Opinion
No. 21667.
October 6, 1952.
APPEAL FROM THE JACKSON COUNTY CIRCUIT COURT, WALTER A. HIGBEE, J.
O. L. Houts, Hogsett, Trippe, Depping, Houts James, Kansas City, for appellant.
Warren S. Earhart, Kansas City, for respondents.
Defendant appeals from a judgment against it for alleged damage to a carload of tomatoes shipped from Mexico to St. Louis, Missouri.
The petition charged that "Defendants negligently and carelessly transported said car of tomatoes in that they delayed the shipment thereof en route and carelessly and negligently operated heaters in said car en route when not necessary and when the operation was harmful to the contents of the car and in conflict with shipping instructions given for the transportation of said car. As a result of defendants' careless and negligent acts aforesaid the tomatoes in said car were damaged * *." The answer denied the averments of the petition and pleaded that the alleged damage was directly caused by the acts of the shipper and plaintiffs, and by the inherent perishable nature of the tomatoes. Plaintiffs elected to go to the jury only on the averment that defendant negligently operated heaters in the car in conflict with shipping instructions.
On appeal defendant complains of the refusal of the trial court to direct a verdict in its favor, of errors in the giving of plaintiffs' instruction A, of errors in the admission of evidence, and of the verdict being unsupported by the evidence and excessive.
Plaintiffs, owners of the carload of tomatoes in question, are car lot distributors of fresh fruit and vegetables to the wholesale trade. Ernest E. Fadler, one of the partners, is general manager. The carload of Mexican tomatoes was originally billed under ventilation service to Canada in a refrigeration car. It was loaded with 910 lugs or boxes of tomatoes, seven layers high. Transportation was commenced in Mexico by a Mexican carrier. Defendant received the car from the Southern Pacific R. R. Company at Tucumcari, New Mexico, and transported it to Kansas City, Missouri, where it arrived December 15. Plaintiffs ordered the car held in Kansas City for two days and on December 17 diverted the car to C. H. Robinson Co., St. Louis, Missouri. Defendant thereafter transported the car to its freight yards in St. Louis, arriving on December 20, and the Terminal Railroad delivered the car to Robinson Co. on December 21.
When the car arrived in Kansas City December 15, defendant installed two heaters and kept them burning until noon December 21, when the car was delivered in St. Louis. Heaters are installed to prevent freezing. There was evidence that the temperature was 10 degrees above zero on December 15 and for the next two days the temperature ranged from 6 to 9 degrees above zero; that tomatoes will freeze, in a refrigerator car, if the outside temperature remains at or near 10 degrees above zero for two or three consecutive days; that one heater should be installed when the outside temperature drops to 25 degrees and two heaters should be installed when the temperature reaches 10 degrees. Plaintiffs' witness Kunkel testified that the "operation of heaters for a few hours each day will prevent freezing and also prevent overripening"; that when the shipment arrived in St. Louis the temperature inside and at the top of the car was 64 degrees and that tomatoes will ripen rapidly at that temperature.
As evidence of the theory of negligence which caused the damage to the tomatoes, plaintiffs propounded these questions to witness Kunkel: "Q. Did you inspect, handle and sell these tomatoes on or about December 21? A. Yes. Q. * * * Assuming that the tomatoes were in the condition shown on the copy of the government inspection certificate attached as Exhibit A, * * * and assuming also that lighted charcoal stoves were placed in each bunker of the car on December 15, 1945 and kept burning until your inspection and while so burning the hatch covers of the car were kept closed and the plugs in, and assuming also that the car was diverted from Kansas City to St. Louis on December 17th and was due in St. Louis December 19th but did not arrive in St. Louis until December 21, do you have an opinion, * * * as to the cause of the condition of the tomatoes upon your inspection as stated by you? A. Yes. * * * State your opinion and if you wish, explain the reasons therefor and if you are of the opinion that transportation conditions were not normal, state wherein they were not." The effect of the witness' answer was that the continuous burning of the heaters with the hatches and vents closed caused the damage to the tomatoes, and that the proper procedure was to operate the heaters only part of the time. Defendant's evidence was to the contrary.
The evidence was conflicting whether plaintiffs authorized the installation of the heaters. However, defendant contends it had the right to install them without plaintiffs' consent pursuant to the published tariff relating to such matters.
Defendant's assignments and argument attacking plaintiffs' instruction A, and the failure of the court to direct a verdict in its favor, are so interwoven and overlapping that we think it is advisable to dispose of the various contentions without repeating the reasons under each point.
The material part of instruction A reads: "The court instructs the jury that if you find * * * that a carload of tomatoes * * * originally shipped from Mexico arrived at Kansas City, * * * on December 15, * * * and that the shippers of such carload had instructed the carriers to transport such car under standard ventilation, * * * and if you further find * * * that on such date (defendant) * * * placed or caused to be placed heaters in such car without any authority from plaintiff and maintained such heaters until December 21, * * * and if you further find * * * that the act of the railroad carrier in placing and maintaining the heaters in such car was negligent, * * * and as a result thereof the tomatoes * * * were damaged, * * * then your verdict should award plaintiff a sum equal to the difference between the fair market value of such tomatoes at St. Louis, * * * in such damaged condition caused by the negligence of the carrier, in so installing and maintaining such heaters, * * * and the fair market value of such tomatoes at St. Louis, * * * if not so damaged." (Italics ours.)
Defendant first contends that instruction "A" is erroneous because it predicates a verdict for plaintiffs solely upon a finding by the jury that defendant "placed or caused to be placed heaters in such car without any authority from plaintiffs." We think defendant misconstrues the instruction. The evidence was conflicting whether plaintiffs authorized the installation of the heaters and it was proper to submit that controverted fact issue, but that was only one fact to be found by the jury in arriving at a verdict.
Defendant also contends that it had the right (without plaintiffs' consent) to install the heaters as permitted by paragraph A, part 3 of Rule 530 of the Published Supplement No. 40 to the Perishable Protective Tariff No. 13. Under certain conditions and in certain territory, this tariff does authorize a carrier to supply heater service "when in its judgment it is necessary, unless otherwise instructed, * * *." Even if this tariff authorized the installation and maintenance of the heaters this should be done in a careful and prudent manner, free of negligence. Whether the weather conditions justified the installing of the heaters and whether they were properly maintained, as disclosed by the evidence, were questions of fact to be submitted by an instruction.
This brings us to a consideration of the next criticism of the instruction: that it gave the jury a roving commission to find negligence without hypothesizing sufficient facts to guide the jury in determining that issue. The settled rule is that a verdict directing instruction "should require the finding of all the facts necessary to sustain the verdict" or "must require the finding of all essential fact issues necessary to establish the legal propositions upon which the right to it is based." (Emphasis ours.) Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541, 542; LeGrand v. U-Drive-It Co., Mo.Sup., 247 S.W.2d 706, 711; Stanich v. Western Union Tel. Co., 348 Mo. 188, 153 S.W.2d 54, 56; Annin v. Jackson, 340 Mo. 331, 100 S.W.2d 872, 873; Knight v. Richey, Mo. Sup., 250 S.W.2d 972; Cantwell v. Zook, Mo.Sup., 250 S.W.2d 980.
The LeGrand and Knight cases, supra, discuss, and in certain respects, limit some of the broad language in the Yates opinion. But we think it is still the rule that an instruction covering the whole case and directing a verdict must submit all essential facts which, if the jury finds are true, will constitute liability of the defendant on the specific issue submitted. The difficulty lies not with the rule but with its application in a given case. There can be no stereotyped instruction which will correctly submit any issue of specific negligence in all cases. Essential facts differ in most, if not in all, cases.
The only facts submitted by instruction A, relating to the issue of negligence, were: (a) That the heaters were installed without plaintiffs' consent; and (b) that they were maintained from December 15 to 21.
Plaintiffs do not contend that the mere fact defendant installed the heaters without their consent was negligence or any evidence of negligence. They argue "that placing and maintaining heaters in a refrigerator containing fresh tomatoes which will be damaged by heat, continuously from December 15 to 21 is negligent when the custom and proper procedure is to operate the heaters only a few hours each day to keep the tomatoes from freezing but not continuously so the temperature in the car will rise to the point where the tomatoes are damaged by the heat." (Italics ours.) We have outlined the evidence concerning the need of installing the heaters and the proper manner of maintaining them, all fact issues; but none of those essential facts are hypothesized in the instruction. Under this instruction, the jury was at liberty to find negligent installation and operation of the heaters, without regard to the outside temperature and whether the hatches and vents should be closed and whether the heaters should be operated only part time. It seems to us that insufficient facts were submitted to guide and limit the jury in determining the question of negligence, and we so hold. See citations, supra.
However, plaintiffs contend that "when the fact of loss or damage to a shipment is shown, a presumption of negligence and liability arises against the carrier and it is not necessary for the shipper to point out the particular act of negligence causing the injury and places on the carrier the burden to explain away." In support of this contention, plaintiffs cite cases where recovery was sought against a common carrier on its common-law liability and where specific negligence was not alleged. Collins v. Denver R. G. Railway Co., 181 Mo.App. 213, 167 S.W. 1178; American Fruit Growers v. Cleveland, C. C. St. L. Ry. Co., Mo.App., 263 S.W. 488; Dietz v. Southern Pacific R. Co., 225 Mo.App., 39, 28 S.W.2d 395. That is not the theory of the instant case. Plaintiffs alleged and proved specific negligence and must submit such negligence. In Walton v. A. B. C. Fireproof Warehouse Co., 233 Mo.App. 693, 124 S.W.2d 584, at page 588, after reviewing many cases, this court said: "From the foregoing authorities, the rule seems to be settled in this state that where a petition alleges receipt of goods by a common carrier and its failure to deliver them under its contract of carriage, and also alleges that the goods were lost or damaged in a particular way through the negligence of the carrier, it then becomes incumbent upon plaintiff to prove the negligence as charged. In other words, in cases wherein recovery is sought against a common carrier on its common-law liability, it may be had upon the insurer theory and negligence need not be alleged, but under the rule as laid down by the Supreme Court, and other courts of this state, if the plaintiff goes further and alleges negligent acts of the carrier as the cause of the loss, such negligence must be proved."
The instruction cannot be approved on the theory of common-law liability.
Defendant also contends that instruction A was erroneous because it authorized an award of damages resulting from the heaters when there was no evidence of any damage caused by the heaters alone. It is true that Mr. Fadler, one of the plaintiffs. testified that he could not separate the damage done by delay of the shipment and the damage done by use of the heaters. But Mr. Kunkel, who inspected the tomatoes on arrival in St. Louis, testified that the overripe condition of the tomatoes "was caused by keeping lighted heaters in the car from December 15th to December 21st." There was other testimony from which it could properly be inferred that the maintenance of the heaters, as described, caused the damage. We are unwilling to say there was no evidence that the damage was due to the installation and maintenance of the heaters.
We hold that plaintiffs made a submissible case of negligence and damage resulting therefrom. It follows that the court did not err in overruling defendant's motion for a directed verdict.
Other questions raised on this appeal are not likely to occur at another trial and need not be discussed.
Because of the error in instruction A, the judgment is reversed and the cause remanded.
All concur.