92 Wash. 105 | Wash. | 1916
The plaintiff seeks recovery of damages which it claims to have suffered as the result of the defendant’s negligence in allowing a quantity of eggs, placed in its custody for cold storage, to become tainted with a foreign and unnatural flavor, thereby rendering them unsaleable as first-class storage eggs. Trial in the superior court sitting with a jury resulted in verdict and judgment awarding plaintiff damages in the sum of $578.59, from which the defendant has appealed to this court.
Respondent, Perry Brothers, is a corporation engaged in the produce business in the city of Seattle. Appellant, Diamond Ice & Storage Company, is a corporation engaged in the cold storage business, maintaining its plant and warehouse in the city of Seattle. On May 22, 1914, one I. L. Strong, having received at Seattle a carload shipment of eggs from the Henningsen Creamery Company of Minot, North Dakota, entered into a contract with appellant for the placing of the eggs in cold storage in its cold storage warehouse. The eggs, consisting of four hundred cases, were accordingly received and placed in cold storage by appellant, excepting twenty cases thereof, ten cases being retained by Strong as samples for the purpose of testing their quality and ten cases being rej ected by appellant as not suitable for storage because of the damaged condition of the cases and the breaking of some of the eggs therein, evidently occurring in shipment, which ten cases were turned over by Strong to respondent for sale upon his account. On May 29, 1914, Strong sold the stored eggs to respondent and also
It is first contended by counsel for appellant that the superior court erred in overruling the general demurrer to- respondent’s complaint, the allegations of which, so far as we need here notice them, are as follows:
“That at the time said contract above referred to was executed and at the time that said carload of eggs were delivered to and received by the above defendant for cold storage the said eggs were in good grade, sweet and first class.
“That owing to the negligence of the defendant all of said eggs while thus stored and in the custody and control of said defendant became tainted with a foreign and unnatural flavor and rendered unsaleable as first class storage eggs.”
Prior to the filing of the demurrer by counsel for appellant, they moved the court to require respondent to make its complaint more definite and certain as to the particular acts of negligence on the part of appellant which caused the eggs to become tainted with the foreign and unnatural flavor. The court granted this motion, when counsel for respondent filed response thereto as follows:
“In reference to the specific acts of negligence constituting the acts of negligence alleged in plaintiff’s complaint, plaintiff herewith states that it has no knowledge of any of said specific acts and has no means of obtaining knowledge thereof, and further that the said acts are within the knowledge of the defendant only.”
The trial court, in overruling appellant’s demurrer, manifestly read the above quoted allegations of the complaint together with this response to its order, as a part of the complaint. These allegations of fact, it is insisted by counsel for appellant, do not sufficiently plead negligence of appellant. It seems to us that the overruling of the demurrer by
It is contended that the evidence is insufficient to sustain the verdict and judgment. It seems to be conceded that these four hundred cases of eggs were the accumulation of a promiscuous gathering of eggs produced in the neighbor
In September, 1914, about four months after the eggs were received and placed in cold storage by appellant, respondent commenced to take them out, and so continued from time to time during the fall of that year, when it was discovered that the eggs had acquired a foreign and unnatural odor or flavor, though they showed no evidence of decay or natural deterioration, being in outward appearance, and also as appearing when candled, suitable for the market as first-class storage eggs. But because of this foreign and unnatural flavor, respondent was compelled to sell them at a very much reduced price. No contention is made here as to the extent of the loss to respondent from this cause, the contention being only as to appellant’s responsibility therefor. The flavor or odor with which the eggs had become impregnated was described by at least, one witness as of a “fruity” character; others seemed hardly able to describe it other than that it was some odor foreign to eggs. One witness testified to the existence of a “fruity” odor in the room where the eggs were stored, and other eggs stored a portion of the same time in the same room came out impregnated with the same odor as respondent’s eggs had acquired. It is conceded that eggs are susceptible to becoming impregnated with foreign odors, especially fruit odors with which they may come in contact, seriously damaged thereby, and for that reason it is very necessary that they be stored in a room by themselves so as to be free from such foreign odors.
“We examined this car just the same as we examined any others. We passed it as to the cases looking all right and apparently in good shape. We found nothing apparently damp about them. We found no smell or odor in any way except what is ordinary with a car of eggs. We set out ten cases as being broken. We found nothing wrong except these ten cases. We selected the ten cases from the three hundred ninety cases that were in the car. Those ten cases were the only ones in the entire car that gave any indication of being a poor storage proposition. When they came out of our plant they had this strong smell to them. I did not see any mold on these eggs. The fillers were not apparently damp when they came out. The eggs looked all right. We candled some of these eggs. There would be some rotten eggs in a case. There are always some. You take a case of eggs coming in from the country, claimed to be strictly fresh, nice eggs, you will find that lots of eggs in that case are rotten. That is true of all commercial eggs. These eggs before the candle looked a very good grade of storage eggs, as you would expect to find in storage eggs at that time of year. My idea would be that the eggs were contaminated with the smell of this strawboard filler.”
Passing, for the moment, the question of the admissibility of certain of the testimony tending to show the good condi
It is contended that the trial court erred in admitting proof of the condition of the twenty cases of eggs as shown by their examination when taken from the car. In this connection, it is also contended that the trial court erred in admitting the testimony of two witnesses as experts who were experienced in handling and testing eggs, to the effect that, in their opinion, the examination of the twenty cases of eggs taken from the four hundred case lot, as these twenty cases were taken, would constitute a fair test as to the quality of the whole four hundred cases. The argument is, in substance, that the condition of the twenty cases of eggs so examined and tested was inadmissible as evidence tending to show the condition of the three hundred eighty cases received and placed in cold storage by appellant; and that, in any event, if admissible, it was not proper to allow expert testimony as to the fairness of such testing of the quality of all the eggs. Having in mind the fact that the real contention here has to do with the question of the eggs becoming impregnated with a foreign flavor or odor, we are- constrained to hold that neither the showing as to the condition of the twenty cases of
One Klock was permitted to testify to the effect that certain eggs belonging to him stored in the same room with respondent’s eggs in appellant’s warehouse came out impregnated with the same odor or flavor as respondent’s eggs. The admission of this testimony is claimed by counsel for appellant to have been erroneous. The argument seems to be that the evidence was improperly admitted because it was not shown in what condition Klock’s eggs were when they went into the room with respondent’s eggs. We are unable to see why this fact should exclude Klock’s testimony as to the foreign flavor or odor possessed by his eggs when they came out of that room. That was some evidence tending to show the presence of a foreign or unnatural flavor or odor in that room with respondent’s eggs. Even if Klock’s eggs were so impregnated when they went in, as counsel for appellant seems to think ought to have been first shown, it would not change the fact of respondent’s eggs having acquired such unnatural flavor or odor while there. This would not weaken the presumption that appellant was re
It is contended that the trial court erred in permitting, over the objection of counsel for appellant, A. P. Henningsen, the president of the Henningsen Creamery Company of Minot, North Dakota, to testify in a general way as to the manner of that company acquiring, packing and shipping eggs at that time of the year. He testified in substance, that at that time of the year they shipped only number one eggs from that section of the country; that no others could be then had there; that usually the eggs were gathered and concentrated at the point of shipment and there packed in cases with fillers, with the small, dirty and cracked eggs thrown out; that at that time of the year they would pack an average of a car a day or sometimes a car every two days and immediately ship them. Upon cross-examination, it developed that Mr. Henningsen was not at Minot, North Dakota, when this car of eggs was collected and shipped to Strong at Seattle; hence, so far as his testimony relates to this car of eggs, it would have to be regarded as hearsay, and this was the ground upon which counsel for appellant sought to have all his testimony excluded, motion to that effect being by the court denied. Viewed in the light of technical rules of evidence, there is probably some ground for exclusion of a large portion if not all of this testimony. It can hardly be said, however, that any of it was hearsay, since it relates to the general course of business of his company with which it is to be presumed he, being its president, must have been acquainted. While this testimony seems to have some bearing upon the question of the natural quality of the eggs that company was accustomed to ship at that time of the year from that point, it hardly touched what is manifestly the real question here in issue; that is, whether or not the eggs here in question were, at the time they were placed in cold storage, attended with any foreign flavor or
Some contention is made in appellant’s behalf that the court erred in allowing impeachment testimony to be introduced tending to impeach its witness Q. Peniston, its manager, on a collateral issue. Reading the testimony of Peniston given upon cross-examination and the claimed impeaching testimony thereon given by Strong, we conclude that Strong’s testimony must be regarded as of so slight an impeaching character as to not call for serious consideration from us as a ground for reversal of the judgment. It was brought out on the cross-examination of Peniston that appellant, as he stated, had never permitted fruit to be stored in any of its rooms with eggs, except on occasions when the owner of the eggs expressly consented in view of the fact that his eggs were to remain but a short time and that this was done one time in connection with the storing of eggs for Mr. Strong for a short time. The claimed impeaching testimony given by Mr. Strong was to the effect that he had not consented to the storing of eggs with fruit at the time mentioned. Plainly, this is of too small consequence to warrant reversal of the judgment, though it may be that the impeaching testimony was technically erroneously received.
Claim of error is made upon the giving of certain instructions by the trial court and the refusal of it to give others requested by counsel for appellant. So far as the requested instructions are concerned, they were given in substance by the court, though in different language. As to the instructions given by the court, we think it sufficient to say that they, as a whole fairly and fully covered the issues, in keeping with our decision in Smith v. Diamond Ice & Storage Co., supra. The error so claimed involves the question of law and presumption of negligence above noticed by us in disposing of
We do not discover any prejudicial error in the record, and are therefore constrained to affirm the judgment. It is so ordered.