Opinion
No. 3613.
February 22, 1929. Rehearing Denied March 14, 1929.
Appeal from District Court, Bowie County; Hugh Carney, Judge.
Action by H. K. Stewart against the Southern Ice Utilities Company. Judgment for plaintiff, defendant appeals, and plaintiff cross-assigns error. Affirmed.
The suit was brought by the appellee to recover damages on account of material deterioration in the quality and value of eggs stored in the appellant's cold storage warehouse, due to alleged negligence in the particulars, respectively, of permitting temperature of room to become too cold and in not maintaining the proper temperature, of stacking the egg cases so close together as not to admit of the free circulation of cold air, of permitting dampness and water to accumulate in the room, and of exposing the eggs to the odor and taint of lemons stored in the plant. The appellant answered by general denial, and specially pleaded that the condition of the eggs at the time of their withdrawal by appellee was not due to any negligence of appellant, but was such only as naturally results to eggs in storage, and especially when stored for a long period of time as done in this instance; that the eggs stored were of that particular class of eggs such as rapidly deteriorate in quality through operation of natural causes in the keeping in cold storage. In a trial without a jury the court entered judgment for the plaintiff.
The appellant operates a public cold storage plant, the refrigerating process in use being the generating of cold by "chloride of brine refrigerated by an ice-machine" expanded directly into the pipe service of the rooms. The house consists of a basement, ground floor, and two floors above. The walls of the storage rooms are of brick, and the floors are of cement. The walls, floors, and ceilings of the rooms are tightly lined with cork four inches thick. The storage rooms are separated by hallways and have no openings except one door to each room, which door is fitted with a gasket placed around the edge of it. The doors are kept closed and the rooms are air-tight when the doors are closed. The evidence shows, and the pleading does not question, that the building as such is suitable and fit in all respects for cold storage purposes.
The appellee, as a patron, on April 15 and April 30, 1920, deposited eggs with appellant for preservation. The agreement was, as stated by appellee, viz.: "Under agreement that they were to stay there and be refrigerated until January 1 following, if I wanted to keep them there that long, at the season's rate of 50 cents per case." The agreement expressly excepted "damage to goods for other reasons" than through "temperature only." The total 1.500 cases, of 30 dozen eggs in each case, were delivered by appellee, and they were placed in cold storage by appellant in a room on the second floor of the building. It was admittedly shown that eggs are of especially delicate nature and "are classed as a perishable commodity, and will not keep in storage indefinitely," and that "in storage there is a difference in where eggs are produced and in what month they are laid in." It was proven that there is an inherent difference in the keeping quality, in storage and out of it, of eggs produced and generally marketed in Southwestern Arkansas, Southern Oklahoma, and Eastern Texas, from the states of the Middle West and Northwest. The eggs marketed during April in the first-named states are for the most part practically what is termed "grass eggs," which is explained as "eggs with quite a per cent. of water, with little quality, and very porous." This condition is due to hens being allowed to eat excessively of fresh grass. It was further shown that the yolk of the "grass egg" after a time in storage will normally and naturally turn dark, and the white will to some extent become watery.
As testified by appellee: "I bought these eggs from around in Southwest Arkansas, different places, and they came in by freight on trains, express, and on trucks over the dirt roads. I do not know from what farms they were gathered up. * * * They were gathered up in April. I did not see the eggs before they were delivered at my place of business. * * * When those eggs were delivered at my plant in Texarkana we went through enough of the cases to satisfy ourselves as to the quality of them, through the process of candling them with a one hundred per cent. watt incandescent light. * * * All those eggs I stored with the defendant were graded, and were first grade A-1 standard storage packed eggs. We graded out the small, dirty and cracked eggs."
According to the evidence in behalf of the plaintiff, the cases were stacked one upon the other and in rows or tiers adjoining. Between the rows or tiers no strips were placed so as to leave an open space. Between each case and the one on top of it there were inserted strips of plank about one-fourth or three-eighths of an inch thick, leaving that much open space between the cases. According to the evidence in behalf of the appellant, a piece of plank 2x4 was laid at the bottom for the cases to rest on, and a plank one-half inch thick was inserted between each case and the one above it, and a plank between three-fourths and one inch thick was inserted between the tiers or rows, leaving an open space of an inch between all cases and the rows or tiers. It was shown without dispute that an electric oscillating fan was placed on top of the eggs to keep the air circulating.
After storing the eggs in April, appellee went on one day early in August, September, and October to withdraw cases of eggs from storage for sale on the market. He testified that at the time he went there in August and in September he saw lemons stacked in the hallway next the room the eggs were in, and when the door was open to enter the egg room the odor of lemon entered the room and he smelled it there. There is evidence that the employees opened the door for inspection of the room several times each day. Appellee further stated that water had accumulated on the floor of the egg room "shoe mouth deep, and extended into the egg room for eight or ten feet." The water was "along the sides of the coolers." He further stated that on the visit in October the same condition existed as to the water on the floor, but that there were no lemons stacked at that time in the hallway. According to the evidence in behalf of the appellant, some boxes of lemons were left for one day in the hallway in August, but never thereafter. That the smell of lemons could not penetrate through the walls of the room. That the floor of the room was level, and no accumulation of water was permitted to remain on the floor, but at once upon the floor's becoming damp, or upon the accumulation of water thereon, it was mopped up. That a drying apparatus with a fan on it was installed in the room to take up moisture, and that it was in operation all the time. In January following the appellee withdrew from storage for sale the remaining 1,188 cases of eggs. According to appellee's evidence, when the cases were taken out at the times before January it was discovered that the eggs did not keep up in good condition and quality in storage. They were for the most part "in bad order, the yolks were dark and they had watery whites in them and smelled musty and full of odors." He sold them, on account of such condition, for a greatly lower price. There is evidence on the part of appellant that cases of eggs belonging to other parties which were stored in the same room during five months of the same time were not damaged or injured. The eggs withdrawn in January were, according to appellee's evidence, in bad condition and unsalable in local markets for eating. He then shipped them to Chicago and sold them at a lower price. According to evidence in behalf of appellee, the eggs were discovered to be in large part contaminated with the odor of lemons, mouldy, and with dark yolks and watery whites. That eggs would keep in good condition for ten months or more in proper storage. That refrigerated eggs naturally and "customarily" are lower in quality to the extent "of a dozen and one-half to the case." That odors of lemons will naturally be absorbed by eggs, and such odors greatly lower their quality and market price. That mould is caused by dark yolks and decay. There is proof by appellee that the storage room should be kept "bone dry," and there is proof by appellee that moisture is necessary to preserve the freshness of eggs in the process of refrigeration. On the other hand, there is abundant evidence by appellant going to show that the condition of the eggs might have resulted solely from natural causes of their own delicate and perishable nature and from being kept in refrigeration for a long time.
The court made the following findings of fact:
"I find that between April 15, 1926, and April 30, 1926, that the plaintiff H. K. Stewart, doing business under the name of Stewart Produce Company, delivered to the defendant at its plant in Texarkana, Texas, for storage in its cold storage plant fifteen hundred cases of eggs, consisting of thirty dozen per case, and that when said eggs were delivered to the defendant as aforesaid they were properly packed in good cases, and that said eggs, when delivered to the defendant, had been graded and were A-1, first-class No. 1 eggs, and that the same were fresh April eggs at the time they were stored and that all small, cracked and dirty eggs had been removed and taken out of the current receipt eggs, and no such eggs were included in those stored; and that all grass eggs, as far as it was possible to do so, had been eliminated, and no grass eggs in so far as it was possible were included in the eggs stored by the plaintiff with the defendant.
"I further find that the eggs stored by the plaintiff were stacked by the defendant in one of its cold storage rooms, and that the defendant, its agents, servants and employees in charge of said storage room, did not properly stack said eggs, and that they were stacked too close together, and that by reason of said eggs being stacked too close together, that there was not sufficient room left between said egg cases to permit the free circulation of the air in and through said cases of eggs, and that by reason of same said eggs became deteriorated and damaged.
"I further find that the defendant, its servants, agents and employees in charge of its cold storage plant, negligently permitted the cold storage room where the plaintiff's eggs were stored to become too damp, and that thereby the plaintiff's eggs were caused to be damaged.
"I further find that during the time plaintiff's eggs were stored in the defendant's cold storage, that the defendant, its agents, servants and employees negligently permitted lemons to be stored near plaintiff's eggs, and that thereby odors from said lemons permeated the eggs and injured and damaged them.
"I further find that the defendant, its servants, agents and employees were guilty of negligence in improperly stacking the eggs as found in paragraph three of these findings; and that they were guilty of negligence as set forth in paragraphs four and five hereof, and that all of said acts of negligence were the proximate causes of the damages to the eggs as hereafter found by me.
"I further find that the plaintiff began to withdraw the eggs above referred to from the cold storage plant of the defendant on August 26, 1926, and that at said time said eggs were in a damaged condition, which had been caused by the acts of negligence of the defendant as above set forth.
"I further find that there was a market for the plaintiff's eggs in the Texarkana territory in the fall of 1926, and that if plaintiff's eggs had been properly handled by the defendant, and if the defendant had not been guilty of the acts of negligence above found, the plaintiff's eggs would have been of the reasonable market value of Ten and no/100 ($10.00) Dollars per case.
"I further find that at least ten cases of the plaintiff's eggs involved in this suit were a total loss; this ten cases being a part of the eggs withdrawn by the plaintiff in the fall of 1926, and prior to the shipment of the 1188 cases that he shipped to Chicago.
"I further find that the plaintiff shipped 1188 cases of eggs involved in this suit to Chicago, in January, 1927, and that they were sold at the best market price obtainable at Chicago at that time, and that plaintiff received therefor $6.00 per case, less the freight and icing charges that he had to pay.
"I find that the plaintiff sustained a loss of Four and no/100 ($4.00) Dollars per case on the 1188 cases shipped to Chicago, not including the freight and icing charges that he was compelled to expend in getting said eggs to Chicago to sell them.
"In fixing the damages to the plaintiff in this case, I find that by reason of the negligence of the defendant as herein found, that plaintiff was damaged Four and no/100 ($4.00) Dollars per case on 1188 cases of eggs, which aggregates Four Thousand Seven Hundred Ninety-Two and no/100 ($4,792.00) Dollars, and add to that freight and icing charges of Nine Hundred Forty-Three and no/100 ($943.00) Dollars, aggregates Five Thousand Seven Hundred Thirty-Five and no/100 ($5.735.00) Dollars. I deduct from this ten per cent. for the possible natural deterioration of said eggs, if there had been no negligence in the refrigeration of the same by defendant. I deduct an additional ten per cent, from that gross amount to cover grass eggs that might possibly have been included in the eggs stored by the plaintiff with the defendant: and I find that by reason of the acts of negligence of the defendant as herein set forth the plaintiff has been damaged in the sum of Four Thousand Five Hundred Eighty-Eight and no/100 ($4,588.00) Dollars."
King, Mahaffey Wheeler, of Texarkana, for appellant.
Keeney Dalby, of Texarkana, for appellee.
Appellant urges on appeal the two points that the findings of fact as made by the trial court were not only clearly contrary to the preponderance of the evidence, but that the evidence was legally insufficient to show actionable negligence. It was admittedly proven that the appellee delivered to appellant a large number of cases of eggs in April, 1926, for preservation by means of cold storage until January following, subject to be sooner withdrawn at the option of appellee. At the time of delivery to appellant the eggs were fresh eggs, sorted, graded, and packed in suitable cases or boxes. When the eggs were withdrawn by appellee, the evidence abundantly shows, and there is but slight evidence to the contrary, they were discovered to have become deteriorated in quality, the yolks being dark and the whites of thin watery nature, and affected with the odor of lemons. The trial court concluded that the condition of the eggs at the time of withdrawal was occasioned or contributed to by specific negligence in the particulars, respectively, of uneven distribution of temperature to the eggs, of maintaining excessive moisture in the room, and of permitting lemons to be stacked near enough to the eggs for the latter to absorb the odors therefrom. In these contingencies, or any of them, if warranted by the evidence, the appellant would be legally liable. According to the evidence in behalf of the appellant, considered of itself and standing alone, the cases of eggs were stacked in the room in full accord with the most approved practice and way done in all cold storage plants. The cases were rested on a 2x4 plank, with a half-inch strip inserted between the cases and with an inch strip inserted between the rows or tiers of cases. In the stacking an open space of an inch or more was left between the rows and between the cases, and such condition continued, to Freely and sufficiently admit of even distribution of temperature alike to all the eggs. On the other hand, the evidence in behalf of the appellee, considered of itself and standing alone, shows that the cases were rested on a 2x4 plank, and the rows or tiers of cases were nade to closely adjoin each other and were without strip or space left between them, and the cases were made to rest one on top of the other, with only a strip of between one-fourth and one-half inch between them. There was considerable proof that the proper practice and ways, as adopted by large storage plants, to secure even distribution of temperature, was to allow an open space between the cases themselves and between the rows or tiers of cases. On the other hand, there was proof by appellant that in some cold storage plants egg cases were customarily stacked in rows adjoining each other, without strips between them, and that such way of stacking sufficiently distributed the temperature for safe preservation. The effect of the court's finding upon this conflicting evidence was to sustain the appellee's contention as to the way the stacks were made and that such way of stacking prevented sufficiently even distribution of temperature alike to all the eggs.
Although the appellant did not expressly contract to stack the cases of eggs in any particular way, yet, in the absence of any agreement, the law imposed the duty upon it to use that degree of care in the preservation of the eggs which may reasonably be expected from a person of ordinary prudence under the circumstances. Its obligation was to keep the temperature of the room at the ordinary and usual cold storage temperature and evenly distributed alike to the eggs. There would be default in the duty if the temperature was unevenly distributed, although the proper temperature of the room was maintained. And such default may be held to arise, as the trial court found, upon failure to do that usually done in cold storage rooms and most generally thought to be sufficient to evenly distribute the temperature to the chattels undertaken to be preserved. Whether the condition of the eggs as discovered at the time of the withdrawal from storage for sale was in fact occasioned or contributed to by uneven distribution of temperature was entirely dependent upon the inferences reasonably allowable to be drawn by the court in the circumstances. Nonconformity with the approved practice of stacking the cases in order to allow even distribution of temperature became a circumstance, though not conclusive, tending to show insufficient temperature to all the eggs, although sufficient for part of them. The act of omission allows such an inference. An uneven distribution of temperature, or as called in the evidence lack of "sufficient circulation of air,' was shown to work injury to the preservation of eggs, in tendency to cause or contribute to cause the yolks to become dark and the whites thin and watery. The eggs were discovered to be in that condition when withdrawn from storage. And there is evidence that eggs of the kind that were delivered by appellee for storage will ordinarily for the most part keep up in quality for the length of time the eggs in question were kept in appellant's plant, under maintenance of proper temperature if such temperature is evenly distributed. And there is evidence that at the time of delivery to appellant the eggs were fresh eggs, sorted, graded, and packed in suitable cases or boxes. The special circumstances go to show that the loss resulted from or was contributed to by the negligent act in the natural order of cause and effect. There is not an absence of substantial evidence to support the court's finding that there was an uneven distribution of temperature and that it proximately caused or contributed to the damaged condition of the eggs. It is true that although the eggs were delivered in fresh condition to appellant, the mere fact, standing alone, that they were redelivered to appellee in inferior condition, would not justify the presumption of negligence on the part of appellant. That rule does not apply to chattels which deteriorate or decay through operation of inherent or natural causes. Patterson v. Wenatchee Canning Co., 53 Wn. 155, 101 P. 721. Eggs are, as admittedly appears, inherently of a delicate and perishable nature. They are liable to decay and do not long stand up under ordinary circumstances. The yolks normally turn dark and the whites become thin and watery. Especially, as shown, are "grass eggs" inherently of very delicate and perishable nature, out of or in storage. But the finding of the court is not based on presumed negligence, but upon affirmative acts of specific negligence. And although eggs have the natural tendency to let down in quality, yet it may not be said that such would necessarily happen notwithstanding an act of negligent omission to use reasonable care for their preservation. A negligent act, such as failing to evenly distribute temperature, may hasten, proximately cause or contribute to, the deterioration in quality. Such consequences could result from such negligent act in the natural order of cause and effect. It is not legally necessary that the negligent act solely cause the deterioration or loss. The case is proved if the act or omission was in itself a want of ordinary care and prudence and immediately, and not remotely, contributed to the deterioration or loss. The court's finding, as evidently intended, was to the effect that the negligent act, as found, did not proximately cause or contribute to cause the entire loss sustained, but only in the proportion of 80 per cent. of the 1,188 cases. As found, in effect, 10 per cent. of the loss sustained was caused by natural causes that would necessarily have happened notwithstanding the negligence. Also that of the loss sustained 10 per cent. was occasioned solely through the fault of appellee in delivering faulty or unfit eggs for storage. There is no complaint on appeal of excessive damages.
It was further proven by appellee that lemons were stacked in the hallway next the room in which the eggs were stored, and that they were there in September and October; that when the door of the room was opened, although open for a very short time, the odor of the lemons came into the storage room; that the employees opened the door for inspection of the room several times a day; that eggs naturally and easily absorb odor, and it renders them of lower quality and value. On the other hand, the appellant proved that the lemons were in the hallway for only a part of the day, until they could be placed in a different place; that no odor was in the egg room; and that odors could not penetrate the walls of the room from the hallway. Upon this conflicting evidence the court, in effect, sustained the appellee's contention. There is evidence showing that the eggs when withdrawn from storage had the odor of lemon, and that such condition affected the market value. There is proof that the eggs were shipped to Chicago in refrigerator cars that carry fruit and other products. But there is no evidence going to show that such cars had recently transported lemons, or that odors therefrom were in the cars. In such situation the question of negligence proximately causing or contributing to cause the injury complained of was necessarily one for the trial court, and his finding is conclusive. A liability was established for the act. Smith v. Diamond Ice Storage Co., 65 Wn. 576, 118 P. 646, 38 L.R.A. (N.S.) 994; Holt Ice Cold Storage Co. v. Arthur Jordan Co., 25 Ind. App. 314, 57 N.E. 575; Leidy v. Quaker City Cold Storage Warehouse Co., 180 Pa. 323. 36 A. 851; Hunter v. Cold Storage Co., 75 Minn. 408, 78 N.W. 11.
It is believed that the evidence does not warrant a finding that excessive moisture proximately caused or contributed to cause the injury to the eggs. It is affirmatively shown that no water accumulation existed since October. The mechanical devices operated to take up excessive moisture, and naturally did so during the several months after October. And it affirmatively appears that the eggs were taken from the refrigerator cars and kept in a storeroom for two days. This fact reasonably may, and probably did, account for the sweat or mould of the eggs. At least the condition of the eggs as to moisture or mould was consistent with causes other than the negligent act complained of. But the elimination of this fact does not affect the case, as the other negligent acts were sufficient to have produced the loss.
Having carefully considered the case, we have reached the conclusion that we may not, in view of the evidence, disturb the court's findings, except as to the ground of excessive moisture. The other errors assigned complaining of admission of evidence, should, we conclude, be overruled.
Appellee argues on cross-assignment of error that judgment should have been entered in his favor for the ten cases of eggs as found in the finding to be "a total loss." It is believed that the court intended to deny, as he did do, recovery for this lot of eggs, upon the ground that such condition would have resulted notwithstanding negligence of appellant. At least, we cannot say from the record that the court did not intend to so hold. He found that in the early withdrawals the eggs "were in a damaged condition" which was caused "by the acts of negligence." He further specially found that ten cases of the eggs "were a total loss," but did not find that such "total loss" was due to negligence.
The judgment is affirmed.