Walters v. Adams Transfer & Storage Co.
| Decision Date | 19 February 1940 |
| Citation | 141 S.W.2d 205,235 Mo.App. 713 |
| Parties | JOHN W. WALTERS, APPELLANT, v. ADAMS TRANSFER & STORAGE COMPANY, A CORPORATION, RESPONDENT |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court of Jackson County.--Hon. Paul A. Buzard Judge.
Order reversed and cause remanded.
Allan R. Browne for appellant.
(1) The court erred in granting the motion for a new trial and in giving respondent a new trial on any ground, especially on the assigned ground that the court erred in refusing to give a peremptory instruction offered by respondent at the close of all the evidence, because a case was made for the jury for. A bailee is estopped to question the title of the bailor. Kramer v. Grand, 81 S.W.2d 961. Delivery and unexplained failure to return an article renders the defendant liable. Cothren v. K. C. Laundry (Mo App.), 242 S.W. 167. The burden on plaintiff to show bailee's negligence is carried by showing delivery to bailee and failure to redeliver. Bailee must then prove he was not guilty of negligence. Osage v. Gorg, 191 S.W. 1026, 1029; Dobie on Bailments and Carriers (1914), p 38. This made a res ipsa loquitur case for the jury and raised a presumption of fact as to the want of ordinary care or negligence on the part of the respondent in failing to return said semi-trailer. 8 C. J. S., under Sec. 50, p. 339 sub-sec. C, p. 341; Freeman v. Foreman, 141 Mo.App. 359, 366; Austin v. Simon, supra, 204 S.W. 193; Hartford v. Tabor, 21 S.W.2d 207, 208; Corbin v. Cleaning, 181 Mo.App. 151, 153, 154, 155; Hartnett v. May (Mo. App.), 85 S.W.2d 644, 648; Williams v. St. L. S. F. (Mo.), 85 S.W.2d 624, 634. No evidence offered by the respondent took from the jury the benefit to appellant of this presumption, and the jury had the right to pass on the matter under the circumstances. State ex rel. Bauman v. Doder (Mo. App.), 121 S.W.2d 263; Evans v. Mo. Pacific (Mo.), 116 S.W.2d 8, 9; Price v. Metropolitan Street Railway Co., 220 Mo. 435, 119 S.W. 932; Bond v. St. L. S. F. (Mo.), 288 S.W. 777; Conduitt v. Trenton (Mo.), 31 S.W.2d 21, 25; Bartlett v. Pontiac (Mo. App.), 31 S.W.2d 279, 281; Smith v. Metropolitan, 107 S.W.2d 808 (K. C., certiorari denied); Rockenstein v. Rogers, 31 S.W.2d 792, 798; Kenney v. Henson (Mo. App.), 107 S.W.2d 947, 952; Van Houten v. K. C. P. S. Co. (Mo. App.), 122 S.W.2d 868; Collier v. Langan, 147 Mo.App. 700; Price v. Metropolitan, 220 Mo. 453; Benz v. Monarch (Mo. App.), 9 S.W.2d 822; Sekavac v. Tenth Street (Mo. App.), 265 S.W. 849; Turner v. National (Mo. App.), 28 S.W.2d 125, 126; State ex rel. v. Allen, 85 S.W.2d 63, 67; Crabtree v. Bankers (Mo. App.), 128 S.W.2d 1089. Negligence may be inferred in this case from the circumstantial evidence concerning the appearance of the smoke and fire on the right rear dual tires and the testimony that running the tires flat would cause said fire, taken in addition to the negligent failure by respondent to throw available woolen blankets on the incipient fire before it had become of any consequence, and thus to extinguish it. Freeman v. K. C. P. S. Co., 30 S.W.2d 176, and Beaber v. Kurn, 91 S.W.2d 70; McKnight v. Batrick (Mo. App.), 49 S.W.2d 277; Ditsch v. K. C. P. & L. Co. (Mo. App.), 128 S.W.2d 1055. The court erred in refusing to admit appellant's testimony that witness Swinney told him that the tire that caught on fire had been run flat and that is how it caught on fire, for the reason that such testimony was admissible as evidence of notice of a dangerous condition which later resulted in the loss to plaintiff. State ex rel. Kresge v. Shain, 101 S.W.2d 14, 17. Therefore, the motion for new trial should not have been granted on any ground, especially on the assigned ground that the court erred in refusing to give a peremptory instruction offered by the respondent at the close of all the evidence.
Edward S. North and Robert S. Hogueland for respondent.
(1) No case was made by plaintiff. This is a negligence case. Levi & Co. v. M.-K.-T. Ry. Co., 157 Mo.App. 536 (l. c. 543); American Brewing Ass'n v. Talbot, 141 Mo. 674; McKeever v. Kramer, 203 Mo.App. 269; Viviano v. Davis, 258 S.W. 69; Southern Railway Co. v. Prescott, 240 U.S. 632, 60 L.Ed. 836; Carscallen v. Lakeside Highway District, 260 P. 162. Discussion of cases cited by plaintiff. No proof of negligence in this case. Cox v. St. L.-S. F. Ry. Co., 9 S.W.2d 96; Dunlap v. C., R. I. & P. Ry. Co., 145 Mo.App. 215. (2) Alleged error in court's exclusion of testimony not before court on this appeal. Yarborough v. Wisconsin Lumber Co., 211 S.W. 713. (3) The court erred in giving plaintiff's instruction No. 1. Robinson v. M.-K.-T. Ry. Co., 123 S.W.2d 624; Annin v. Jackson, 340 Mo. 331, 100 S.W.2d 872; Watts v. Moussette, 337 Mo. 533, 85 S.W.2d 487.
Plaintiff brought this suit to recover the value of a Dart Semi-Trailer leased by his assignor, Walters Truck Line, Inc., to the defendant, upon the theory the defendant was a bailee and negligently failed to return the trailer after return had been demanded.
On trial with a jury the plaintiff had a verdict and judgment for $ 1200. The defendant's motion for new trial was sustained on the ground the court erred in refusing defendant's request to have verdict directed for it. From that order the plaintiff has appealed.
The petition charged that the trailer, while in the possession and control of defendant, was destroyed in a manner unknown to plaintiff; that defendant failed to exercise ordinary care to return the trailer to plaintiff and has refused and failed to deliver the same or to pay its value to plaintiff, although return was demanded.
The answer alleged that on or about February 17, 1937, Walters Truck Line entered into a lease with defendant by the terms of which it leased to defendant the trailer described in the petition; denied the trailer was delivered by plaintiff to defendant; denied the trailer was in the sole possession and control of the defendant at the time it was destroyed; denied it was of the reasonable market value of $ 1600; and denied return of the trailer had been demanded by plaintiff.
The answer further charged the trailer was destroyed by fire of unknown origin; that at the time of said fire the trailer was in the possession and control of plaintiff, his servants or employees, or in the possession and control of the Walters Truck Line, its servants and employees.
The answer concluded with a general denial.
The reply charged that if the trailer were destroyed, as alleged in the answer, the destruction resulted from the failure of defendant to exercise due care.
The evidence for the plaintiff was to the effect that his assignor by contract in writing leased the trailer to the defendant for a period of one year from February 17, 1937; that the trailer was of the value $ 1600, and that plaintiff had no knowledge of the alleged destruction of the property.
As the answer charged the trailer was destroyed and therefore could not be returned, we need not concern ourselves with the question of demand for the return of the property.
R. L. Swinney, for the defendant, testified he and Alfred Harris drove a tractor which hauled the trailer from Kansas City to Chicago; that the "outfit" was serviced in Chicago and was in good condition; that on the return trip, and when some 75 miles out of Chicago, Harris called his attention to the fact smoke was emanating from the right back wheel or tires of the trailer; that thereupon he stopped, obtained a fire extinguisher, which he carried, and endeavored to extinguish the fire but was unable to do so, and in consequence the trailor was entirely destroyed. This witness further testified that he could not ascertain whether the smoke came from one or the other or both of the dual tires of the trailer because there was "so much smoke;" that if the trailer were operated for "so long a time on a concrete highway" with the dual tires flat, friction would cause the tires to burn; that if the dual tires became flat while traveling on a concrete highway, the condition would become known to him by the swaying of the trailer or by the noise "it makes;" that prior to the time he stopped there had been no indication of a flat tire. This witness further testified that after he got out of the truck he raised the wheel of the trailer with a jack, started to take a lug off the wheel, when the tires "busted out into flames."
The driver, Harris, died shortly before the trial.
The plaintiff's evidence shows the trailer was in good condition when it was delivered to the defendant; that, thereafter, the trailer was in the exclusive possession and control of defendant under a contract of bailment. The petition charged the trailer was destroyed in a manner to plaintiff unknown. The answer admitted the trailer was destroyed and alleged the destruction was due to fire of unknown origin.
The plaintiff claims these facts made a prima facie case under the res ipsa loquitur doctrine and entitled him to have the cause submitted to the jury, notwithstanding the evidence of the defendant was sufficient to support a finding that the loss was not due to its negligence. The petition charged general negligence. The evidence showed a bailment of the trailer; that the trailer, while in the exclusive possession and control of the defendant, was destroyed by fire. It has been decided that the res ipsa loquitur doctrine applies in a bailment case. [Freeman v. Foreman, 141 Mo.App. 359, 125 S.W. 524; Austin v. Simon, 204 S.W. 193; Hartford Mining Co. v. Tabor, 21 S.W.2d 207.]
When a plaintiff has made a case under the doctrine res ipsa loquitur the case must be submitted to the jury "notwithstanding the evidence (oral), however probative given in rebuttal on...
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