Russell v. Empire Storage & Ice Co.

• Decision Date: 20 April 1933
• Docket Number: 30438
• Citation: 59 S.W.2d 1061,332 Mo. 707
• Parties: v. H. Russell and M. v. Moffett, a Copartnership doing business under the name of Russell and Moffett, v. Empire Storage & Ice Company, a Corporation, Appellant
• Court: Missouri Supreme Court

59 S.W.2d 1061

332 Mo. 707

H. Russell and M. v. Moffett, a Copartnership doing business under the name of Russell and Moffett, v. Empire Storage & Ice Company, a Corporation, Appellant

No. 30438

Supreme Court of Missouri

April 20, 1933

Appeal from Jackson Circuit Court; Hon. Clarence A. Burney Judge.

Reversed and remanded.

H G. Leedy and M. W. Rider for appellant.

(1) There is no evidence which supports the allegations in count I of plaintiffs' petition relating to the 690 cases of "late" eggs which remained in defendant's storage warehouse on December 31, 1925, and the court erred in instructing the jury that they might find for plaintiffs for such eggs and award plaintiffs damages for the full market value thereof. Spalding v. C. B. & Q. Railroad Co., 101 Mo.App. 225; Redmon v. C. R. I. & P. Ry Co., 90 Mo.App. 68; Mills v. Natl. S. S. Co., 5 N.Y.S. 258; Corso v. Railroad Co., 20 So. 752; St. Louis I. M. & S. Ry. Co. v. Cumbie, 141 S.W 939; Parsons v. U.S. Express Co., 123 N.W. 776; Crescent Bent Co. v. Jonas, 273 P. 28; Union Stone Co. v. Wilmington Transfer Co., 90 A. 407; Gutschneider v. Priosnick, 123 N.Y.S. 190; Herman v. Baretts, Palmer & Heal Dying, 156 N.Y.S 418; May v. Georger, 47 N.Y.S. 1057. (2) The trial court erred in instructing the jury that the plaintiffs' measure of damage, if any, for the 690 cases of "late" eggs which remained in defendant's storage warehouse on December 31, 1925, was the full market value of said eggs, thereby disregarding defendant's undisputed lien on said eggs as pledgee and in rendering judgment on the jury's verdict, awarding such damages, which did not take into account defendant's said lien as pledgee. 3 Joyce on Damages, sec. 1928; Joyce on Damages, sec. 497-C; Dilworth v. McKelvy, 30 Mo. 149; Tobener v. Hassinbusch, 56 Mo.App. 591; Baldridge v. Dawson, 39 Mo.App. 527; Hornsby v. Knorpp, 207 Mo.App. 321, 232 S.W. 776; Bruce v. Crysler, 217 S.W. 563; Brightson v. Claflin, 122 N.E. 568; Baltimore Marine Ins. Co. v. Dalrymple, 25 Md. 269; Shaw, Admr., v. Fergason, 78 Ind. 547; Kohn v. Dravis, 94 F. 288. (3) The court erred in excluding competent and material evidence offered by defendant to meet evidence on the part of plaintiffs to show (1) that the 690 cases of "late" eggs which remained in defendant's warehouse on December 31, 1925, and the 400 cases of "late" eggs which were shipped by plaintiffs to their broker in Chicago, by reason of the season of the year in which the same were laid and the conditions under which they were gathered and stored, would deteriorate from inherent and natural causes during a storage of the length that said eggs were in storage; and (2) that "late" eggs are inferior for storage purposes to eggs laid in the spring of the year and cannot be held in storage without substantial deterioration for the same length of time. Jones v. Rush, 156 Mo. 371; 45 C. J. 1141; Stein v. Battenfeld Oil & Grease Co., 39 S.W.2d 347; Greenway v. James, 34 Mo. 326; Young v. Glascock, 79 Mo. 574; Patton v. Fox, 69 S.W. 287, 169 Mo. 97, 106; Platte County v. Marshall, 10 Mo. 345; Budd v. Hoffheimer, 52 Mo. 297; Gardner v. Crenshaw, 122 Mo. 79. (4) The court erred in permitting plaintiffs to introduce evidence that "late" eggs not owned by plaintiffs and stored with other warehousemen were not damaged during such storage. 22 C. J. 750; Dayton Folding Box Co. v. Danciger, 161 Mo.App. 640; Cunningham v. Springfield, 31 S.W.2d 123; Lake Superior Loader Co. v. Huttig Lead & Zinc Co., 305 Mo. 130, 264 S.W. 396; Charlton v. St. Louis, etc., Railway Co., 200 Mo. 413; Hobbs v. Boatright, 195 Mo. 693; McGinnis v. Rigby Printing Co., 122 Mo.App. 227; Estes v. Mo. Pac. Ry. Co., 110 Mo.App. 725. (5) The court erred in permitting plaintiffs to introduce evidence relating to alleged damaged eggs stored by parties other than plaintiffs with other warehousemen during other years, and in permitting plaintiffs to introduce opinion evidence based on no facts whatever, and without application to the facts in the case, that "a cold storage plant having no control over the amount of moisture present is not a proper place in which to store eggs." Waddell v. Met. St. Ry. Co., 113 Mo.App. 680; Grayson v. Grayson, 190 S.W. 930; Sexton v. Lockwood, 207 S.W. 856; Cunningham v. Springfield, 31 S.W.2d 123; Lake Superior Loader Co. v. Huttig Lead & Zinc Co., 305 Mo. 130, 264 S.W. 396; Charlton v. St. Louis, etc., Railway Co., 200 Mo. 413; Hobbs v. Boatright, 195 Mo. 693; McGinnis v. Rigby Printing Co., 122 Mo.App. 227; Estes v. Mo. Pac. Ry. Co., 110 Mo.App. 725. (6) The court erred in admitting evidence of plaintiffs' witnesses, M. P. Rutledge and Earl Rutledge, based wholly on the contents of a "trade bulletin" relating to the alleged market value of eggs in Chicago on December 31, 1925, as such evidence was not of the market value of eggs actually sold, but a price under "futures" contracts on the Mercantile Exchange of Chicago; and in excluding evidence offered by defendant (1) of the true meaning of the quotations in the "trade bulletin" on which the evidence of plaintiffs' witnesses was based and its inapplicability to actual sales by stores of eggs, and (2) of the true situation relating to the market value of eggs in Chicago at that time, as shown by said "trade bulletin," which plaintiffs had introduced in evidence. Brockman Commission Co. v. Aaron, 145 Mo.App. 307; Henderson v. Wabash Railroad Co., 126 Mo.App. 610; Hoskins v. Mo. Pac. Ry. Co., 19 Mo.App. 315; 22 C. J. 1259, 1261; Emory v. Joice, 70 Mo. 537; Poplin v. Brown, 200 Mo.App. 255, 205 S.W. 411; McElvain v. Railroad Co., 151 Mo.App. 126, 131 S.W. 736; Mammon v. Hartman, 51 Mo. 168; 22 C. J. 972; Sikes v. Riga, 221 Mo.App. 152, 297 S.W. 727; Dayton Folding Box Co. v. Danciger, 161 Mo.App. 640, 143 S.W. 855; Bagnell Timber Co. v. Railroad Co., 250 Mo. 514; Soulard v. Clark, 19 Mo. 570. (7) The court erred in giving to the jury Instruction 1, under which the jury were permitted to find for plaintiffs under count one of their petition, and in giving Instruction 4 which fixed plaintiffs' measure of damages under said Instruction 1, for the reason that the jury were permitted to find for plaintiffs under said count one of their petition if "any" of the eggs referred to were damaged, or if only the "cartons, fillers or cases in which said eggs, or any of them, were packed" were damaged in the manner stated in the instruction, and if the jury found any such damage they were directed to assess damages for the entire lots of eggs, respectively, mentioned in said Instruction 1. Degonia v. St. Louis I. M. & S. Ry. Co., 224 Mo. 564, 123 S.W. 807; Collett v. Kuhlman, 243 Mo. 585, 147 S.W. 965; Schumacher v. Breweries Co., 247 Mo. 141, 152 S.W. 13; State ex rel. Peoples Bank of Sumner v. Melton, 213 Mo.App. 662, 251 S.W. 447. (8) The court erred in giving to the jury Instruction 1, under which the jury were permitted to find for plaintiffs under count one of their petition, for the reason that it prescribed a degree of care upon the part of defendant which was not defined by the instruction and was left to conjecture, which was different than the degree of care required of warehousemen under the laws of this State. Sec. 14394, R. S. 1929. (9) The court erred in submitting Instruction No. 4 to the jury in which they were permitted to assess damages for the eggs shipped to Chicago, in the manner therein stated, if such eggs were shipped "upon the request of and/or the demand of defendant," as there was no proper evidence on which to submit the question whether such eggs were shipped at the request and/or demand of defendant, and the direction to the jury that it might find such facts was an appeal to their prejudice. State ex rel. Cruzen v. Ellison, 211 S.W. 880; Furtch v. Wab. Ry. Co., 236 S.W. 338. (10) The court erred in admitting incompetent, immaterial and prejudicial evidence on the part of plaintiffs of conversations preceding the storage of eggs by plaintiffs in defendant's warehouse, and the making of loans by defendant to plaintiffs thereon, which varied and contradicted the terms of the written contracts entered into between the parties, evidenced by promissory notes executed by plaintiffs and the pledge agreement contained therein. Rogers v. Frender, 261 S.W. 105; Humana Co. v. Hughes, 213 S.W. 515; Gentner v. Johnson, 270 S.W. 442. (11) The court erred in submitting to the jury Instruction 2, by which the jury might find for plaintiffs on count two of their petition if they found among other things that an "arrangement or understanding" was had between plaintiffs and defendant subsequent to the storage of the eggs in evidence, by which plaintiffs could withdraw any part of the same by paying defendant the amount stated in the instruction, for the reason that there was no evidence of any such arrangement or understanding, and had there been the same would not have constituted a valid or enforceable contract unless based on a valid consideration and there was no claim that any such consideration existed. McFarland v. Heim, 127 Mo. 327; Koslosky v. Bloch, 191 Mo.App. 257; Wilt v. Hammond, 179 Mo.App. 406; Wilson v. Wilson, 115 Mo.App. 641; Grath v. Mound City Roofing Tile Co., 121 Mo.App. 245. (12) The court erred in submitting to the jury Instruction 2, in which it was stated that if the jury found from the evidence that "on the 31st of December, 1925, plaintiffs made a demand upon defendant for the return and delivery to them of all the eggs . . . in Warehouses A and F . . . and tendered and offered to pay defendant" the amount mentioned in said instruction, as the reference to December 31, 1925, singled out plaintiffs' evidence as to the date of said alleged tender, although the testimony was in sharp conflict, and gave such evidence prominence to...