| Okla. | Sep 4, 1896
The opinion of the court was delivered by It is contended by the plaintiff in error that under the provision of the contract that the plaintiff was to "deliver the safe on board the cars at Canton, Ohio," that the plaintiff discharged its whole duty by placing the safe on board the cars, and that it was not required of it to properly fasten the safe on the cars, for that would require the plaintiff to do something not stated in the contract, and that the contract provides that "no agreement of any kind not stated in this order shall become a part of this contract."
Evidence was adduced tending to show that the safe upon being placed upon the cars by the plaintiff was crated and fastened opposite and near a bolt or bolts which protruded from the side of the car, and that by rubbing against this bolt or bolts the holes were produced during the transit of the safe, which constituted the damage complained of.
The court instructed the jury upon this point, that:
"5. If you find from the evidence in this case that the plaintiff agreed to place this safe upon the cars at its factory, and took upon itself the burden of so placing the safe upon the car and loading it therein and preparing it for shipment, and if you further find that the plaintiff was negligent in placing the safe in the car, and by reason of such negligence the safe was injured while in transit from the factory to Wharton, then, and in that case, the plaintiff would be liable for such damage as occurred *485 by reason of the failure of the plaintiff to properly load the safe for shipment from its factory to the place where it was to be delivered, at Wharton.
"6. If you find from the evidence that the plaintiff undertook to load this safe, then it was the duty of the plaintiff to so place that safe in the car and so protect it from injury as would be ordinarily sufficient protection to insure its safe transit, but would not be liable for any injury to the safe occurring out of any accident which might happen to the railway cars or company or track over which this safe was being carried, but would be liable for such injury as resulted by reason of its being improperly placed in the car, to insure its proper and safe passage from its factory to the station of Wharton.
"7. If you find from the evidence in this case that this safe was loaded in the car at a point near one end of the car, and adjacent to bolts projecting from the end of the car and by reason of such fact the safe in question was injured, then and in that event the plaintiff would be liable for the loss." * *
We think there was no error here. The proper loading of the safe was the duty of the plaintiff and not of the defendant, who resided too far from the point of delivery to either inspect the thing ordered or the method of its delivery. It was the duty of the plaintiff to place the safe on board the cars in a proper manner, and the evidence shows that the plaintiff did undertake the duty of packing or storing the safe, and in doing so, it was incumbent upon it to do so in such a manner as that the storing itself would not be the cause or lead to injury.
It is again argued by the plaintiff that improper testimony was admitted upon the measure of damages, inasmuch as the witnesses, Knauss, Swiler, Stowe and the defendant himself were sworn as experts not having shown the proper qualifications.
Knauss testified that he had bad two years experience in buying, selling and handling fire proof safes, and that *486 he thought "one hundred dollars would be small enough for the damages. A safe that has been damaged is so depreciated in value to a great extent, and sometimes is almost unsaleable."
Swiler testified that he had been in the hardware business twenty-five years, and had been buying and selling fire proof safes for twenty-three or twenty-four years; that he had examined the safe in question and "didn't think the safe would answer as a fire proof safe in the condition it was in, for the reason that the filling must be kept air tight, and the saltpeter, if it is left open, will evaporate if the air gets into it." And that, "the damages now I would state would not be less than seventy-five dollars," and don't think that it could be sold for much less than cost.
Stowe testified that he had handled burglar and fire proof safes for eleven years, during which time he had "used, handled, bought and sold them;" that he had examined the safe in question, and thought its market price was "damaged nearly one-half what the safe was worth."
While the defendant's testimony was that he had been in the jewelry business about eight years and had, during that time, used five different safes, and that he didn't "think that the safe was worth over half what it was before the holes were punched in it."
We think this testimony was competent and proper to be admitted to the jury.
It is contended by the plaintiff in error that the tender set up in the amendment to the answer was insufficient. To this it must be said that no objection was made to the form of the tender at the time it was made, and that the allegation in the amendment was sufficient to admit the testimony on that point, a part of which was produced *487 in the cross-examination of the defendant upon the question proposed by the counsel for the plaintiff:
"Ques. Do you remember about what time that was, Mr. Holt, that yon made that tender; I remember the tender being made; I know I came to your place of business and I think you offered me — I think it was all over one hundred dollars — is that correct? Ans. It was the amount, two hundred and twenty-five dollars, less the freight charge and one hundred dollars, which would make it seventy some dollars, I think."
No objection was made by counsel for plaintiff in error to any insufficiency in the pleading of the tender, at the time of the trial. It is too late to take advantage of it for the first time after judgment.
It is contended by the plaintiff in error that the filing of the amended answer during the trial by leave of the court, completely changed the issue in the case, and that a new defense was set up entitling the defendant to a continuance upon application to the court.
The case was tried under the Code of Civil Procedure of 1890, which provides that, § 4433, p. 819:
* * "No cause shall be delayed by reason of an amendment, excepting only the time to make up the issues, but upon good cause shown by affidavit of the party or his attorney asking such delay."
Section 4434 provides:
"The affidavit shall show distinctly in what respect the party asking for the delay has been prejudiced in his preparation for trial by the amendment."
No such affidavit was filed by the plaintiff, nor was there any error in refusing to delay the case by reason of the amendment to the answer.
We find no error in the case and judgment of the court below will be affirmed.
Dale, C. J., who presided in the court below, not sitting; all the other Justices concurring. *488