Churchill v. Walling

GARDNER, J. Plaintiff recovered judgment against the defendant for damages, which he insists were sustained by the failure of the defendant to exercise that required degree of care in the storage of cotton left with the defendant as a warehouseman. [1] The cause was tried upon count 1, which will appear in the statement of the case. We think it needs no discussion to show that this count was not subject to demurrer interposed thereto. Section 21, Acts 1915, p. 661; Haas v. Taylor, 80 Ala. 459, 2 South. 633. [2-4] The condition of the cotton at the time of its delivery to the defendant was a very material inquiry, and a disputed question in the ease. It was proper, therefore, for the plaintiff to show that it was in good condition when it left his plantation. We are of the opinion, however, that the court erred in permitting the plaintiff to testify, over defendant’s objection, that between $2,700 and $3,500 worth of cotton was picked off of the bales, for which he received no pay. Plaintiff was not present when the cotton was reconditioned, and did not himself know how much was picked off, leaving that entirely to Kortretch, to whom he gave these pickings. There is proof tending to •show that the pickings had a very substantial value, and it was plaintiff’s duty to minimize, rather than increase his damage, but under his contract he was to receive no benefit whatever from these pickings. Under the proof, therefore, the evidence was patently bad, and the objection, though general, should have been sustained. Nor are we persuaded, by the amount of the verdict rendered, that the jury was not misled or influenced by this testimony. [5] The witness Kortretch was á cotton expert, and the one to whom the plaintiff sold this cotton. The testimony of plaintiff showed that he received a fraction over a cent per pound less for his cotton on account of its damaged condition, and that such damaged condition was due to the lack of ordinary care and prudence on the part of the defendant. But there was evidence tending to sustain the facts set out in the hypothetical question put to witness Kortretch by defendant, which will appear in the statement of the case. The objection to this question should have been overruled. Had the witness answered, under the circumstances set forth in the question, he would have docked the cotton as much as he in fact did dock it at the time he purchased, then this answer would have been very material to show that the market value had not been affected, nor the cotton damaged while in defendant’s possession. This was the pivotal point in the case and the admissions from the witness to this effect would have had a most material bearing upon this aspect of the litigation. We are of the opinion the court erred in sustaining the objection thereto. [6] Defendant’s counsel insist that the court erred in the oral charge in stating to the jury that the language in the warehouse receipt, to the effect that .the cotton was in a damaged condition, was not absolutely binding upon the plaintiff, but he had 'a right to explain the same. To this we do not agree. As between the parties these receipts were of a dual nature, taking both of the character of a contract and of a receipt; considered as a receipt, it was subject to explanation by parol. A. G. S. R. R. Co. v. Norris, 167 Ala. 311, 52 South. 891; St. L., I. M. & S. R. R. Co. v. Citizens’ Bank, 87 Ark. 26, 112 S. W. 154, 128 Am. St. Rep. 17. There was here involved no question as to an innocent purchaser, and therefore the court committed no error in charging the jury that the plaintiff was not absolutely bound by the language of this receipt, but could in fact show that the cotton was not in a damaged condition at the time of its delivery to the defendant. [7] The court refused the written charge requested by the defendant, to the effect that the fact that the cotton was damaged at the time it was delivered to the plaintiff did not raise the presumption of negligence against the defendant that it was damaged while in storage. In support of this action of the court, counsel for appellee cite the case of Davis v. Hurt, 114 Ala. 146, 21 South. 468, *512 where it is in effect held, that, if there be injury to goods during the bailment, the burde'n devolves upon the bailee ‡0 acquit bimself of the want of diligence in respect thereto. This but states a well-recognized, rule. 40 Cyc. 470. [8] We think, however, the facts of this case take it from out this general principle. The receipt accepted by the plaintiff upon the storage of his cotton expressly stated that the cotton was received in a damaged condition! While this is subject, on the part of plaintiff, to explanation by parol testimony, yet the language is not to be deprived of all effect. As said in St. L., etc., R. R. Co. v. Citizens’ Bk., supra: “As a receipt, it is prima facie, although not conclusive, evidence of facts therein recited.” Section 3 of the Acts of 1915, supra, known as the Uniform Warehouse Receipt Act, expressly provides that a warehouseman may insert in a receipt issued by him any other terms and conditions: “Provided that such terms and conditions shall not — (a) be contrary to the provisions of the act. (b) In any wise impair his obligation to exercise that degree of care in the safekeeping of the goods intrusted to him which a reasonably careful man would exercise in regard to similar goods of his own.” If the insistence of plaintiff be correct, then this language in the receipt is of no force. We are therefore of the opinion that under such circumstances as here disclosed, no presumption of law or fact arises against the defendant, but the burden rested throughout upon the plaintiff to reasonably satisfy the jury that the damaged condition of the cotton was produced for want of ordinary care and prudence on the part of the defendant as to the storage thereof. For the errors indicated, the judgment is reversed, and the cause remanded. Reversed and remanded. ANDERSON, O. J., and THOMAS and MILLER, JJ., concur.