Reid v. Baker

• Decision Date: 16 April 1923
• Docket Number: 3965.
• Citation: 288 F. 969
• Parties: REID et al. v. BAKER.
• Court: U.S. Court of Appeals — Ninth Circuit

288 F. 969

REID et al. v. BAKER.

No. 3965.

United States Court of Appeals, Ninth Circuit.

April 16, 1923

J. F Boothe, and Clark, Middleton, Clark & Skulason, all of Portland, Or., for plaintiffs in error.

Carey &amp Kerr and Omar C. Spencer, all of Portland, Or., for defendant in error.

Before GILBERT and RUDKIN, Circuit Judges, and DIETRICH, District judge.

RUDKIN Circuit Judge.

This was an action to recover damages for the loss of a quantity of loganberries while in cold storage. The complaint alleged that during the months of July and August, 1920, the plaintiff delivered to the cold storage plant of the defendants 398 barrels of loganberries; that the defendants undertook and agreed to store them safely, and to keep them in a proper state of refrigeration, so that they would not ferment or deteriorate in value; that the defendants wholly failed and neglected to keep them in a proper state of refrigeration; and that by reason of such failure and neglect the berries fermented and became a total loss. The answer denied the improper refrigeration, and alleged affirmatively among other things:

'That the 398 barrels of loganberries mentioned in the complaint were hauled a long distance in auto trucks during warm weather, and were all warm and in bad condition when delivered to the defendants. That more than half were fermenting and sizzling and many barrels were bursting and blowing up.'

Upon the trial the plaintiff offered testimony tending to show that he shipped several carloads of loganberries from the same cold storage plant to Chicago early in August of that year; that 29 out of a total of approximately 100 barrels contained in a shipment arriving in Chicago on August 4th were in bad condition; that from 50 to 60 per cent. of a shipment arriving a few days later were in bad condition; and that an entire shipment arriving a few days later was in bad condition. The defendants interposed an objection to this line of testimony on the ground that it was too remote, but the objection was overruled, and an exception allowed. The plaintiff had judgment below, and the defendants bring error. The admission of the testimony above set forth is the only error assigned.

Testimony tending to show the condition of other berries of the same kind, removed from the same plant, during the same period was clearly competent, where there was no substantial change in their condition, after removal. Whether...