100 Ind. 8 | Ind. | 1885
The appellants, David M. Adams and James C. Adams, doing business in the firm name of the Adams Packing Company, were, during the summer and fall of the year 1881, the proprietors of a warehouse in the city of Indianapolis, containing what was known as 'a “ cold storage' room,” claimed to be, amongst other things, specially adapted to the storage of eggs and butter. The appellee, John E. Sullivan, was, during the same period of time, in the general produce business in the same city, which included the purchase, handling and sale of eggs and butter. Commencing on the 8th day of June and ending on the 5th day of September in said year 1881, Sullivan deposited'in the cold storage room in question the aggregate amount of two hundred and twenty-nine barrels of eggs and fifty or more tubs of butter for safe-keeping. When Sullivan withdrew these barrels of eggs and tubs of butter for sale and consumption late in the fall, he claimed to have found them 'all in a more or less damaged condition, and this action was instituted for the alleged failure of the appellants to take proper care of the eggs and butter while stored in their warehouse. Verdict for the plaintiff at special term, assessing his damages at the sum of $897.50. New trial denied, and judgment on the verdict. Judgment affirmed at general term.
As regards the eggs, the manner in which they were handled, .stored and prepared for market, was first shown by the evidence. It was in this way made to appear that when eggs were gathered in either by wagons or from shipments by railroad, they were put into a dark room, where they were examined and tested by an employee of - the plaintiff known to-
A young woman was book-keeper for the plaintiff during the summer and fall of 1881, and as a witness in his behalf first testified to and explained the manner in which the number and quality of the eggs stored in the warehouse, as well as their condition after they were withdrawn,,were reported to her, and to the disposition made of the slips of paper from which she made entries in the books in her charge. She was then asked: “ From these reports you may state what number of good and what number of bad eggs were * * * stored in the Adams Packing House ? ” This question was objected to by the defendants, but the witness was permitted to answer it, giving the aggregate number of the good eggs, as well as of the bad eggs, as they had been reported to her.
General footings, or aggregate amounts, may be testified to by a witness who is familiar with them, for the purpose of "testing the accuracy of more detailed statements in the evidence, or when necessary to make out a merely prima facie case. Thornburgh v. New Castle, etc., R. R. Co., 14 Ind. 499; 1 Greenl. Ev., sections 117, 118, 119 and 120. There was no error, therefore, in permitting the question to which objection was made to be answered.
One Eoster was candler for the plaintiff at the time the •eggs were examined and packed in barrels preparatory to being stored in the warehouse, and he testified to having had eight or nine years experience as a candler, and in the handling of eggs, He was not called as an expert, but was examined as to the number and quality of the eggs which went into the warehouse, and as to facts generally coming to his knowledge while in the plaintiff’s employment.
The defendants, at the proper time, called one Budd as a witness, who testified that he had been in the business of buying, handling and selling eggs and butter for twenty-one years; that he was acquainted with Eoster; that he had had Eoster in his employment three or four years previously.
One Neal was also a candler fpr the plaintiff when a considerable part of the eggs were examined and assorted, after they were withdrawn from the warehouse. He testified to-having had experience as a candler of eggs, and to the general condition of the eggs and barrels containing them which he examined.
Budd further stated that he was acquainted with Neal personally ; also, with Neal’s reputation amongst his neighbors; and business associates as a candler and handler of eggs. The defendants then offered to prove by Budd that Neal’s, reputation in that respect was bad amongst his neighbors and those having business associations with him, but the court refused to permit the proffered proof to be made, upon the-ground that such proof was not admissible, either to show Neal’s incompetency or to impair the value of his testimony.. When a person is admitted to testify as an expert merely, the manner in which, and the extent to which, his competency as an expert may ,be questioned, is a subject upon which there is some obscurity in the authorities, but, although, referred to in' argument, the subject is one not directly involved in the proper decision of this cause. Laros v. Commonwealth, 84 Pa. St. 200; Ordronaux Jurisp., section 117; Whart. Crim. Ev., section 409.
Proof of reputation, as a general rule, applies only to the relations which a party sustains in some respect to the public, and to such things as, from their very nature, are ordinarily incapable of the usual means of proof, such as pedigree, re
One of the instructions given by the court to the jury, known as No. 8, first enumerated many circumstances which they ought to take into consideration in assessing the plaintiff’s damages, in the event that they found for him, and concluded as follows: “The plaintiff is, however, entitled to recover the highest market price he could have obtained at the time of the injury for the goods, had the defendants fully performed their duty and properly preserved the goods during the time they were bound under their contract to keep them in storage.”
There is some obscurity in the phraseology of this instruction, when considered with reference to its application to the evidence, but we construe so much of it as is set out above, when taken in connection with what preceded it, to have meant that in making up the amount of damages, in the event of a finding'for the plaintiff, the eggs should have been estimated at the highest market price which the plaintiff could have obtained for them, whether by shipment or otherwise, at the time they were injured.
The authorities bearing directly upon the' question in
The rules for the assessment of damages in actions of trover, for breach of a contract to be performed at a particular place, and for injuries to goods in transitu by common carriers, concurrently sustain us in the conclusion we have reached, adverse to the correctness of the instruction set out in part as-above. Besides, when the market is fluctuating and the precise time somewhat indefinite, the average range of prices about the time inquired of affords the proper standard of the market value of a commodity. 2 Sutherland Dam. 374.
Various general and, in some instances, hypothetical questions were asked of witnesses by the defendants concerning the business of buying, handling and storing eggs, which tended, in a greater or less degree, to test the accuracy of some of the statements made by witnesses for the plaintiff, but were held to be improper questions by the court. We will not attempt to set out, or comment in detail upon, any of those questions, as the judgment must, at all events, be reversed.
It is sufficient for our present purpose to remark that, in our opinion, some of those questions were erroneously excluded, and that, in consequence, the defendants were not, in some instances, allowed the latitude to which they were entitled in their efforts to break the force of some of the testimony produced against them.
The judgment at general term is reversed, with costs, and the cause remanded with instructions to reverse the judgment at special term.