Paducah Ice Co. v. H.E. Hall & Co.

• Decision Date: 10 November 1908
• Parties: PADUCAH ICE CO. v. H. E. HALL & CO.
• Court: Kentucky Court of Appeals

113 S.W. 104

PADUCAH ICE CO. v. H. E. HALL & CO.

Court of Appeals of Kentucky.

November 10, 1908

Appeal from Circuit Court, McCracken County.

"Not to be officially reported."

Action by the H. E. Hall & Co. against the Paducah Ice Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Crice &amp Ross, for appellant.

Wheeler Hughes & Berry, for appellee.

NUNN J.

This appeal is from a judgment for $339.50, the value of certain cabbage stored by Hall & Co. with appellant; the latter being engaged in manufacturing ice and in the cold storage business. Appellant rented one of its rooms in its cold storage plant to Hall & Co. to store a car load of cabbage which they lost, as alleged, by reason of appellant's failure to reduce the temperature in the room to 40 degrees Fahrenheit, as it had contracted to do. Appellant, by answer made an issue, and, after all the proof was heard upon the trial, appellee, over the objection of appellant, filed an amended petition. The jury found against appellant, and it asks a reversal for two reasons: First, because of the alleged error of the court in allowing the amended petition to be filed; second, the failure of the court to grant it a new trial for the alleged reason of newly discovered evidence.

In the original petition of appellee it was alleged that appellant contracted to reduce the degree of temperature in this room to 40 degrees Fahrenheit. But the proof showed that no specific degree of reduction was named, but the temperature in the room rented was to be reduced to such a degree as might be required by appellee to preserve the cabbage, and that appellant had refused to reduce the temperature to any extent, though often demanded. The amended petition complained of conformed to the proof. We are of the opinion that the lower court did not err in allowing it to be filed. Section 134 of the Civil Code of Practice authorizes an amendment "if the amendment do not change substantially the claim or defense by conforming the pleading or proceeding to the facts proved." This was the purpose of the amendment in this case, and in our opinion did not change substantially the claim of appellee. Appellant was in the cold storage business. It rented rooms to persons to save perishable property. Appellee rented from it one of these rooms at the price of $25 for the purpose of saving its cabbage. Appellant's business was to reduce the temperature in the room to a degree sufficient to save the cabbage, and it was not material whether that should be 40 degrees Fahrenheit or any other named degree. It was only required to reduce the temperature to such a degree as would protect the cabbage. In the case of Frankfort Bridge Company v. City of Frankfort, 18 B. Mon. 41, the city desired to use the bridge of the company upon which to swing its water mains. A committee of the general council was appointed to ascertain what the bridge company would charge for the privilege. A report was made to the council that it would cost a specific amount, but there the matter rested in so far as the negotiations were concerned. Afterwards the bridge company brought suit against the city of Frankfort, alleging an express promise to pay for such privilege. It failed to establish such promise. During the progress of the trial the bridge company offered an amended petition seeking to recover upon quantum meruit. The court refused to permit the filing of the amended petition and dismissed the bridge company's action from which an appeal was prosecuted. This court in writing the opinion said: "Although the testimony on the trial...