Springfield Crystallized Egg Co. v. Springfield Ice & Refrigerating Co.

• Decision Date: 30 June 1914
• Citation: 168 S.W. 772,259 Mo. 664
• Parties: SPRINGFIELD CRYSTALLIZED EGG COMPANY v. SPRINGFIELD ICE & REFRIGERATING COMPANY, Appellant
• Court: Missouri Supreme Court

168 S.W. 772

259 Mo. 664

SPRINGFIELD CRYSTALLIZED EGG COMPANY v. SPRINGFIELD ICE & REFRIGERATING COMPANY, Appellant

Supreme Court of Missouri, First Division

June 30, 1914

Appeal from Laclede Circuit Court. -- Hon. L. B. Woodside, Judge.

Affirmed.

Delaney & Delaney and Wm. H. Horine for appellant.

(1) In this case, in stating the cause of action, plaintiff does not count on the bailment and ask judgment on the ground of non-delivery of goods on demand. This it could have done and could thus have imposed upon defendant the burden of showing that the damage was attributable solely to an act of God, or that it was not caused by any negligence of defendant. Per contra, the petition alleges specific acts of negligence. From such petition it also appears that this alleged negligence concurred with an act of God. Under such allegations, the burden is upon plaintiff to prove some act of negligence charged. It was not sufficient to prove bailment and non-return of property bailed. Nor does any inference of negligence arise from proof of such facts alone. An act of God concurring with negligence would not exonerate defendant, nor do we claim that it would. But we claim that the plaintiff must prove the negligence alleged. It is important to bear this in mind, as the instructions submitting the case to the jury must be predicated upon the issues tendered by the pleadings. Under the pleadings and the law, the defendant is only required to use ordinary care in the discharge of its duty to the plaintiff. It is a mere warehouseman for hire. On burden of proof, see Wolf v Am. Ex. Co., 43 Mo. 421; Wiser v. Chesley, 53 Mo. 547; Davis v. Railroad, 89 Mo. 240; Turner v. Haar, 114 Mo. 345; Nichols v. Winfrey, 79 Mo. 545; Mill Co. v. Transit Co., 122 Mo. 275; Read v. Railroad, 60 Mo. 199; Otis v Railroad, 112 Mo. 622; Gillespie v. Railroad, 6 Mo.App. 554; Hadley v. Orchard, 77 Mo.App. 141; Railroad v. Reeves, 10 Wall. 176; Walling v Railroad, 101 Mo. 631; Brewing Assn. v. Talbot, 141 Mo. 679; Long v. Railroad, 14 L. R. A. 741. On degree of care, see, Tucker v. Barnett, 5 Mo. 97; Clark v. Railroad, 39 Mo. 184; Holzelaw v Duff, 27 Mo. 392. On burden being on plaintiff when allegation is of concurring negligence with act of God see, Turner v. Haar, 114 Mo. 335; Nichols v. Winfrey, 79 Mo. 545; Railroad v. Reeves, 10 Wall. (U.S.) 176. (2) Judged by this standard, that ordinary care only is required of defendant, and that it devolves upon the plaintiff to show that the injury was the result of negligence on the part of defendant, the verdict on the pleadings and on the undisputed evidence should have been for the defendant. The undisputed evidence taken as a whole shows: That the damage to plaintiff's goods is attributable solely to the act of God; that there was no concurring or intervening act of negligence on the part of the defendant; that the conduct of defendant was not the proximate cause of damage; that it was not negligence to fail to anticipate an act of God or its consequences. Under such conditions, the defendant is not liable. The damage was the result of an act of God without any intervening or concurring negligence by the defendant, because: The basement was not flooded from a usual or ordinary flood, nor from the usual and ordinary course of an extraordinary flood. The basement was flooded by an extraordinary and unusual flood, and was flooded in an unusual, unforeseen, unanticipated and inexplicable manner. From the facts in evidence there was nothing to rouse a suspicion or justify a fear. Nor would any reasonably prudent man, with the same facts and conditions before him which confronted defendant, have anticipated a flooding of the basement or a flooding in the manner in which it was flooded. From the facts and circumstances presented to the vice-principal of the plaintiff, said plaintiff did not anticipate either a flooding or a flood in the manner in which it occurred. And surely if the conditions were not such as to arouse reasonable apprehensions of danger in his mind, by the same standard the alleged vice-principal of the defendant should be exonerated from the charge of negligence when his conduct is bottomed on the same facts. The petition charges that defendant received warning -- presumably from the representatives of plaintiff, for their testimony on such alleged lines is all there is in the record to show such warning. As appears from such evidence, there was no warning in fact. But assuming that a warning was given, it was not incumbent on defendant's servants to remove the goods from the basement unless the appearances of danger were such as to arouse an apprehension in a reasonably prudent man. These apprehensions were not aroused in the mind of anybody representing either party at the time; and the fact that subsequent events show that there was a real danger ought not to establish negligence. (3) On the evidence adduced by plaintiff and on the whole case, a peremptory verdict should have been directed for defendant. The only apparent danger to plaintiff's goods was from an inundation of the defendant's basement from the overflow. A continued rise of surface water to such height that it would invade the basement through the windows or door or in some way from the surface reach the basement were the only things feared. With all the evidence before us we are still left to conjecture. We can only surmise how the basement was flooded, to-wit by the sewer system in some way becoming affected and thus causing a backing up of the sewer contents; or by pressure through the seams of the cement floor. How the storm produced this result is only a surmise. Surely one cannot be held responsible for failure to reason out and anticipate a result when, after the result is manifest, it is still problematic how or why it occurred or what produced it. Mischief which could not by the highest degree of care have been foreseen surely cannot be ground for legal liability when only ordinary care is imposed. The tests are: "The result might have been foreseen." "What is probable must be considered; not what is possible." Clark v. Railroad, 39 Mo. 184; Balentine v. Railroad, 40 Mo. 491; Davis v. Railway, 89 Mo. 340; Turner v. Haar, 114 Mo. 347; Mill Co. v. Transit Co., 122 Mo. 278; Walling v. Railroad, 101 Mo. 631; Otis v. Railroad, 112 Mo. 622; Ellett v. Railroad, 76 Mo. 518; Flori v. St. Louis, 69 Mo. 341; Fuch v. St. Louis, 167 Mo. 645; Sullivan v. Railroad, 133 Mo. 7; Coleman v. Railroad, 36 Mo.App. 476; Com. Co. v. Railroad, 113 Mo.App. 547; Grier v. Terminal Co., 108 Mo.App. 57; Holden v. Railroad, 108 Mo.App. 675; Stone v. Railroad, 171 Mass. 536; Schaeffer v. Railroad, 105 U.S. 249; St. Louis v. Ins. Co., 139 U.S. 237; Sutton v. Railroad, 66 N.Y. 243; Hubbel v. Yonkers, 104 N.Y. 434; Loftus v. Ferry Co., 84 N.Y. 455; Marsh v. Chickering, 101 N.Y. 396; Beatty v. Railroad, 58 Iowa 242; Burke v. Witherbee, 98 N.Y. 562; City of Allegheny v. Zimmerman, 95 Pa. St. 287; Ray on Neg. of Imposed Duties, pp. 133-134; Webb-Pollock on Torts, pp. 45-46. (4) The damage complained of resulted from an act of God. The defendant was not required to anticipate such act, nor is it required to anticipate the inexplicable and mysterious ways in which He works His will. Defendant was not required to anticipate that the storm then raging would continue until it became an unprecedented one, or that it would in some inexplicable manner flood the basement. Nor, even in the face of the so-called warning, was defendant required to assume that the basement would be flooded other than in a natural way. Flori v. St. Louis, 69 Mo. 341; Ellett v. Railroad, 76 Mo. 518; Coleman v. Railroad, 36 Mo.App. 476; Smith v. Railroad, 11 L. R. A. (Ala.) 619; Long v. Railroad, 16 L. R. A. (Penn.) 741. (5) Under the law and the evidence the failure of defendant to remove the product from the basement is not a proximate cause of the injury complained of. At worst, it offered a mere occasion for the injury. In this case, under no reasoning, can such failure be deemed a proximate cause, if we bear in mind the real meaning of the term. The proximate cause in this case was: 1st, the act of God; 2nd, the said act of God manifesting itself in an inexplicable manner. The proximate cause is the efficient cause, the one that necessarily sets the other in motion. Aetna Ins. Co. v. Boon, 95 U.S. 117; Kappes v. Shoe Co., 116 Mo.App. 154; Brubaker v. Electric Co., 130 Mo.App. 439; Wilson v. Railroad, 129 Mo.App. 639. The practical construction of "proximate cause" is the cause which naturally led to, and which might have been expected to be directly instrumental in producing the result. State v. Railroad, 52 N.H. 552; Topssham v. Lisbon, 65 Me. 449. In determining the proximate cause, the true rule is the damage must be the natural and probable consequence of the injury. Such as according to common experience is likely to result or which in the course of events based on common experience might reasonably be anticipated. Hoadley v. Transp. Co., 115 Mass. 304; Derry v. Plilner, 118 Mass. 1131; Lane v. Atlantic Works, 111 Mass. 136. (6) The duty was imposed upon the bailor, the plaintiff, to care for the goods after the submersion. It and its officers had exclusive knowledge of the ingredients of the food product, had better and peculiar knowledge of the effect thereto from contact with water and was peculiarly in a position to care for the product after such contact. Under such circumstances the duty devolved upon plaintiff to act, and if its negligent non-action either contributed to the original damage, or if such negligent non-action contributed to the increase of damage, it must bear the consequences of such action or non-action. These theories of defendant were entirely ignored as appears from the refusal...