259 Mo. 664 | Mo. | 1914
Plaintiff, a corporate manufacturer of hen’s egg product, in 1905 stored the rise of two hundred barrels of it with defendant, a corporate warehouseman, as a bailee for hire at five cents a barrel per month. Water damaged the product in July, 1905. Thereat plaintiff sued in the Greene Circuit Court laying its damages at $18,611.46 for negligence. Presently plaintiff took a change of venue to the Webster Circuit Court. Presently defendant, in turn, took a change of venue to the Laclede Circuit Court. In that court plaintiff obtained a verdict of $12,000 in August, 1910. Failing to obtain a new trial on a timely motion, judgment followed. Failing to arrest the judgment on a timely motion, defendant on apt steps and in due time appealed.
Errors assigned are of a scope and character seeking a summary of facts, pleadings and instructions.
The pleadings.
After conventional allegations anent the incorporation of both parties under the laws' of Missouri, the business of defendant as a public warehouseman for the storage of goods and products for hire, the storage by plaintiff of crystallized eggs at a stipulated hire of five cents per barrel per month, the value of the product, that it was of a character and nature making it necessary to keep it in a cool and dry place free from contact with water (and that water would ruin it),' the knowledge of defendant of such facts, and the duty of defendant to use care and diligence in the premises, the petition complains of defendant as follows:
*678 “Plaintiff further states that on or about the said 26th day of July, 1906, while its said goods were so stored with defendant, and kept by defendant in the basement of said warehouse, the basement of said warehouse containing said goods was flooded by water and said crystallized eggs of plaintiff came in contact and were saturated therewith and were greatly injured and damaged thereby; that defendant was warned of the danger and knew, or by the exercise of ordinary care and diligence in the discharge of its duties with respect to the storage of said eggs, could have known that its said basement, where the goods were kept, was flooded or being flooded with water and that said eggs were coming or liable to come in contact and be saturated therewith, in time to have removed the same to a place of safety and prevented the injury and damage aforesaid, which defendant by the exercise of ordinary care and diligence could have done and that said injury and damage to said crystallized eggs was caused by the negligence of defendant in the following particulars :
“1st. By its negligence in failing and refusing and neglecting to move said two hundred and thirty-nine barrels or any part thereof, containing said eggs, to an upper floor in said warehouse in a place of safety from said water, in which said upper floor there was then abundant room for said eggs, or to move same to some other place of safety, which defendant could have done after it knew of the imminent danger that threatened said eggs by the flow or accumulation of water in its said basement, by the exercise of ordinary and reasonable care and diligence in the conduct of its business.
"2nd. By its negligence in not removing said eggs from the basement of said warehouse to the upper floor thereof, where there was abundant room to store the same or to move the same to some more safe and suitable place during the long interval of time, amount*679 ing to some seven or eight hours, which elapsed after said defendant received notice that the water was liable to invade its said basement, and destroy, injure or damage said eggs and before said damage was done.
“3rd. By its negligence in failing to provide and maintain a safe and suitable place to store said eggs,- and by its failure to provide the room or place in which said goods were stored with proper safeguards to prevent surface water and other water from flowing into said place where the goods were stored as aforesaid.”
The answer admitted defendant’s incorporation and denied generally the other allegations of the petition. Following such general denial was a plea of assumption of risk, in that plaintiff at the time of the storage and long prior thereto had notice and knowledge of the character and construction of defendant’s warehouse and of its location and surroundings “and by reason thereof assumed all risk incident to and flowing from such construction, location and surroundings.” Following such plea was another in the nature of a defense of contributory negligence (or, volenti non fit injuria) in that plaintiff had knowledge of the character and constituents of the egg product described in the petition, but defendant had not; that after such product came in contact with water plaintiff could have avoided the injury and damage by reason of such knowledge but failed and neglected to properly care for said product, and the injury and damage suffered was due and owing to the failure and negligence of plaintiff to care for the product and not from its original cantact with water as alleged.
The reply put in issue the new matter in the answer.
The facts.
As the Arno splits Florence, even so Springfield is built on either side of a stream known locally as the “Jordan,” which, like its sacred namesake, “swells its banks” now and then. This Jordan is either tributary
It seems that defendant’s method of conducting its business on ordinary occasions was to close down
There is practically no dispute in the record but that the market price of plaintiff’s product at Springfield (f. o. b.) was from forty-two to forty-eight cents per pound, depending on its grade. It was made of hens ’ eggs. In 1905 the price of eggs varied through the spring and summer. Hens living in a grain district lay eggs with more albumen and such are of more value than eggs from hens having no access to grain. So, April eggs have more nutrition than June and July eggs. So it seems (but this part of the record may be a mere cackle of State pride) an Arkansas hen does not lay as good an egg as a Missouri hen. It seems that by having reference to these conditions and its source of supply plaintiff’s product varied in price as suggested. Plaintiff’s egg product was produced by process of breaking the eggs, mixing them into a batter, spreading this batter on poplar boards and then driving over the mixture a current of air which took out the water, say seventy per cent of the total, and then thoroughly drying the residuum and grinding or breaking it into a flour or crystals, It wag
Defendant had in its employ a man who had charge of this storage department, one Grant Trammel. He testified for defendant and calls himself “receiving clerk at the cold storage plant.” He says his duties were “to receive stuff, check the things in and out, and [he says] I attended to those duties.” He had men working under him. Plaintiff had stored with defendant egg products at times not involved in this suit, and, in regard to that product and to this in question, plaintiff only came in contact with Mr. Trammel as the sole person in charge for defendant. Trammel issued drayage tickets or receiving receipts and accepted and supervised the storage of the goods for defendant. When goods were called for, to be taken out, those receipts would be presented to Trammel and he took them up for defendant on delivery by him of the full amount named in the ticket, or credited on the ticket a partial delivery, as the case might be. In a considerable course of dealings between plaintiff and
On July 26, 1905, commencing in the morning at about ten o’clock, there was a great rain in Springfield and in the valley of the Jordan and adjacent regions. Since that time there has been one heavier downpour, but for twenty-five years before that time there had been no record of such a great rain. The water on the streets in the afternoon is spoken of as a “flood sheet.” The rain is spoken of as “unprecedented.” The Springfield Court of Appeals on the same facts (143 Mo. App. l. c. 449) speaks of it as “torrential.” If dignified judicial exposition ever tolerates the similitudes of the firesides of plain folk, the rain may be described as something more than a “gully-washer” or “trash collector,” but something less than a cloudburst or a water spout. A block or so away from defendant’s plant lies the Frisco passenger depot, and in the afternoon passengers were- carried from and to the cars at that depot in railway trucks. One witness speaks of the downpour at one time in the afternoon as carrying everything before it on the street. This rain was a seven-hour continuous downpour, to-wit, from ten a. m. to five or five-thirty in the afternoon. It then slacked up and the waters on the street receded a bit. However, there was testimony that at six p. m. there was another heavy rain in the valley and city, but whether that six p. m. cloud overhung defendant’s plant is not so clear. However, commencing again at about eight and a half p. m. the heaviest down
Defendant put in proof tending to show that after the 1905 disaster it put in a device or “plug” to keep out the back flow of sewer water, that finally there came a greater flood a bit before the trial, and, with this plug in, the water burst into the basement through the seams of the cement floor.
The tendency of the proof was to show that plaintiff was practically ruined by its loss and its owners eventually were set afoot.
Other goods were damaged in the basement, and defendant’s liability on substantially the same facts was adjudged in a case found reported in the 143 Mo. App. 441 (Johnson & Co. v. Springfield Ice, etc., Co.).
Defendant’s counsel made objections to the introduction of testimony on the part of plaintiff which
The instructions.
The case 'was put to the jury on behalf of plaintiff in the following instructions:
“1. The court instructs the jury that if you find and believe from the evidence that on and prior to the 26th day of July, 1905, defendant was engaged in operating a warehouse in the city of Springfield, Missouri, and storing goods for hire and that while so engaged prior to and on said date plaintiff had stored in defendant’s said warehouse for safekeeping two hundred and thirty-nine barrels of crystallized eggs upon which it was to pay storage of five cents per barrel, per month, and that while said eggs "were so stored by defendant, the basement or room in which they were stored was flooded with water which came in contact with said eggs and damaged them, and that defendant, its agents or servants in charge of said warehouse, knew that water by coming in contact with said eggs would damage or ruin them; and if you further find from the evidence that during said 26th day of July, 1905, a heavy and extraordinary rainfall at said place produced a great flood of water, which caused said basement or room where said eggs were stored, to be in danger of becoming flooded with water and said eggs to be in danger of coming in contact therewith, and that defendants or its agents and servants were warned or knew of said danger, or, if you find from the evidence that they could have known thereof by the exercise of ordinary care on their part and that defendant could have then by the exercise of ordinary care and diligence removed said eggs to a place of*688 safety and prevented said injury or damage to them and failed to do so, and that by reason of said negligence and failure of the defendant said eggs became damaged or ruined, your verdict should be for the plaintiff.
“2. The court instructs the jury that if you find in favor of the plaintiff your verdict should be for the difference between the reasonable market value of the crystallized eggs stored by the plaintiff with the defendant in the damaged condition on the date of the damage and the reasonable market value thereof at the time, if they had not been damaged, and you are further instructed that if you find from the evidence that any of such crystalilzed eggs were totally ruined, then your verdict should be for such sum as you shall believe from the evidence was the reasonable market value of such crystallized eggs at the time they were so ruined.
“3. The jury are instructed that ordinary care, effort and diligence as the terms are used in these instructions mean such care, effort and diligence as a person of ordinary sense or prudence engaged in the same business or similar business might reasonably be expected to use under the samé or similar circumstances.
“Nine of your number concurring,” etc.
It was put to the jury on defendant’s behalf in the following instructions:
‘ ‘ 1. The court instructs the jury that from the evidence the defendant would not be liable to the plaintiff for any damage for the food stored with the defendant unless it was guilty of negligence with respect to said property, and plaintiff cannot recover unless it has shown:
“First, that at the time complained of there was an extraordinary and unusual rainfall in the vicinity of its storage building;
*689 “Second, that the defendant knew or by the exercise of reasonable care and caution would have known that there was danger that such rainfall would cause water to enter into its basement and damage said goods;
“Third, that after knowledge of such danger or by the exercise of reasonable care and caution it would have known of such danger, it could by the exercise of reasonable diligence have removed said goods to a place of safety and prevented damages.
“It devolves upon the plaintiff to establish these facts by a preponderance of the evidence.
“2. A preponderance of the evidence does not mean by a greater number of witnesses, but that the evidence introduced to establish such facts must be stronger and more convincing than the evidence to the contrary.
“3. Ordinary care, foresight and diligence as the terms are used in these instructions mean such foresight and diligence as a person of ordinary sense or prudence engaged in the same business or similar business might reasonably be expected to use under the same or similar circumstances.
“4. In determining the question as to whether or not the omission of the defendant to remove said goods from the basement was negligence you should take into consideration all the facts and circumstances in evidence. The mere fact that the basement was flooded and the goods damaged thereby are not sufficient to establish such negligence, but it devolves upon the plaintiff to further show that after such rainfall the defendant knew or by the exercise of reasonable care and caution would have known that there was danger of water entering into said basement and causing, damage to said goods.
“5. You are instructed that statements of counsel and offers by counsel to prove certain facts are not*690 evidence and should not be considered by you in reaching a verdict in this case.”
Defendant prayed and was refused twelve instructions, which, so far as necessary, will be noticed in the course of the opinion.
I. Of the sufficiency of the petition.
Defendant, objecting to the introduction of any testimony on a conventional ground and the court overruling the same, on exception saved to that ruling, assigns error. The point is made that on its face the petition shows the damage sprang from that form of vis major or vis divina called in the boohs “an act of God” by way of figure of speech.
That ruling we think flawless. True, as argued, plaintiff is not suing strictly ex contractu — i. e., on the contract of bailment. He does not stand on that contract and by pleading a delivery of the goods, demand of redelivery, tender of the storage price and a failure to redeliver, assert the contract was breached, whereby the burden of justifying and excusing non-delivery might rest on the bailee. Contra, the suit is ex delicto for damages for negligence, plaintiff holds the laboring' oar, and the contract is pleaded somewhat by way of inducement. Hence thé petition must be judged of from the angle that it sounds in tort with specifications of negligence. In that view of it the vigor and long continuance of the tremendous rain are pleaded by way of environment, a condition of things, and a warning notice to defendant of reasonable danger to be apprehended from the insidious encroachment of water, which due care could and should guard against. Now, due care is a care shifting up or down with circumstances. Due care rises or sinks with the gauge of danger and with the quality of the thing to be taken care of. It is folly to expect the same care to be taken of a brick as of a watch. With reference to water, it would be folly to expect the same care to be taken of a
It is uniformly considered good doctrine that if A and B negligently injure C in person or property, C may recover from one or both. If, now, B happens to be an inanimate thing, a force like the act of God, then C may still recover against A if his negligent act was so mixed with the act of God as a proximate cause of the damage, that it would not have resulted if due care had been exercised by A.
In Benton v. St. Louis, 248 Mo. l. c. 111, the following apposite pronouncement was made:
“There is no bone to he picked in a forum of reason with the abstract proposition that liability cannot he predicated of an injury resulting alone from the act of God, say, a holt of lightning, a cyclone, a cloudburst, an earthquake. Nor can actionable damages he predicated of an injury entirely disconnected in cause and effect from the concurrent negligence of defendant and solely referable to any other form of vis major or vis divina. But the vice in the instruction is that it is not applicable to the facts of this record. Here there were acts of negligence on the part of the city com-' mingling with the heavy rainfall and the condition resulting from this cbmmingling of negligence and storm caused the death of George Benton. On principle it must be apparent where there is negligence which contributes as one proximate cause to the injury, which injury would not have resulted from the act of God, or from some chance case (vel camus fortuitus), except for defendant’s negligence thereto contributing, defendant is liable. [Brash v. St. Louis, 161 Mo. l. c. 437 et seq., and cases cited; Woods v. Kansas City, 58 Mo. App. 272; Bassett v. St. Joseph, 53 Mo. 290; Lore v. Am. Mfg. Co., 160 Mo. l. c. 626; Vogelgesang v. St. Louis, 139 Mo. l. c. 136.] ”
It must he held that the petition stated a cause of action.
At the close of plaintiff’s evidence in chief defendant unsuccessfully demurred to the evidence. At the close of the whole case defendant, by a mandatory instruction asked and refused, again challenged the sufficiency of the whole proof, and now assigns error on both rulings. Allied in scope, they may be considered together. We think them well disposed of below, because : It must be allowed on this record that plaintiff put in substantial proof on the averments of its petition. If the petition be sufficient to state a cause of action, as we have just ruled, and if it must be allowed (as we have just held) that there was substantial evidence sustaining the averments, then the conclusion is inevitable that a case was made for the jury. In that view of it there could be no error in letting it go to the jury. This defendant (assuming for the purposes of the present point that the proof was competent) had notice of the sensitiveness of the stored food product, to damage by water and to be ruined by filthy water. Common sense teaches so much, when, as here, it knew the nature of the product. Besides, every barrel carried a red letter notice of danger from water and appealed to the bailee for protection. The means of preserving it from water by ordinary cáre were at hand, if used. On the facts here, it must be held to have notice that it had installed no device to protect the basement from backwater from the sewer. It must be held that to have notice of those immutable laws of nature which drive water back through a sewer when there is a wall of water intercepting its outflow. Even a boy knows that when the great stream is at a flood, the little one running into it swells with backwater and seeks every available outlet. Sewers are but closed streams and obey the same natural laws. So, defendant had warning of the unprecedented rain, the flooded streets, the bursted banks of Jordan, that water was
Some further observations on this head are not afield, to-wit: The answer counted on assumption of risk and contributory negligence as defenses. But the proof put in on that behalf by appellant, if any, is not of a character allowing the case to break on demurrer. In fact, without going into details, we see no contributory negligence on the part of plaintiff in dealing with the product after the flood, and that is the precise place and time the shoe on contributory negligence is said to pinch. Both sides did the best they knew or could in the morning, but the die was cast, the problem was then insoluble, the ill then past all cure— you can’t make bad eggs good. When a dirty sewerage has once come in contact with a dried egg product designed for human use, has this court any call to higgle over the question of making that contaminated sometime food fit for cakes and custards? We hear none; we see none. By agreement, both parties tried freezing and — then hogs. The last was a happy stroke, the fittest of the twain; for we have no hesitation in holding that all eggs are eggs to that four-footed eater, whose appetite runs to quantity more than delicacy of taste, so far as we stand advised.
The law of assumption of risk in this jurisdiction excludes the assumption of risks arising from defendant’s negligence and since in the case at bar if there was no such negligence there was no case at all, it is not clear what we have to do with assumption of risks on demurrer.
Both demurrers were well ruled.
III. Of the instructions.
(a) Plaintiff’s instructions are criticised on the following grounds;
*696 “1st. Nos. 1 and 2 assume that all of the goods were damaged. This was a distinct issue in the case.
“2nd. Said instructions ignored entirely the evidence showing the damage to have been an act of God and entirely ignored the manner in which the basement was flooded; and entirely ignored the question of proximate cause and entirely omitted to define the measure of ordinary care under the circumstances of the case.
“3rd. Said instructions absolutely i’gnored the question of the duty of plaintiff arising from its acquiescence in the place of bailment, its assumed knowledge of the danger to which the goods were exposed and its exclusive knowledge of the ingredients and value of the property.”
When these instructions' (q. v.) are laid side by side with the criticisms, we look in vain for sound matter in the latter. Neither ore tenus nor in printed argument was there any evolution of the quoted criticisms demanding observations beyond this, to-wit, those instructions, when fairly construed, are their own best answer to the shafts of criticism levelled at them. They were succinct and pithy, but plain, fair and full. They deserve praise, not blame, from the court. The point is disallowed to defendant.
(b) Defendant complains of the refusal of twelve instructions. Attend to them.
(1) Of those refused number one is the mandatory instruction.
Number three was also in effect a mandatory instruction and therefore properly disallowed.
(2) Number six was in the same class in part. Ignoring the issue of negligence it declared as a matter of law that the damage was caused by the act of God. Having taken that stand the instruction at great length then goes on with animation and a palpable smack of argumentation in defendant’s behalf to explain the negligence counted on in the petition, what is meant by ordinary care, the burden of proof and
(3) Number four (Nota teñe: Defendant had two number fours — one given) restricts the recovery to nominal damages on the theory there was no evidence, of the market value of the goods. The fact being contra, the instruction was bad.
(4) Numbers two and five withdrew from the jury the conversations with, and the declarations of, Grant Trammel. This on the theory they were not binding on defendant. They also withdrew from the jury the evidence of a certain witness, Shields, on the construction of the drain for the basement and the back flow of water therein at that time. We have heretofore pointed out that Trammel was defendant’s subforeman under Meyer, its general manager, and had charge of the storage department and stored goods. Notice to him and conversations with him within the scope of his employment and pertaining to the goods stored, while in the course of the storage and according to the usual course of business, as here, were competent.
So, defendant stands charged with notice of the construction of its own drains at a low grade and the absence of any device to keep out back flow from sewers. How the water got in was a legitimate subject of inquiry. The low grade was germane to that inquiry. Hence, on either ground the court did right in refusing to take from the jury the evidence of Shields as well as the conversations with and declarations of Trammel.
(5) Having already received an instruction (hereinbefore copied, to-wit, one given and numbered four, q. v.) defendant asked the following:
*698 “7. In determining the question of negligence or no negligence you are further instructed not to consider what did happen or what was possible to happen, but what was probable to happen from such a storm as ordinary care means to anticipate what, is reasonably probable to happen.
“You are therefore, admonished that the fact that the basement was flooded as it was is no evidence whatever of negligence and is no evidence whatever that the defendant should have reasonably anticipated such flooding; nor is the fact that the property was damaged evidence of negligence, nor should such fact be considered by you in determining the question of what a reasonably prudent man would anticipate as a probable result of the storm.”
It will be observed that the last paragraph of refused instruction seven is but a paraphrase of defendant’s instruction four given on its own prayer. In its first paragraph it hazards giving the meaning of “ordinary care” to be “to anticipate what is reasonably probable to happen.” We know of no such definition of “ordinary care” as that, and since ordinary care was properly defined in other definitions given at defendant’s request there was no error in refusing the instruction.
(6) Instructions eight, nine, ten, eleven and twelve were also properly refused. Number eight restricts the attention of the jury to the flooding of the basement in a certain way, to-wit, “as it was flooded,” meaning thereby that unless the jury could find under the evidence that defendant could anticipate the precise way the water got into the cellar, they should find for defendant. Clearly that was not the law. If under all the circumstances (to-wit, from the prolonged rain, the downspouts connecting themselves with the drain, the low sewer grade, the enormous volume of surface water, the high stream, the absence of all protecting de
Instruction nine runs on the theory of assumption of risk on the part of plaintiff and its contributory negligence. Now, there is not a vestige of testimony, as we read this record, showing plaintiff guilty of contributory negligence after the flood. So, that part of the instruction directed to assumption of risk, if proper in any case, was not proper in this case. It reads: “So you are instructed that if plaintiff through its officers had knowledge of the condition, structure and location of said basement at the time it placed its goods therein, plaintiff assumed all damages reasonably incident to such storage. ” If by that instruction it was meant that if plaintiff knew there was no device for keeping out backwater, knew of the low grade from the district sewer, knew the grade from the basement floor above the main sewer, etc., such knowledge impaired the right to recover, then it is not based on the evidence. So, the instruction proceeds on the assumption that defendant was relieved of all duty to use ordinary care under the extraordinary circumstances of the case in watching for the encroachment of water and in removing the goods on the appearance of danger. Otherwise put, it assumed defendant’s negligence was “reasonably incident” to a bailment in a basement. Is that not plaintiff’s assuming the risk of defendant’s negligence in the teeth of the law as we always write it? Clearly, if given, it would have misled the jury by turning their attention away from the real issue, to-wit, defendant’s own negligence.
Instruction ten has the same vice as number eight, and without any evidence of plaintiff’s contributory
Instructions nine and eleven had like vices. They furthermore put the boot on the wrong foot. They, in effect, made it the duty of plaintiff to take care, of the goods, to watch the effects of the storm on the basement and remove the goods from the basement on need of it, despite the fact that defendant admitted itself to be a bailee for hire, precisely as charged and proved. That proposition is a somewhat novel and anxious addition to the conventional law of bailments, and to the duties of the bailor. We cannot approve of it as now advised, but dismiss it with this suggestion: If that view be ever adopted, then anothér question springs, to-wit: Will a bailor also be held guilty of negligence in not watching out for the bailee’s negligence and in not intercepting its effect? Up to this time there as been no general doctrine known to us requiring A to act on the theory that B, who owes him a duty, will be remiss or negligent in the performance of it. The general acceptable doctrine runs the other way. [Crawford v. Stockyards Co., 215 Mo. 394.] ’Tis well to consider the end on that road before we set put.
Because of a contention made by defendant’s learned counsel in this connection, we, make this observation: If the bailor alone had knowledge of the character of its egg product and its susceptibility to deterioration from exposure to filthy water and of the necessity of keeping it dry, another question might be here — one not here on this record, and on which we say nothing at this time.
The premises all in mind, we find no error in refusing defendant’s instructions; and this brings us to the final question in the case we' take next under the head:
Under the head of “assignment of errors,” defendant" specifies many. However, in its brief and argument it lays no stress on some of those specifications.' In this court, under recognized practice, such pretermission is tantamount to their abandonment as reversible error. We need consider only those brought forward as live matter in the brief, the others not being worth while.
(a) Of the admission of evidence.
(1) On the theory that the proof shows Grant Trammel was not the agent or foreman of defendant in charge of the storage department, it is contended that conversations with him and statements made by him during the course of the storage and pertaining to it were not binding on defendant and that notice to Trammel (for instance, of danger) was not notice to defendant. The ruling hereinbefore made on defendant’s refused instructions, seeking to take that evidence from the jury, disposes of the point adversely to defendant.
In this connection a subsidiary point is somewhat faintly made., to-wit, that evidence was erroneously admitted tending to show there was a room above the basement with empty space suitable for storing goods and a freight elevator operated by electric power connecting the basement with this room and usable by one man. We see no error in admitting that testimony. Its tendency was to show means at hand and ready for use to prevent damage by water. It was pertinent on the question of negligence. Defendant warmly maintains the theory that the burden was on plaintiff to show negligence. So it was, under the allegations of the petition and the form of the action. Now, take a case: If the goods, with the permission and procurement of plaintiff and because of the low rate, had been
(2) It is next argued that the testimony of plaintiff’s witness, Shields, descriptive of the low grade of the basement drain from where it connected with the district sewer up to its connection with the basement floor, was incompetent. That identical question was necessarily held in judgment in the ruling on defendant’s instruction having for its office taking such testimony from the jury. When we held that instruction properly refused, as we did, it was tantamount to a disallowance of the present point.
(b) Of the exclusion of testimony offered by defendant.
In its brief defendant makes the following point in the following words: "The court erred in excluding the testimony of the witnesses McCann and McDaniel, because such testimony affected directly the issue on the measure of damages.”
Turning to the record to. catch the application of the contention, we find defendant put on the stand a Mr. McCann. It seems he was a present tobacconist, but a sometime manufacturer of crystallized eggs. He was never connected with plaintiff company and was not familiar with its methods of manufacture or the character and quality of the eggs used by plaintiff in its product. Despite his knowing nothing about plaintiff’s plant or the quality of the eggs used, defendant sought to show by him that the eggs generally used by such manufacturers were not merchantable hens ’ eggs Dr even second class eggs, but that such manufactursrs generally search out unfortunate eggs, unmerchantable and broken eggs. The court (having first ascertained by inquiry of that witness that the offered testimony did.not relate to plaintiff’s product, but re
Mr. McDaniel was a banker and owned hogs. He got from defendant, to feed to his hogs, what was left of the stored egg product after the flood and after plaintiff had rescued all of it it deemed fit for human use. The record shows that while on the stand for defendant a leading question was asked him. It was excluded and he was allowed to answer a proper one. He was allowed to describe the condition of the product in his barrels. His description was to the effect that the product in the center of the barrel differed from that coming in contact with the staves. "The outside was a kind of paste, but the inside was granulated. On some, paste was thicker than on others. The general average I would judge about one and one-half inches.” He was allowed to explain what he meant by “granulated” and said he never had seen any crystallized eggs except in those barrels. Some of the barrels had been opened and some not, some were full and others not. Finally he was asked this question: “Do you know the appearance of those barrels you speak of that hadn’t been opened was different from the ones that had been opened?” On objection he was not allowed to answer that question, and we take it there is where the alleged error supposably lurks. There was no tender of any proof at the time. He was allowed to tell what he saw and to describe the contents of the barrels and if he had answered the question asked and had said there was a difference, then, in order to make anything of his testimony, the next and vital question must have been: In what did that
From the conclusions announced it appears that on a good petition and a fair trial in admitting evidence and giving instructions, the jury found defendant guilty of negligence as bailee of plaintiff’s valuable property. We are of opinion that on the record here we ought not to interfere with the verdict. Let •the judgment be affirmed.