr. Meserve testified that when he opened the keg it was thoroughly chilled. However, assuming there was no direct evidence that the beverage was properly...
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